The Metamorphosis of Slip and Fall
The Metamorphosis of Slip and Fall*
The Hon Justice D A Ipp AO**
1 Before I commence with my designated topic, there is something I would like to say two things about the legislative reforms to the law of negligence in personal injury actions.
2 The first thing is this. Many reforms have been made. Several of these were recommended by the panel in which I participated. Several were not. I approve of those reforms that the panel recommended. In many respects, the reforming legislation goes further, sometimes much further, than the recommendations. I expressed concerns about this two weeks ago in a paper I delivered at a conference to celebrate the eightieth anniversary of the publication of the Australian Law Journal. I said:
“Certain of the statutory barriers that plaintiffs now face are inordinately high. ... Small claims for personal injuries are a thing of the past. Establishing liability in connection with recreational activities has become difficult. Stringent caps on damages and costs penalties make most plaintiffs think twice before suing. Public authorities are given a host of novel and powerful defences that are in conflict with the notion that the Crown and government authorities should be treated before the law in the same way as an ordinary citizen. It is difficult to accept that public sentiment will allow all these changes to remain long-term features of the law.”
3 In 2005, in Landon v Ferguson[1] (with the concurrence of Hodgson and Santow JJA), I said:
“The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected. For example, the caps on damages under the Workers Compensation Act are lower than the caps under the Motor Accidents Compensation Act. Some workers’ injuries occur in circumstances where the workers are required to bring their claims under the Workers Compensation Act. In other circumstances workers are required to bring their claims for damages under the Motor Accidents Compensation Act. In yet other circumstances neither Act applies, but other legislation governs the claims. No detectable rational reason explains the difference in categories. In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn.”
4 Differences of this kind and lack of consistency in particular respects can lead to anomalies and unfairness; see for example State of New South Wales v Ball [2].
5 Secondly, I want to tell you a story recounted by Conor Cruise O’Brien, the great Irish statesman. It concerns a speech by Adlai Stevenson, a man well-known for having been twice defeated by General Eisenhower in close presidential elections. Adlai Stevenson eventually became the United States ambassador to the United Nations. He did so at a time when Conor Cruise O’Brien was the Irish ambassador. Delegates to the UN sit in the alphabetical order of the countries they represent. For that reason, when O’Brien, as the ambassador of Ireland, attended meetings at the UN, the Israeli ambassador sat immediately adjacent to him, to his right.
6 On a dark and miserable morning early in 1961, O’Brien was listening to Adlai Stevenson addressing the United Nations about the Bay of Pigs fiasco. Stevenson was explaining – falsely – that the United States had had nothing to do with the Cuban invasion. This was, as it had to be, a dreadful speech, full of obvious official lies. Stevenson was very uncomfortable with what he was saying. He was noted for his fastidious choice of words but the speech he read out consisted of great gobbets of untreated bureaucratic prose. Stevenson read this stuff as if he had never seen it before, which was probably the case. He stumbled over his words in a most uncharacteristic way.
7 While this unfortunate performance dragged on, the Israeli ambassador sat next to O’Brien, his face impassive. The Caribbean has never been a region of the highest priority for Israel. Adlai Stevenson at last came to his climactic peroration. “I have told you of Castro’s crimes against man. But there is even worse”, he cried. There are Castro’s crimes against God. “Fidel Castro has” – Stevenson turned his page and peered at his new one. “Castro” - he burst forth – “has … circumcised the freedoms of the Catholics of Cuba”. At this observation, the Israeli ambassador looked up sharply and turned to Conor Cruise O’Brien. “I always knew”, he muttered, “that, sooner or later, we would be blamed for this”. I have come to know how he felt.
8 I have sometimes thought that the recent history of the slip and fall cause of action can be told in the form of a modern legal cautionary fairy tale. It would go like this.
9 Once upon a time, there lived a diffident little cause of action called Slip and Fall. For very many years, this cause of action lived quietly and serenely in her own little onion patch (in a fairy story, one is allowed to be gender specific). There, Slip and Fall modestly operated, quite happy with her lot in life. At this time, she was under the protection of a stern and powerful guardian, called the Highway Rule. The Highway Rule blocked anyone interfering with Slip and Fall, but at the same time prevented her from operating outside her onion patch.
10 After more than 100 years of this serene existence, and despite the basic contentment that pervaded the life of Slip and Fall, shades of difference began to grow between her and the Highway Rule. These differences involved the limits of the onion patch. Save in exceptional cases, the Highway Rule prevented Slip and Fall from operating in cases of acts of non-feasance by a highway authority. She had to remain quiescent when a plaintiff tripped on an artificial structure. Much depended on whether the road authority was making a policy or operational decision. So, a great deal of argument ensued as to where the boundaries of the onion patch lay.
11 These boundary disputes made Slip and Fall dissatisfied. The grass beyond the onion patch began to look very much greener. She yearned to escape from the close embrace and control of her guardian, who had become tired and was regarded by many as old-fashioned. She began to lose her unambitious and modest disposition. She wanted to be free to roam around untrammelled by the Highway Rule.
12 In her dissatisfied state, Slip and Fall then took a fatally irreversible step. She called in aid the services of a terrible and fierce knight, Sir Ghantous Brodie, who was then, may I say, in his prime. Sir Ghantous made a violent assault on the Highway Rule and eventually prevailed. The final great battle took place in Garbar’s Tower, an imposing edifice occupied by seven all-wise High Wizards. Sir Ghantous Brodie obtained the support of four of the seven Wizards and thereby obliterated the Highway Rule.
13 “Free at last”, cried Slip and Fall. “No more guardian, no more boundaries; I have escaped the onion patch. I can roam where I wish.” But, alas, the grass on the other side was not as green as it looked. In the course of his assault, Sir Ghantous Brodie had kicked out at a few pebbles which rolled into a dark and deep lake. Living, almost somnolent, in the dark and gloomy depths, was a monstrous troll.
14 Appearances by this appalling being were rare, but there were rumours that he was becoming restless. The problem was that the pebbles that Sir Ghantous Brodie had kicked into the lake were not the first to tickle the troll. Worst of all, a large boulder, named HIH, had recently fallen into the lake and caused many waves. The troll gradually awakened from his slumber.
15 Now I am sure you realise that this troll was the personification of Legislative Tort Reform. He slowly rose from the depths and, as he surfaced, he called for aid from four ghastly ogres. These took the human form of a judge, a law professor, a surgeon and a mayor. The troll and the panel of ogres crawled out of the lake and burst into action. Apart from interfering with life in many ways, they proceeded to make Slip and Fall subservient to the troll’s will. They employed what some regard as instruments of oppression. These have become known as Limitations on Suing Statutory Authorities, The Resources Defence and Obviousness of Risk.
16 So, Slip and Fall’s freedom, in many respects, became more limited than when she lived her modest life under the Highway Rule. The perceived advantages of getting rid of the Highway Rule were subject to the law of unintended consequences. These consequences were not very pleasant to the little cause of action. She became subject to powerful constraints that she had not before experienced. Great knights, called Leading Silks, took notice of her when previously they would not have given her the time of day. And this attention was not always pleasant, though it was always very expensive. Also, Slip and Fall had to make several visits to Garbar’s Tower, when, before the assault by Sir Ghantous Brodie, decades would pass before this would occur. Many times Slip and Fall has failed when she would have been successful under the Highway Rule.
17 And so, Slip and Fall wonders whether Sir Ghantous’s victory was beneficial, and whether the grass outside the onion patch was truly greener. Maybe one day the great troll in the lake will be roused again; this time to free Slip and Fall. But after its extraordinary paroxysm, the troll is once again lying exhausted and apparently somnolent in the dark and muddy depths. Whether he will reverse some of his changes is a matter of speculation.
18 I will now turn to some black letter law. I propose to discuss, particularly, the statutory provisions that now apply to limitations on suing statutory authorities, the resources defence and obviousness of risk.
19 To roll back Ghantous v Hawkesbury City Council[3] , New South Wales enacted a partial immunity for highway authorities. Section 45(1) of the Civil Liability Act 2002 (NSW) provides that a roads authority is not liable for harm arising from a failure to carry out road work, or to consider carrying out road work, unless the authority has actual knowledge of the risk that materialises.
20 The effect of s 45(1) is that, unless a roads authority has actual knowledge of the defect in the roadwork, it will not be liable for a failure on its part to repair or remove the defect. This is a serious inroad into the abolition of the highway rule.
21 Perhaps the answer is to follow the example of the New York Plaintiff Lawyers’ Association, or, as they call themselves, the trial lawyers of New York City. The story is told by Spigelman CJ [4]. The city of New York attempted to control its burgeoning litigation bill by adopting a law to the effect that the city could not be sued for a defect in a road or sidewalk unless it had had 15 days’ notice of the specific defect. The New York trial lawyers established the BAPSPC. This acronym stands for the Big Apple Pothole and Sidewalk Protection Committee. The function of this committee was to employ persons to tour the streets and footpaths of New York continually and to note each and every blemish. The committee members would then, forthwith, give the city of New York precise details of each defect. Regular reports cataloguing the notices that had been given to the City were available for sale to trial lawyers. At any one time the total cost of curing the defects of which the City had been given notice were several billion dollars. In 2004 the Mayor of New York complained that in the calendar year of 2002 alone, the City received 5,200 maps from BAPSPC spotters that identified some 700,000 blemishes. Needless to say, the City has never successfully defended a case under the 15 days’ notice law.
22 The question of what is meant by “actual knowledge” in s 45(1) was recently considered in North Sydney City Council v Roman [5]. Two members of the Court of Appeal, Bryson and Basten JJA, held that, by that section, actual knowledge must be found in the mind of a council officer who has delegated or statutory authority to carry out the necessary repairs. On this basis, where no Council officer at a decision-making level has actual knowledge of the particular defect, immunity is conferred.
23 McColl JA dissented. Her Honour discussed the knowledge of persons such as ordinary Council workers, who learn of a defect in a road while acting in the scope of their duties and who are under a duty to report it. She held that their knowledge is to be attributed to the Council. This approach is consistent with the general law concerning the attribution of knowledge.
24 McColl JA observed [6] that the approach of the majority would discourage roads authorities from setting up effective risk reporting systems. The more incompetent the street sweeper is in reporting holes in the roads, the better the position of the Council. This is an incongruous result. Whether Roman is the last word on this issue is open to question.
25 Another statutory limitation on suing public authorities, introduced by the Civil Liability Act, is s 43. Section 43(1) applies to proceedings for civil liability to the extent that such 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. Section 43(2) provides:
“… , 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.”
26 Section 43(2) thus introduces a concept of administrative law, namely the Wednesbury test, where it is alleged that a public authority has breached a statutory duty in exercising, or failing to exercise, one of its functions. It constitutes a serious barrier for plaintiffs who wish to prove liability on the part of an authority. Section 43(2) goes much further than the recommendations of the negligence review panel, which proposed the application of the Wednesbury test only in regard to decisions based substantially on financial, political or social factors. Section 43(2), however, applies generally to all actions falling within s 43(1).
27 It is surprising that, while so much energy has been expended in opposition to so many of the various tort reforms, so little attention has been paid to the alteration to the law effected by s 43. It significantly limits the potential liability of the Crown in an area where over many years there was a struggle to require the Crown and governmental authority to be treated before the law in the same way as an ordinary citizen. Nevertheless, while voices have been raised in criticism of so many other reforms, there has been virtual silence in regard to the barrier to liability created by s 43.
28 I suggest, however, that the section does not apply to highway authorities in slip and fall cases. This needs some explanation. The essential question in such cases is whether, in exercising or failing to exercise its powers, the authority was in breach of a duty of care owed to a class of persons that included the plaintiff. [7] This question focuses on the statutory powers of the relevant public body.
29 The High Court “has favoured the imposition of a duty of care requiring the exercise of statutory powers affecting the safety of users of public roads”[8]. The point is that the powers vested by statute in the highway authority generally give it “such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care” [9]. It is to be emphasized that, while the basic claim is that the public authority was negligent because it failed to exercise statutory powers, the action, itself, is a common law action for breach of duty of care [10].
30 As the action against a highway authority is not based on a breach of a statutory duty, but on the breach of a common law duty of care, s 43 will not apply. That is so even though the breach amounts to a failure to exercise statutory powers or a wrongful exercise of such powers.
31 I turn now to the resources defence. Although this has always been part of the common law, it is now the subject of statutory formulation as contained in s 42 of the Civil Liability Act. This section provides that the general allocation by the authority of the financial and other resources that are reasonably available to it for the purposes of exercising its functions is not open to challenge. That is, the general allocation of financial and other resources by an authority is not justiciable. The section also provides that the functions the authority is required to exercise are to be determined by reference to the broad range of its activities and not merely by reference to the issues to which the proceedings relate.
32 Notionally, resources affect private entities as well as public bodies. Prof Mark Aronson has told me that John Fleming drew his attention to the fact that, sometimes, private defendants make decisions about the allocation of scarce resources, or decisions about the allocation of risks as between different groups, just as public bodies do. General Motors, for example, have at times decided to build heavier cars to protect their occupants at the expense of pedestrians, and at other times have decided to design lighter cars to save petrol at the cost of extra risk for their occupants. The Civil Liability Act, however, gives only public authorities the benefit of the resources defence.
33 The resources defence has, so far, not proved to be very successful. It has seldom been upheld. There are two principal reasons for this lack of success.
34 The first is that the High Court has held that where a defence involving availability of resources and conflicting priorities is raised, there is an evidentiary onus on the defendant to prove why these matters reasonably justify its conduct in not taking particular measures for which the plaintiff contends [11].
35 The second is that defendants who have raised this defence have, so far, generally speaking, not called witnesses who are in a position to support the reliance by the authority on an absence of resources. The authorities have tended to rely simply on the production of their financial accounts or the explanatory evidence of a relatively low level official. In RTA v Dederer, for example, the NSW Court of Appeal was substantially influenced by the fact that the witness called by the authority was not a person who had the power to authorise the expenditure of funds to carry out the remedial measures for which the plaintiff contended.
36 I would add that it is open to question whether the statutory denial of justiciability of the “general allocation” of resources (as provided by s 42(b)) will be effective in all cases to preclude a challenge to a resources defence. The section denies the justiciability of the general allocation of resources by the authority. In most cases involving the condition of a highway the authority concerned allocates a substantial sum of money for maintenance and repair of highways. Usually, there is no allocation for a specific highway. What happens is that a sub-committee of the highway authority will decide how the general allocation of resources for highways is to be spent. This may involve deciding how to allocate resources in a specific area, involving a number of highways, or to a specific highway. Whether such a decision is to be regarded as a general allocation of resources within the section is open to argument.
37 At common law, evidence respecting funding constraints and competing priorities is admissible [12]. In Ghantous, the majority said [13] that it was no answer to a claim in tort that the wrongful acts or omissions of a public authority were the product of a policy decision taken by the executive. Their Honours said that local authorities were in no preferred position.
38 Of course, the formulation of a duty of care in a given case includes the consideration of competing or conflicting responsibilities of the authority. Nevertheless, in Graham Barclay Oysters Pty Limited v Ryan, [14] Gleeson CJ observed [15]:
“When Courts are invited to pass judgment on the reasonableness of government action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process.”
In RTA v Palmer , [16] Spigelman CJ said [17]:
“This Court should be slow to extend the reasoning in Brodie by imposing liability for negligence with respect to the allocation of public funds.”
In Dederer, however, the Court of Appeal was of the opinion [18], notwithstanding these authorities, that if there are to be limits respecting the justiciability of funding priorities, those limits must be found by reference to criteria of reasonableness. The political nature of setting priorities in the allocation of public funds between competing claims on scarce resources is simply a factor that bears on unreasonableness, albeit that – depending on the circumstances – it may be a compelling factor.
39 All this means, I think, that in most cases the resources defence will remain justiciable by the courts, and it will not always be easy for a public authority to discharge the onus on it.
40 I next come to obviousness of risk. When removing the highway rule the majority in Ghantous emphasised a major limitation on the liability of road authorities, namely, the concept that road users must take reasonable care for their own safety. Their Honours observed [19] that the duty of road authorities does not extend to ensuring the safety of road users in all circumstances. They expressed the rationale as follows [20]:
“In general, [pedestrians] are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces … [P]ersons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course some allowance must be made for inadvertence. ”
41 This led some judges, particularly at first instance, to hold that in all circumstances where a risk was obvious, no duty of care was owed. This was put to rest by Thompson v Woolworths (Queensland) Pty Limited [21], Vairy v Wyong Shire Council[22] and Mulligan v Coffs Harbour City Council[23]. I think today it is generally accepted that the expression “obviousness of risk” does not denote a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances, it may be of such significance and importance as to be effectively conclusive [24].
42 Plainly, the distinction between duty of care and breach is of importance. If obviousness of the risk excludes a duty of care, there can be no apportionment of damage in a case where there is contributory negligence. If obviousness of the risk goes to breach, apportionment will be a live issue.
43 In cases involving a road authority’s duty of care, there is presently a difference in the New South Wales Court of Appeal as to whether the obviousness of the risk is relevant to the existence of the duty or whether it goes only to breach of duty. Temora Shire Council v Stein[25] and Sutherland Shire Council v Henshaw[26] are examples of cases that hold that the obviousness of the risk goes to breach. Burwood Council v Byrnes [27] and Richmond Valley Council v Standing[28] are examples of cases that hold that the obviousness of the risk is relevant to the existence of a duty of care. The Victorian Court of Appeal is also of this view [29].
44 The reasoning in the cases which hold that the obviousness of the risk is relevant to duty is based on the statement of Gaudron, McHugh and Gummow JJ in Ghantous[30] that:
“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface.”
45 I would suggest that there is no absolute category of cases in which obviousness of the risk determines the existence or non-existence of a duty of care. What has been said in cases such as Ghantous can only be regarded as general guidelines. The majority expressly stated this in Ghantous [31] when observing that persons ordinarily will be expected to exercise sufficient care by looking where they are going and avoiding obvious hazards. Their Honours noted that “[e]ach case will, of course, turn on its own facts”. [32] This means that no universal rule can be applied in regard to this issue. Each case has to be judged by reference to its own circumstances.
46 In Henshaw, Bryson JA pointed out [33]:
“A rule of law which meant, or had the effect that if a hazard in a road is so obvious that a pedestrian can observe it, the highway authority is not obliged to do something about it on the calculation that pedestrians will take reasonable care for their own safety has an air of parody; that the hazard was so bad that nothing needed to be done about it.”
This reasoning is irrefutable. It supports the proposition that no absolute rule
can be laid down.
47 I suggest that the answer to the difficulties posed by this issue is to be found in the notion of reasonableness, which permeates all aspects of the law of negligence. It is reasonable for a road authority to conduct itself in the belief that pedestrians (using sidewalks, footpaths, pavements and the like) will keep a proper look-out for the type of defects or unevenness on the surface of the walkway that are to be expected in the particular area or environment. This is consistent with the notion, referred to in Ghantous [34], that “a highway is not to be criticised by the standards of a bowling green." The notion of reasonableness explains the emphasis courts have placed on the fact that uneven surfaces should be expected in public footpaths because of tree roots, the effect of weather, deterioration and the like.
48 The fundamental concept of reasonableness also explains the approach of the courts, as expressed by Bryson JA in Henshaw, as follows [35]:
“As a generalisation cases based on tripping hazards where there are height discrepancies in the order of 25mm or 1 inch between otherwise regular paving slabs generally do not succeed; discrepancies treated as tripping hazards are usually greater and often are highly irregular or have some other unusual features.”
49 The “unusual” features may constitute a trap. Whether a hazard is obvious (or a trap) often depends upon the nature of the environment in which it is located. Where a defect in a highway does give rise to a risk, the question is whether that risk is not only obvious, but one to be expected in the particular area by a pedestrian in the ordinary course of human experience. If the defect is, say, a bump on a sidewalk in Bondi Junction, the highway authority will not be expected to take steps to remedy it. This is consistent with the authority not being required to give every highway a perfectly level surface. It is also consistent with the notion of reasonableness.
50 But, it would not be reasonable for a road authority to do nothing and allow a gross hazard in the roadway to remain as a danger to pedestrians, simply on the ground that it was obvious. Obviousness of risk of this kind will not prevent the recognition of a duty of care owed by a road authority to a pedestrian. It is not the law that, where the hazard is so bad, nothing need be done about it. This would be unreasonable.
51 The question of reasonableness has to be considered in the context of the place where the fall occurred. For example, what is to be expected on a verge next to a highway lined with large old trees is not what would expect in a busy concreted parking area in commercial premises where trucks offload frequently and workers walk about constantly. On the verge one would expect there to be uneven patches caused by tree roots, the effect of weather, deterioration and the like. These generally do not exist in commercial premises. One would not expect commercial premises to have concealed holes in the concreted parking area [36].
52 On the other hand, it may be reasonable to expect uneven surfaces on private land as well as public land. This was held to be the case when a plaintiff fell on a private footpath while visiting a municipal swimming pool. The footpath was in grounds owned by the Council. The Court of Appeal observed [37] that the plaintiff had not fallen in premises where the surface of the ground might be expected to be even. The plaintiff had been walking in the open air, on a path traversed by many members of the public over many years. In essence, it was little different from a public footpath. There was no reason for the plaintiff to pay less attention to the level of the surface of the footpath on which she fell than any public footpath. The fact that she fell on private ground made no difference. It did not affect the reasonableness of her conduct.
53 There is another qualification to the ordinary rule that a road authority may expect pedestrians to take reasonable care for themselves. Where the facts show that, in a particular area or in a particular respect, pedestrians are not exercising reasonable care for their own safety, that rule can no longer be applicable. Thus, for example, in Edson v Roads and Traffic Authority[38] it was established that about 25,000 people each year crossed the four lanes of the F5 freeway near Campbelltown in an area that was entirely uncontrolled by traffic signs or other means. This meant, the Court of Appeal held, that even though the risk to the pedestrians was obvious, the road authority was not entitled to assume that pedestrians in the area would exercise reasonable care for their own safety. The authority could not rely on pedestrians to look after themselves [39]. This is but another example of the way in which reasonableness informs the law of negligence.
54 I turn now to non-delegable duties. The law in this respect has been made very clear by the recent High Court decision in Montgomery v Leichhardt City Council. The common law duty of a highway authority is to take reasonable care that the exercise of or failure to exercise its statutory powers does not create a foreseeable risk of harm to road users [40]. The duty is not a duty to ensure anything [41]. In particular, it is not a duty to ensure that no worker behaves carelessly. In some circumstances, an authority may discharge its duty of care by employing independent contractors. Each case depends on its own facts as well as the statute applicable. The High Court held that, in the particular circumstances of the case, the Leichhardt Municipal Council did not owe a non-delegable duty of care to the plaintiff and was not liable for the negligence of the independent contractor it had engaged.
55 In this brief summary, I have attempted to show how the modest action of slip and fall has changed in character since the abolition of the highway rule. Many of the difficulties that slip and fall plaintiffs now face are mirrored by obstacles in the way of plaintiffs generally. But, I doubt that these difficulties are permanent. The pendulum of negligence is constantly in motion. Although there have been times when its movement has been excessively rapid, it has generally moved slowly. I suspect that it is moving towards the advantage of plaintiffs again, albeit pretty slowly.
END NOTES
* Edited version of a paper delivered on 30 March 2007 to the New South Wales State Conference of the Australian Lawyers Alliance.
** Judge of Appeal, Court of Appeal, Supreme Court of New South Wales.
1. (2005) 64 NSWLR 131at [17].
2. [2007] NSWCA 71.
3. (2001) 206 CLR 512 (hereafter Ghantous).
4. See “Negligence: Is Recovery for Personal Injury Too Generous?”, Address by the Hon J J Spigelman, AC, to the 14th Commonwealth Law Conference, London, 14 September 2005.
5. [2007] NSWCA 27 (hereafter Roman).
6. Id at [59].
7. See Ghantous, above n 3 at 540 per Gaudron, McHugh and Gummow JJ.
8. Id at 574 per Gaudron, McHugh and Gummow JJ.
9. Id at 559 per Gaudron, McHugh and Gummow JJ.
10. See Leichhardt Municipal Council v Montgomery [2007] HCA 6 (hereafter Montgomery).
11. See Ghantous, above n 3 at 585, [180] per Gaudron, McHugh and Gummow JJ; New South Wales v Bujdoso (2005) 80 ALJR 236 at 245-246, [49] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ. See also Waverley Council v Ferreira [2005] Aust Torts Reports 81-818 at 68,083, [78] and Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [295]-[306] (hereafter Dederer).
12. See Ghantous, above n 3 at 559-560, [104] per Gaudron, McHugh and Gummow JJ.
13. Id at 560 [104].
14. (2002) 211 CLR 540.
15. Id at 553-554, [6].
16. (2003) Aust Torts Reports 81-693.
17. Id at 63,754, [182].
18. Dederer, above n 11 at [278].
19. Ghantous, above n 3 at 577-578, [151].
20. Id at 581, [163].
21. (2005) 221 CLR 234.
22. (2005) 223 CLR 422.
23. (2005) 223 CLR 486.
24. See Consolidated Broken Hill Limited v Edwards [2005] Aust Torts Reports 81-815 at [53].
25. (2004) 134 LGERA 407.
26. [2004] NSWCA 386 (hereafter Henshaw).
27. [2002] NSWCA 343.
28. [2002] Aust Torts Reports 81-679.
29. Whittlesea City Council v Merie [2005] VSCA 199.
30. Ghantous, above n 3 at 581, [163].
31. Above n 3 at 581, [163].
32. Ibid.
33. Above n 26 at [67].
34. Above n 3 at 526, [7] per Gleeson CJ, referring to Littler v Liverpool Corporation [1968] 2 All ER 343 at 345 per Cumming-Bruce J.
35. Henshaw, above n 26 at [70].
36. The Premier Group Pty Ltd v Lippis [2007] NSWCA 36.
37. Bathurst City Council v Cheesman [2004] NSWCA 308.
38. (2006) 65 NSWLR 453.
39. See also Dederer, above n 11.
40. Montgomery, above n 10 at [26] per Gleeson CJ. See also Ghantous, above n 3 at 577, [150] per Gaudron, McHugh and Gummow JJ.
41. See Montgomery, above n 10 at [26] per Gleeson CJ.
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