IMPORTANT DISCLAIMER: This page does NOT contain all of the decisions of the Supreme Court of NSW or the NSW Court of Appeal, relating to the Civil Liability Act 2002. Subject to operation of the law, the Supreme Court disclaims all warranties or representations regarding the relevance, accuracy, completeness or currency of the summaries below. These summaries should not be taken to be legal advice. The Supreme Court is not liable for any loss or damage incurred through the use of these summaries. Users should NOT rely on these summaries and should conduct their own research and/or seek professional advice. The Supreme Court is not responsible for any material on linked websites. Users should also consider any disclaimers on linked websites. Full text judgments are available from NSW Caselaw or AustLII for High Court decisions.

Information

This resource aims to provide a summary of some of the decisions of the Supreme Court of NSW and the NSW Court of Appeal, relating to the Civil Liability Act 2002. Decisions are extracted under the relevant sections (addressed within them).


What's New?

Recent Cases

Warren Shire Council v Kuehne & Anor [2012] NSWCA 81, Section 43A, 16 April 2012

Wallace v Kam [2012] NSWCA 82, Section 5D, 13 April 2012

Novakovic v Stekovic[2012] NSWCA 54, Section 5B, 26 March 2012

Gaskin v Ollerenshaw [2012] NSWCA 33, Section 5D, 7 March 2012

Vieira v O'Shea [2012] NSWCA 21, Sections 5A & 5D, 5 March 2012

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, Section 13, 31 January 2012

Laoulach v Ibrahim [2011] NSWCA 402, Sections ss 5B, 5F, 5H, 5K, 5L, 16 December 2011

Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, Section 5D, 22 September 2011

Bader v Jelic [2011] NSWCA 255, Section 5B, 31 August 2011

Thornton v Sweeney [2011] NSWCA 244, Section 5B, 23 August 2011

Harmer v Hare [2011] NSWCA 229, Sections 5B & 5R, 11 August 2011

State of New South Wales v Doherty [2011] NSWCA 225, Section 5D, 5 August 2011

Burton v Brooks [2011] NSWCA 175, Section 13, 21 June 2011

Roche Mining Pty Limited v Graeme Wayne Jeffs [2011] NSWCA 184, Sections 5B & 5E, 10 June 2011

Day v Rogers [2011] NSWCA 124, Section 5D, 23 May 2011

Reed v Warburton [2011] NSWCA 98, Section 5B, 20 April 2011

Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63, Section 5B, 24 March 2011


Civil Liability Act 2002

Part 1 Preliminary

1 Name of Act
2 Commencement
3 Definitions
3A Provisions relating to operation of Act
3B Civil liability excluded from Act
3C Act operates to exclude or limit vicarious liability
4 Miscellaneous provisions

Division 1 Preliminary
5 Definitions
5A Application of Part

Division 2 Duty of care
5B General principles
5C Other principles

Division 3 Causation
5D General principles
5E Onus of proof

Division 4 Assumption of risk
5F Meaning of “obvious risk”
5G Injured persons presumed to be aware of obvious risks
5H No proactive duty to warn of obvious risk
5I No liability for materialisation of inherent risk

Division 5 Recreational activities
5J Application of Division
5K Definitions
5L No liability for harm suffered from obvious risks of dangerous recreational activities
5M No duty of care for recreational activity where risk warning
5N Waiver of contractual duty of care for recreational activities

Division 6 Professional negligence
5O Standard of care for professionals

Division 7 Non-delegable duties and vicarious liability
5Q Liability based on non-delegable duty

Division 8 Contributory negligence
5R Standard of contributory negligence
5S Contributory negligence can defeat claim
5T Contributory negligence—claims under the Compensation to Relatives Act 1897

Division 1 Preliminary
9, 10 (Repealed)
11 Definitions
11A Application of Part

Division 2 Fixing damages for economic loss
12 Damages for past or future economic loss—maximum for loss of earnings etc
13 Future economic loss—claimant’s prospects and adjustments
14 Damages for future economic loss—discount rate
15 Damages for gratuitous attendant care services: general
15A Damages for gratuitous attendant care services: dust-related conditions
15B Damages for loss of capacity to provide domestic services
15C Damages for loss of superannuation entitlements

Division 3 Fixing damages for non-economic loss (general damages)
16 Determination of damages for non-economic loss
17 Indexation of maximum amount relating to non-economic loss
17A Tariffs for damages for non-economic loss

Division 4 Interest on damages
18 Interest on damages

Division 5 Third party contributions
19 Third party contributions
20 (Repealed)

Division 6 Exemplary and similar damages
21 Limitation on exemplary, punitive and aggravated damages

Division 7 Structured settlements
22 What is a structured settlement
23 Court required to inform parties of proposed award
24 Court may make consent order for structured settlement
25 Obligation of Australian legal practitioners to provide advice
26 Offer of structured settlement—legal costs

Division 1 Preliminary
26A Definitions
26B Application of Part

Division 1A Duties of claimant for offender damages
26BA Protected defendant must be given notice of incident giving rise to claim
26BB Claimant must comply with requests for information
26BC Vulnerable offenders
26BD Dismissal of court proceedings for failure to give notice or co-operate on claim

Division 2 Damages subject to 15% permanent impairment threshold
26C No damages unless permanent impairment of at least 15%
26D Assessment of permanent impairment

Division 3 Damages for economic loss
26E Damages for past or future loss of earnings
26F Retirement age
26G Future economic loss—assumption about release on parole

Division 4 Damages for non-economic loss
26H Restriction on damages for non-economic loss
26I Non-economic loss damages limited to workers compensation amount

Division 5 Victims support payments owed by offender
26J Authority for deduction from damages

Division 6 Offender damages trust funds
26K Interpretation
26L Offender damages to be held in trust as victim trust fund
26M Victim trust fund available to satisfy eligible victim claims
26N Notice to persons entitled to make victim claim
26O Provision of information to persons entitled to claim
26P Commencement of victim claims proceedings despite expiry of limitation period
26Q Orders for payment of damages out of money held in trust for victims of offender
26R Payment to offender of trust fund surplus
26S Functions of the NSW Trustee and Guardian
26T Exception for legal costs
26U Maximum legal costs of eligible claims
26V Protection from liability
26W Division overrides Part 7 Division 2

27 Definitions
28 Application of Part
29 Personal injury arising from mental or nervous shock
30 Limitation on recovery for pure mental harm arising from shock
31 Pure mental harm—liability only for recognised psychiatric illness
32 Mental harm—duty of care
33 Liability for economic loss for consequential mental harm

34 Application of Part
34A Certain concurrent wrongdoers not to have benefit of apportionment
35 Proportionate liability for apportionable claims
35A Duty of defendant to inform plaintiff about concurrent wrongdoers
36 Contribution not recoverable from defendant
37 Subsequent actions
38 Joining non-party concurrent wrongdoer in the action
39 Application of Part

40 Application of Part
41 Definitions
42 Principles concerning resources, responsibilities etc of public or other authorities
43 Proceedings against public or other authorities based on breach of statutory duty
43A Proceedings against public or other authorities for the exercise of special statutory powers
44 When public or other authority not liable for failure to exercise regulatory functions
45 Special non-feasance protection for roads authorities
46 Exercise of function or decision to exercise does not create duty

47 Part applies to civil liability for death, injury or property damage
48 Definition of “intoxication”
49 Effect of intoxication on duty and standard of care
50 No recovery where person intoxicated

Division 1 Limitations on damages
51 Part applies to civil liability for death, injury or property damage
52 No civil liability for acts in self-defence
53 Damages limitations apply even if self-defence not reasonable response
54 Criminals not to be awarded damages
54A Damages limitations if loss results from serious offence committed by mentally ill person

Division 2 Supervision of damages arising out of criminal conduct by persons suffering from mental illness
54B Definitions
54C Application of Division
54D Damages supervision orders
54E Additional matters relating to damages supervision orders
54F Estates under supervision of Protective Commissioner
54G Hindering or obstructing NSW Trustee and Guardian
54H Evidence of NSW Trustee and Guardian’s right to act

55 Application of Part
56 Who is a good samaritan
57 Protection of good samaritans
58 Exclusion from protection

58A Interpretation
58B Application of Part
58C Protection of food donors

59 Application of Part
60 Definitions
61 Protection of volunteers
62 Liability not excluded for criminal acts
63 Liability of intoxicated volunteer not excluded
64 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions
65 Liability not excluded if insurance required
66 Liability not excluded for motor accidents

67 Application of Part
68 Definition
69 Effect of apology on liabilitY

70 Application of Part
71 Limitation of the award of damages for the birth of a child

“Claimant” indicates a reference to a person of who makes a claim and a person who is entitled to make a claim for personal injury damages. [25]

… The definition is expressed to be inclusive and does not purport to identify everything which falls within its terms. On the other hand, the phrase “any form of” is of such potential breadth of application as to imply that a payment which does not in any sense constitute monetary compensation would not be included. [19]

The last argument requires attention to the purpose of both aggravated and exemplary damages. For the argument to succeed, it must be demonstrated that one or both of them do not constitute a form of monetary compensation, a matter discussed below. Even if that were established, it would then be necessary to demonstrate that the term “damages” does not in any event extend to payments which are invariably described by the law as forms of damages, whether aggravated or exemplary. [20]

The extension of the operation of Part 2A to cover intentional torts required an amendment to the provision, now found in s 3B, excluding the operation of the Act from such torts…[14]

The amendment to s 3B gives rise to a question whether the definitions contained in Part 1 of the Act (including definitions of “damages” and “non-economic loss”) identified below, apply in respect of Part 2A. The language of s 3B(1)(a) cannot be read literally or it would exclude its own operation. Similarly, it cannot be read sensibly so as to exclude the operation of the transitional provisions, which determine its effect. Nor is it sensible to read it as excluding the definitions contained in Part 1, in so far as they apply to Part 2A. Were it otherwise, the meaning of “damages”, which is defined in Part 1 (which includes s 3B) might give that word a different meaning in s 3B than it enjoys in Part 2A. Similarly, such an approach would exclude the operation of s 4 (also found in Part 1) which provides that the Act binds the Crown and that the savings and transitional provisions in Sch 1 have effect. Giving s 3B a sensible construction, in accordance with its apparent purpose, exclusion of the operation of the whole Act should not be read as including exclusion of the application of Part 1, as that would potentially give the provisions of Part 2A a different operation from that which they would otherwise have. [15]

There is no purpose or policy underlying the Act which would suggest that a different approach should be taken to the civil liability of the employee, as compared with that of the employer, when each is in respect of an intentional tort. Section 3B(1) does not differentiate in its operation between direct and vicarious liability and applies in this case to exclude the operation of the Act. [13][14]

1) pursuant to s 3B of the Act then in force the provisions of the Act did not apply to the civil liability of the State in this case; and
2) Part 2A of the Act only applied to a person who was an inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 at the time of the injury (ss 26A and 26B).

In relation to the construction of the phrase "in respect of" in the Civil Liability Act, s 3B(1)(a) (prior to the CCLAA 2006), should be understood to refer to the liability of the person who did the intentional act with the relevant intent, and not to a person whose liability derives from his or her own negligent conduct, where the risk against which precautions must be taken is the intentional violent act of another (at [59] – [66]).

The effect of the CCLAA was to clarify that s 3B(1)(a) had that operation.[54][69]

The primary judge was correct. The effect of clauses 20, 21 and specifically 20(a) of Schedule 1 of the Civil Liability Act (as amended by the 2005 Act), is not to apply Part 2A to all awards of personal injury damages in proceedings commenced before 19 November 2004 (at [8] – [9]).

The definition of “offender damages” in s 26K(1) limits the application of the Part to cases of injuries received while a person falls within the categories introduced by the 1999 Act.[8] [9]

Clause 20 is directed to the date of commencement of proceedings, not to the nature of the proceedings or the parties to them (at [79]).

The phrase “personal injury damages” is defined in Part 2 for the purposes of Part 2A. Part 2 does not apply to awards in proceedings commenced before 20 March 2002 (Sch 1, Part 2, cl 2). As per Part 2A, the respondent’s damages were therefore not “personal injury damages” nor “offender damages” as defined in s 26K(1).[82]

Clauses 26(3) and 26(4) mean that a final determination may not be set aside solely on the basis of a change of the law effected by cl 26.[16][18]

The legislature did not intend that the test for “finally determined” in Clause 26(4) be different to the established test laid down in case law, therefore cl 26 does not apply in these proceedings (at [34] – [35]).

Section 3B(1)(a) provides that common law principles shall apply to "civil liability in respect of an intentional act that is done with intent to cause injury or death".

The reference to "intent" in s 3B(1)(a) applies to situations where an intentional act is done with intent to cause some injury, albeit non-specific. The intent need not correspond to the injury that was actually sustained. Therefore the intended injury need not be the injury that eventuated.

There was a nexus between the intentional act that caused the plaintiff damage and the negligence of the government, thus bringing its liability within s 3B(1)(a), which excluded the operation of the Act, and therefore the attachment of the plaintiff's damages under it.

What made the government liable to the plaintiff was its negligence and the damage suffered by the plaintiff as a consequence. That damage was not to be either defined or measured in some kind of conceptual vacuum. It could only be in fact defined and measured by reference to the circumstances and the incidents of the relevant intentional act done with the prescribed intent. This sufficed to provide the nexus that the plaintiff had to establish in order to succeed.

Therefore where a defendant is liable in negligence for another's intentional act, that is, where liability arises in respect of another's intentional act, s 3B(1)(a) will still apply.

Duty of care – the concept of risk as "not far-fetched or fanciful" changed to "not insignificant" following the introduction of the Act.

“It is clear from the report of the committee which recommended the change to the foregoing common law principles that in changing the terminology from not far-fetched or fanciful they were concerned to ensure that attention was given to other aspects of the risk. They expressly adopted a passage from the judgment of McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [99] where his Honour noted that Mason J in Shirt had emphasised aspects of the nature of the calculation which needed to be undertaken, being matters which are now set out in subs (2) of s 5B.” [21][22]

“There must be an issue as to the interrelationship between ss 5B and 3B. Section 3B provides, in effect, that the provisions of the Act do not apply in respect of an intentional act that is done with intent to cause injury: see State of New South Wales v Ibbett [2005] NSWCA 445 at [5]-[11] (Spigelman CJ), [121]-[129] (Ipp JA) and [206]-[218]”.[11]

“Her Honour rejected an argument that s 3B applied in the present case because she said there was no intention on the part of the defendants to injure the plaintiff. An intentional act may of course be intentional in the sense that it is intended to injure someone without necessarily being directed towards the plaintiff: an issue may arise as to the application of s 3B in that situation.”[12]

The relevant intentional act need not be directed towards the plaintiff.

The word injury in s 3B(1)(a) should be given its natural and ordinary meaning. [11]

In this case, the assault amounted to an injury for the purposes of s 3B(1)(a) because assault entails an intention to cause injury. Accordingly, the operation of the Act was excluded by s 3B(1). [17]

In any event, the facts did not answer the description in s 21 of an “action ... where the act or omission that caused the injury ... was negligence.” No negligence was involved, the causes of action being formulated in assault and trespass to land. [2] [17] to [19]

Regarding the application of s3B(1)(a), for “a defendant to be able to rely on the application of the Act to a claim based on a cause of action that does not allege a breach of a duty to exercise reasonable care and skill”, the “defendant would have to plead …[or] … contend … that the Act applies on the ground that the damages result from ‘negligence’. The defendant should crystallise the issues in such a way that the trial judge is called upon to make a finding in this respect.” It is not ordinarily appropriate to raise this type of argument at appeal. [119]

Irrespective of whether the ordinary meaning of the word is attributed to injury, or whether it is given the meaning defined in s 11, the word is wide enough to encompass the anxiety and stress suffered by the respondent. [124] [125]

The meaning of the word “injury” in the context of s3B is to be found from the ordinary meaning of the word. [338]

The word “injury” is not limited to bodily injury. [346]

The plaintiff’s injury included: deprivation of liberty, forced restraint of mobility, humiliation, damage to reputation, emotional upset, costs defending the charge.

3B(1)(a) is not limited only to conduct that is criminal. The words of the section should be given their ordinary English meaning. [41]

“…So for the purposes of s 3B(1)(a) of the Act, the act is that of the employer, as is the intention . This approach gains support from the obverse proposition contained in s 3C … the statutory scheme does not seek to differentiate in its operation between direct and tortious liability; it should not be inferred that it seeks to do so by a provision such as 3B(1), which excludes its operation”.[13][14]

Although the savings and transitional provision under the Civil Liability Act, Sch 1, para 1(1), was part of that Act, it was not an independent regulation-making power, and being inconsistent with the Civil Liability Act, s 4(2), it was subordinate to the Civil Liability Act, s 4(2).

If a regulation is inconsistent with the empowering statute it will not necessarily be ultra vires, provided the statute contemplates such inconsistency by expressly providing for it.

In the present case, the Civil Liability Amendment Regulation, cl 3 was not ultra vires because it came within the Civil Liability Act, s 3B(3), which expressly allowed for the regulations to exclude a specified class of civil liability from the operation of that Act.

The plaintiff’s actions in getting on the lift and disregarding a specific direction were foolhardy. The trial judge erred in determining that the plaintiffs were not guilty of contributory negligence – 15% to be attributed to plaintiffs.[viii]

The consequences of the repeal of the Statutory Duties (Contributory Negligence) Act 1945 NSW and the Law Reform (Miscellaneous Provisions) Act 1965 NSW, s 7(1), and the insertion of the Civil Liability Act 2002 NSW, s 5A, are clear. Irrespective of how a claim is formulated, if in substance, it is a claim for damages for harm resulting from negligence, a defence of contributory negligence may be raised to that claim even if it is based on a breach of statutory duty. The Civil Liability Act, Pt 1A, Division 8 (which sets out principles applicable to contributory negligence) will then apply to that defence.[xi]

Contributory negligence is only available as a defence to a breach of statutory duty claim where the cause of action accrues after the repeal of the 1945 Act and s 7(1) of the 1965 Act.[xii.]

The question whether the respondents were guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the respondents owed the appellant.

The respondents, as occupier of the land onto which the appellant entered, owed her a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487-488) per Mason, Wilson, Deane and Dawson JJ; Jones v Bartlett; [2000] HCA 56; (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [47]) per Gummow J. There was no suggestion that the appellant had fallen short of the last requirement.

What was reasonable turns on the circumstances of her entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (at 488). The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act.

The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]).

The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the respondents to take those measures?: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [93]) per Hayne J. In other words, the knowledge of how the appellant actually came to sustain her injury has to be excluded when considering whether the respondents were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited: Neindorf v Junkovic (at [96] - [97]) per Hayne J.

A person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised: Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR 155 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing).

The first question which must be asked is whether the presence of the dog in the house posed a foreseeable and not insignificant risk in the circumstances: s 5B(1)(a) and (b). Only if that question is answered in the affirmative does the question arise as to what a reasonable person would do by way of response to the risk: s 5B(1)(c).

Section 5B of the Act has been described as "misleading", in that it is headed "Duty of Care" (see Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13]). Clearly the section deals with breach, rather than duty...

The provision embodies Mason J's formulation in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

While there are differences in wording, it has been said that section 5B(2) is a reiteration of Mason J's analysis (Waverley Council v Ferreira [2005] NSWCA 418; Aust Torts Reports 81-818 at [45], Ipp JA (with whom Spigelman CJ and Tobias JA agreed); and see subsequent cases such as Roads and Traffic Authority (NSW) v Refrigerated Roadways [2009] NSWCA 263; 53 MVR 502; at [178]-[179], per Campbell JA).

There are of course limits to this foreseeability, as Callinan J said in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [54] - [55]:


Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is remote or extremely unlikely to be realised, and one that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. Wyong has however been constantly applied throughout this country and in this Court since it was decided, and neither party sought to challenge it here. I am therefore bound to apply it.

Even on the application of it however, the appellant must fail at the threshold, that is on the issue of foreseeability. In my opinion, it was far-fetched and not foreseeable that the appellant, a competent, seemingly well woman would suffer within six months of taking up a part-time position, a disabling psychiatric injury, or indeed, any psychiatric injury by reason of the work that the position entailed.

[In terms of the scope of section 5B] Ipp JA (Spigelman CJ and Tobias JA agreeing) said in Waverley Council v Ferreiraat [47]:


The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue "whether it would be reasonable to require precautions to be taken against a particular risk" and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it.

As to s 5B(2)(a), that is, "the probability that the harm would occur if care were not taken", it is of significance that, according to Mr Bader's evidence, no accident had occurred in the five years prior to Mr Jelic's accident. As a finding has not been made that the rug upon which Mr Jelic stumbled remained in place after the accident, I do not however have regard to the subsequent lack of accidents of which Mr Bader gave evidence.

As pointed out in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, "the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances" (at 309). In my view the accident-free history of five years preceding Mr Jelic's accident is of some significance in assessing whether a reasonable person in the position of the appellants would (at the date of Mr Jelic's accident) have regarded it as necessary to have the blind pulled down over the window…

…In considering "the likely seriousness of the harm" for the purposes of s 5B(2)(b) it is necessary to have regard to the fact that the window in question was not made of safety glass with the consequence that if someone stumbled on the rug in the vicinity of it the person might fall into the window, break it and suffer serious harm. However there is no evidence that the appellants were aware that the window was not made of safety glass and Ms Norton conceded, I consider correctly, that it could not be concluded that a reasonable person in the position of the appellants would necessarily have known that the glass was not safety glass (Appeal Transcript p 26). In these circumstances I think it is necessary to proceed upon the basis that it would not have been obvious to a reasonable person that there was a real prospect that if a person fell on to the window it would shatter, resulting (as occurred here) in severe lacerations to the person. As a result, it should be concluded for the purposes of s 5B(2)(b) CL Act that a reasonable person would not necessarily have foreseen that if an accident occurred the injuries suffered would be likely to be of a high level of seriousness.

• the duty extends to taking the precautions that a reasonable person in the position of the voluntary supervisor would take to prevent harm to the learner driver arising out of his or her driving the vehicle ( Civil Liability Act , s 5B(1)(c));
• what precautions are reasonable depends on the circumstances of the case, including the matters identified in the Civil Liability Act, s 5B(2);
• although the question of reasonableness depends on the circumstances, it is a material factor that the Licensing Regulation, cl 12(5)(b), requires the supervisor to take reasonable precautions to prevent the learner driver contravening the road transport legislation; and
• in assessing the reasonableness of precautions it is a material factor that a voluntary supervisor need not possess any qualifications (other than an unrestricted licence) and that the driving of the vehicle is primarily in the hands of the learner driver (Imbree v McNeilly, at 532 [66]).

It was for the respondent to lead evidence of facts sufficient to prove, directly or by inference, on the balance of probabilities, that not only did Roche owe to him a duty of care but that that duty was breached and that the breach caused his injuries: Kuhl v Zurich Financial Services Australia Ltd (at [11]) per French CJ and Gummow J. He thus had to establish that a reasonable person in Roche's position would have foreseen that its conduct involved a risk of injury to him or to a class of persons including him, and to then establish what a reasonable person would have done in response to the risk: s 5B, CL Act, Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48). In evaluating the respondent's case, the primary judge had to be careful, as he reminded himself, not to assess the position with the benefit of hindsight: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [18]) per Gummow J (with whom Heydon J agreed). [70]

Section 5B appears to be directed to a case where a person who has, or should have, identified a risk of harm, must then take "precautions" against it, as opposed to simply exercising reasonable care in going about his or her activities. For example, in the present case, it makes sense to speak of the use of a heat shield or ensuring the availability of buckets of water as "precautions": the need to take care not to allow the flame too close to inflammable material is less helpfully described as taking a precaution. The latter simply involves taking reasonable care. The infelicity of the expression of s 5B need not be problematic, but it may be necessary to avoid an unconscious tendency to look for identifiable "precautions" instead of considering whether the responsible party has simply failed to exercise reasonable care: [21].

The Civil Liability Act 2002 (NSW) makes no assumption that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility. Although it might be said that as a general proposition physical activity is of social utility, what s 5B(2)(d) required to be taken into consideration was the social utility of "the activity that creates the risk of harm". In this case that activity was the medicine ball exercise which of itself had no relevant social utility: [129].

The social utility of the relevant activity is but one factor which s 5B(2) requires to be taken into account in determining whether a reasonable person would have taken the necessary precautions against the relevant risk of harm. As the chapeau to the subsection makes clear, each of the four subparagraphs is to be considered "amongst other relevant things". There was nothing in the Ipp Report which recommended s 5B or in the text of the legislation which suggested that the standard of reasonable care required the taking of fewer precautions against an acknowledged risk of harm simply because the activity which created that risk had some social utility: [130].

In determining whether a defendant has breached its duty of care to the plaintiff the court must make a factual judgment that involves an interplay between considerations which will each have varying weight according to the circumstances: [29]

When considering whether a response would have been reasonable, a judge may err in concluding that the risks associated with certain precautionary measures, here the construction of a pit fence or wall, are less than the risks associated to the status quo, when there is no evidence to support such a finding. This is especially so considering the onus of proof on the plaintiff: [50] to [51]

In terms of s 5B, the risk of injury or damage to people or property from branches or twigs falling from the tree was not insignificant however it was not shown to be such a risk that a reasonable person would have authorised removal of the tree, as there was a relatively small probability of significant injury to a person or substantial damage to property. [42]

To establish breach of the duty of care by the occupier, it was necessary to demonstrate that the “three preconditions” for failing to take precautions, specified in s 5B of the Civil Liability Act 2002, had been satisfied: RTA v Refrigerated Roadways Pty Ltd [40]

In cases where the Civil Liability Act applies, it is important that a trial judge refers to its provisions to ensure adherence to the Act is apparent to an appellate court however the absence of such reference is insufficient on its own to establish a decision is erroneous. It will suffice if it is apparent that the judge has addressed and determined the issues that the Civil Liability Act requires be addressed. [42]

Because the “preconditions” in s 5B closely mirror the steps to be taken to determine whether a breach of a duty of care has occurred under the general law: Wyong Shire Council v Shirt, a conclusion that those requirements have been satisfied will almost inevitably lead to the conclusion that a breach of the relevant duty of care has occurred. [44]

Section 5B(2)(d) requires consideration of the “social utility of the activity that creates the risk of harm”. The only possible social utility of not lighting the stairs would be the saving of the electricity required to power a light. Whilst economy in the use of electricity is to be encouraged, any saving of this nature is not of significance in the present context where there is a risk of serious injury to persons. [58]

As Campbell JA pointed out in RTA v Refrigerated Roadways s 5B of the Act is not a self-contained statement of the circumstances in which liability for negligence will arise but rather, subsection 1 sets out three preconditions that must co-exist before liability arises for failing to take precautions. [35]

Whether Risk “Not Insignificant”: s 5B(1)(b)

Under the general law of negligence it is unnecessary for a plaintiff to show the precise manner in which his injuries were sustained was reasonably foreseeable: see Chapman v Hearse). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk is “not insignificant”. [43]

The requirement in s 5B(1)(b) that the risk is “not insignificant” imposes a more demanding standard than stated by Mason J in Wyong Shire Council v Shirt at 48, but not by very much. [44]

The primary judge erred in considering that the contents of the ACCC publication and the Australian Standard were relevant to his assessment of the risk of injury occurring in the use of the bunk bed. Whether s 5B(1)(b) was satisfied should be determined by reference to the circumstances which reasonable people in the position of the appellants would have been aware. There was no evidence that the appellants were aware of the Australian Standard and it cannot be assumed that reasonable people in their position would have knowledge of the Standard or the ACCC publication referring to it: compare Jones v Bartlett. As a result it was not appropriate to take the ACCC publication or the Standard into account when considering whether the risk was “not insignificant”. [46]

The Taking of Precautions: s 5B(1)(c)

A duty of care “imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct”: RTA v Dederer at [18]. Accordingly, the fact that a tragic accident would not have occurred if the bunk bed had a ladder and guard-rail does not answer the question of whether there was a failure by the appellants to take reasonable care: Derrick v Cheung. [47]

The correct approach in considering what precautions a reasonable person would take in a case such as the present is that described by the English Court of Appeal in Perry v Harris. [59]
In considering the precautions that a reasonable person would have taken to guard against the relevant risk of harm, s 5B(2)(c) requires “the burden of taking precautions to avoid the risk of harm” to be considered. The fact that precautions could have been taken with only minimal expense is a factor in favour of the respondent’s case however it is not of great significance in a case such as this where the probability of harm occurring and the likelihood of any harm being serious were very low. [60]

The other factor mentioned in s 5B(2) is “the social utility of the activity that creates the risk of harm”: s 5B(2)(d). As pointed out by Ipp JA at [50] in Waverley Council v Ferreira, this paragraph “simply gives expression to the idea that some activities are more worth taking risks for than others”. [61]

The question whether s 5B applies may depend upon the characterisation of the act that caused the harm. If an act is characterised as the positive act, then s 5B may not apply and the correct approach may be to determine the question of breach in accordance with the common law. If the act is characterised as the failure to take reasonable care then s 5B would apply. [54]

In any case, the authorities have recognised that s 5B substantially restates the common law principles stated in Wyong v Shirt.

Test
Section 5B(2) of is, in substance, a reiteration of the well-known analysis of Mason J in Wyong Shire Council v Shirt.[82]

"Norms"
As McHugh J stated (at 329 [34]) in Dovuro Pty Ltd v Wilkins ... “If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community…” [88] - [89]

However, although adherence to common practice in an industry is an important consideration it is not necessarily determinative of whether a breach of duty has occurred: see Latham CJ in Mercer v Commissioner for Road transport and Tramways (NSW). [86] - [87]

Consequences
As was said by Cooper J in Suosaari v Steinhardt , the graver the foreseeable consequences of a failure to take care, the greater the necessity for “special circumspection”. Viewed prospectively, any failure of the steering system, whether by reason of axial slippage of the intermediate shaft or otherwise, was likely to result in very serious, if not catastrophic harm (CL Act, s 5B(2)(b)). [108]

Responses
...The expert evidence established that measures could have been taken at relatively little cost by the respondent to incorporate an additional safeguard against failure resulting from loosening of the pinch bolt and consequential wearing of the bolt...[108]

Prospective view
Even so, it was still necessary for the appellant to establish at trial that the respondent had failed to exercise reasonable care in the design of the Truck, which was manufactured in 1989. The risk against which the respondent was required to take reasonable precautions was that the bolt would become loosened...leading to wearing of the bolt and, ultimately, axial slipping of the intermediate shaft sufficient to detach it from the universal joint. Looking at the matter prospectively in 1989, the risk could not eventuate simply through driving the Truck, even under the most gruelling conditions over many years … [109]

In addition... any assessment of the design precautions required of a reasonable manufacturer in 1989 must take into account the fact that the design was the industry norm at that time. While this is not decisive, in the absence of evidence that the industry practice itself was deficient or that potential safety issues had been identified at the time but not acted upon, the respondent’s adherence to the industry norm is a strong indication that a reasonable person in the respondent’s position would not have adopted additional precautions to guard against the risk. Furthermore, on the primary Judge’s findings, the respondent had no reason in 1989 to believe that the risk would or might eventuate. Indeed there was no such indication until the crash occurred in 2002. [110]

Once the scope of the respondents’ duty was identified, the question whether it had been breached had to be determined in accordance with s 5B of the Civil Liability Act 2002 (NSW), a provision remarkably absent from counsel’s submissions at trial and in this Court as well as in the primary judgment… [66]

The question of whether or not the respondents discharged their duty of care, although determined after the accident, had to be assessed at the time of their allegedly tortious conduct, by looking forward to identify what a reasonable person in their position, confronted with a foreseeable risk of injury, would have done in response: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (at [16]) per Gleeson CJ; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [60] – [61]) per Gummow J, Hayne J (at [124]). [67]

As a roads authority, the Council was obliged… to exercise such reasonable care as to make the road (stairs) safe “for users exercising reasonable care for their own safety”: Brodie (at [163]); Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Callinan and Heydon JJ agreeing). [118]

Neither Stojan or the Council was negligent in failing to take precautions against a risk of harm unless there was a risk of which either knew or ought to have known, the risk was not insignificant, and the circumstances were such that a reasonable person in their position would have taken those precautions: s 5B(1)…[126]

Whether either Stojan or the Council ought to have taken these precautions turned on (amongst other relevant things) the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that created the risk of harm: s 5B(2). Such questions had to be answered prospectively, before the plaintiff fell: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (at [31]). [127]

Section 5B(2) sets out the test posed by Mason J in Wyong Shire Council v Shirt (at 47 – 48) concerning breach of duty: Waverley Council v Ferreira ; (2005) Aust Torts Reports ¶81–818 (at [27], [45]) per Ipp JA (Spigelman CJ and Tobias JA agreeing). Accordingly the Court must have regard to the “probability of the risk occurring, the magnitude of the consequences - which may vary from small to extremely grave - and the cost or inconvenience of eliminating the risk …”: Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 (at 521) per McHugh JA (as his Honour then was); applied in Phillis v Daly (at 67) per Samuels JA; see also (at 71) per Mahoney JA; (at 76 – 77) per McHugh JA. [128]

… The question whether Stojan and/or the Council were guilty of a breach of their duty of care turned on whether a reasonable person in their position would have foreseen that their conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff: Wyong Shire Council v Shirt (at 47). [131]

…the [audit] letter, in my view, clearly alerted the Council to the inadequacy of the existing lighting over the stairs for the purposes of visibility. It was not, in my view, a reasonable response on the Council’s part to the risk of inadequate illumination of the stairs, of which it ought to have been aware, merely to refer the letter to Stojan, then apparently to do nothing about it. It had a positive duty to exercise reasonable care so that the stairs were safe for users exercising reasonable care for their own safety. There was no suggestion that it had delegated those duties to Stojan: cf Leichhardt Municipal Council v Montgomery. [133]

… both [the Council and Stojan] ought, in any event, to have foreseen that the lack of illumination posed a risk to users of the stairs who were taking reasonable care for their own safety. That was not an insignificant risk: cf s 5B(1)(b), Civil Liability Act. The risk that a user of the stairs, whether ascending or descending, deprived of the opportunity generally available to pedestrians of seeing and avoiding immediate dangers (Brodie (at [163])) may suffer serious injury as a result of falling on the stairs was high. It was such that, in my view, a reasonable person in the Council and Stojan’s position should have ensured both that the stairs were properly illuminated and that anything which posed a risk to that illumination was removed: s 5B(1)(c), Civil Liability Act. This is particularly so where, as the following discussion demonstrates, the burden of taking precautions against the risk to which the plaintiff was exposed was not great: s 5B(2)(c), Civil Liability Act. [136]

… The Council apparently abandoned its pleaded defence under s 42 of the Civil Liability Act. While it sought to rely on the response to the safety audit letter and the statement that it was “limited by funds with respect to lighting requests”, that response clearly related to all of the recommendations in the safety audit letter concerning lighting which were far more extensive than merely lighting the stairs. In my view, bearing in mind the likely seriousness of the harm which could behalf a person who fell on the stairs if they were insufficiently lit, the Council did not discharge its evidentiary burden of establishing that that risk was outweighed by the burden of taking precautions to avoid the risk of harm. [137]

Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. As to whether such cases cover the entire field of negligence cases, see Drinkwater v Howarth [2006] NSWCA 222 at [11]-[13], [24]. Subsection 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 presupposes the existence of the law of negligence, and operates against its background.[173]

In Waverley Council v Ferreira ; [2005] Aust Torts Reports ¶81-818 (68,074) at [45], Ipp JA (with whom Spigelman CJ and Tobias JA agreed) said that the “matters set out in s 5B(2), in substance, are a reiteration of Mason J’s remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.”… [174]

While section 5B(2) articulates clearly the process of reasoning that would have been involved under the common law in application of the test in Shirt for identifying what steps the taking of reasonable care requires, it does not show any intention to alter the common law on that topic. That view of section 5B(2) has been applied previously in this Court: Council of the City of Liverpool v Turano [2008] NSWCA 270; (2008) 164 LGERA 16; 51 MVR 262 at [171] per Beazley JA (with whom Hodgson JA substantially agreed), [362] per McColl JA.[177]

It is true that, as Ipp JA pointed out in Waverley Council v Ferreira , Aust Torts Reports 81-818, at [45], the matters set out in s 5B(2) of the Civil Liability Act are, in substance, a reiteration of Mason J’s oft cited remarks in Wyong Shire Council v Shirt, at 47-48; see, too, Review of the Law of Negligence: Final Report (September 2002) (“Ipp Report”), pars 7.5–7.18. It is also true that s 5B operates against the backdrop of the law of negligence. Thus s 5B does not itself impose an obligation on a person to exercise reasonable care, but sets out in subsection (1) requirements that must be satisfied before a person can be found to be “negligent in failing to take precautions against a risk of harm”: D Villa, Annotated Civil Liability Act (2002) (NSW) (2004) at [1A.5B.050]; Penrith Rugby Club Ltd v Elliott [2009] NSWCA 247, at [22]. Section 5B(2) specifies the matters that the Court is to consider (among other relevant things) in determining whether a reasonable person would have taken precautions against a risk of harm. The calculus provided by s 5B(2) requires the matters specified in pars (a) and (b) (“the probability that harm would occur if care were not taken” and “the likely seriousness of the harm”) to be weighed against the matters specified in pars (c) and (d) (“the burden of taking precautions to avoid the harm” and the “social use of the risk-creating activity”): Ipp Report, at [7.9]. [443]

While s 5B of the Civil Liability Act incorporates concepts derived from the common law, the primary Judge was required by statute to satisfy himself that each of the matters specified in s 5B(1) was satisfied before he could find that the RTA had been negligent in failing to take precautions against the risk of objects being thrown or falling from the Glenlee Bridge onto vehicles travelling along the F5 Freeway. In order for the primary Judge to find that the criterion stated in s 5B(1)(c) was satisfied (“in the circumstances, a reasonable person in [the RTA’s] position would have taken these precautions”), his Honour had to weigh the competing considerations identified in s 5B(2).[444]

Bostik did not owe Mr Liddiard a duty of care I as:

“Brolton contracted with Bostik to provide certain services that included emptying the rubbish bins in the smoko shed… Brolton instructed its employee, Mr Liddiard, to empty the rubbish bins.” [116]

“Bostik gave no instructions to Mr Liddiard.” [117]

“Mr Pearce never actually exercised any measure of control over Brolton “non-production” employees.”[120]

“To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff.” [149]

Bostik owed Mr Liddiard a duty of care as: “Mr Liddiard, although employed by Brolton, was undertaking work as a general hand for Bostik…Bostik was the principal occupier of the premises and had the overall control of the activities that were engaged in on the premises… Mr Liddiard… was subject to direction, although it is reasonable to infer that he would have expected that direction to have come from Brolton… that is not determinative of the question whether Bostik had a duty of care. He did not provide his own equipment. He had no control over any aspect of the workplace.” [89][90]

Duty of care – the concept of risk as "not far-fetched or fanciful" changed to "not insignificant" following the introduction of the Act.

“It is clear from the report of the committee which recommended the change to the foregoing common law principles that in changing the terminology from not far-fetched or fanciful they were concerned to ensure that attention was given to other aspects of the risk. They expressly adopted a passage from the judgment of McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [99] where his Honour noted that Mason J in Shirt had emphasised aspects of the nature of the calculation which needed to be undertaken, being matters which are now set out in subs (2) of s 5B.” [21][22] “There must be an issue as to the interrelationship between ss 5B and 3B. Section 3B provides in effect that the provisions of the Act do not apply in respect of an intentional act that is done with intent to cause injury: see State of New South Wales v Ibbett [2005] NSWCA 445 at [5]-[11] (Spigelman CJ), [121]-[129] (Ipp JA) and [206]-[218]” (at [11]).

“Her Honour rejected an argument that s 3B applied in the present case because she said there was no intention on the part of the defendants to injure the plaintiff. An intentional act may of course be intentional in the sense that it is intended to injure someone without necessarily being directed towards the plaintiff: an issue may arise as to the application of s 3B in that situation” (at [12]).

The relevant intentional act need not be directed towards the plaintiff.

The Civil Liability Act 2002 NSW, s 5B(2), provides a framework for deciding what precautions a reasonable person would have taken to avoid a risk of harm. It involves weighing the factors set out in ss 5B(2)(a) and 5B(2)(b) against those in ss 5B(2)(c) and 5B(2)(d) (subject to each being applicable in the particular circumstances of the case). [44 – 57]

Section 5B(2)(a) does not require proof that the harm would probably occur. All the section requires is that the probability that the harm would occur if care were not taken must be considered.[49]

The probability as to whether a reasonable person would have taken precautions against a risk of harm, pursuant to s 5B(2)(b), must be considered objectively by reference to the particular circumstances of the case.[52]

The characteristics of a reasonable person in the position of "that person" in s 5R(2)(a) include the characteristics of a child (where the plaintiff is a child). [82] [84] [86] [88]

Although “[T]here was no explicit reference to social utility… there is nothing to suggest that the primary judge did not accept and act on the basis that Telstra’s activity had substantial social utility.” [23] In other words, section 5B does not require a judge to mechanically list the criteria and explicitly deal with each.

The appellant submitted that the primary judge should have used later measures taken by the respondents as showing that the risks associated with the steps could have been minimised by very modest expenditure. He also submitted that s 5C did not apply to measures taken once the precise risk at the time of the accident had ceased to exist, and so did not apply to the second set of measures taken in this case. [41]

Even where there has been a change from the risk at the time of the accident, s 5C may still apply. The question is whether something could have been done to have avoided that risk, and it does not matter if at the time of the later actions there had been some change to the nature of that risk. [43]

This section does not require a judge to explicitly address each part of section 5C.

Section 5C does not prevent the examination of subsequent action for the purposes of assessing the practicability of avoiding the risk and burden involved. [16]

The appellant suffered local nerve damage to the thighs following surgery on his lumbar spine. The trial judge held the respondent breached his duty of care to the appellant by failing to warn of the material risk of local nerve damage. However, the trial judge concluded that the appellant did not establish that he would have declined the surgery if warned of that risk. On appeal, the issue for determination was whether the trial judge erred (a) in failing to consider a risk that did not eventuate, but might, had an appropriate warning been given, have led the plaintiff not to have the operation and (b) in finding that the only relevant breach of duty was the failure to warn of the risk that in fact materialised, but where a warning would not have led the plaintiff to decline an operation.

Held per Allsop P dismissing the appeal (Basten JA agreeing in part, Beazley JA dissenting), (at [4], [12]-[14]):

Thus, the task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as "proximate cause" or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not.

…

The enquiry and conclusion under s 5D(1)(b) involve a value judgment. In circumstances where s 5D(1)(a) has been satisfied, for the enquiry under (1)(b) to produce an answer that the scope of the liability of the medical practitioner in Dr Kam's position should not extend to the harm that would not have occurred had he or she not been negligent, it is necessary that there be a conclusion either of the tenuousness of the factual link or some limitation by reference to the rule of responsibility involved. For instance, in Chappel v Hart [1998] HCA 55; 195 CLR 232 at 257 [66] and Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 460 [83], Gummow J gave the example of harm being caused by the misapplication of an anaesthetic in an operation that would not have taken place had the doctor disclosed some inherent medical risk. His Honour characterised the sheeting home of liability as (Chappel at 257 [66]) an "absurd" or "unjust" or (Rosenberg at 460 [83]) an "unacceptable" result that would prevent the law concluding that the negligence caused the harm. This analysis was, of course, at common law under the approach dictated by March v Stramare in which value judgments form part of the process of reasoning about causation. The same kinds of value judgments attend the operation of s 5D(1)(b) (and s 5D(4)), as well as, in another context, s 5D(2). The drawing of a conclusion that a consequence of posited liability would be "unjust", "absurd" or "unacceptable" would be relevant to the conclusion of appropriateness for s 5D(1)(b). Thus, to use the language of the statute, one might restate the point made by Gummow J in his Honour's example by asking whether it is appropriate to extend liability to the defendant where his or her negligence only placed the plaintiff in the place at the time permitting a risk unrelated to that involved in the duty that was breached to come home. If the ceiling of the operating theatre falls in, if the surgeon collapses and strikes the patient, if the anaesthetist misapplies the anaesthetic, if any of countless other things, foreseeable or unforeseeable, go wrong with an operation, a value judgment, based on the rule of responsibility concerned (Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22) will have to be made, under s 5D(1)(b). It is in this enquiry that the relationship between the content of the duty (the rule of responsibility), the nature of the risk the subject of the duty and what harm occurred is important: March v Stramare at 516; Faulkner v Keffalinos (1970) 45 ALJR 80 at 86; H L A Hart and T Honoré Causation in the Law (Oxford, 2nd Ed, 1985) at 122.

At common law, the ascription of a causal character to a factor without which the harm would not occur, rather than of a non-causal character as a mere condition placing the plaintiff at the place of the harm, depends ultimately on a value judgment (that may well be contestable) made by reference to such (overlapping and at times synonymous) factors as the rule of responsibility and the legal policy underlying it, the content and scope of the duty, the risk addressed by the rule and the duty, the character of the breach, the foreseeability or remoteness of the harm, the intervention of other factors (human and non-human) and their nature, and evaluative common sense. Such considerations also find their place in the enquiry in s 5D(1)(b). Causation is part of the legal analysis concerning whether to attribute legal responsibility and award compensation in a just and coherent way conformable with the legal rule at hand.

Here, unlike in the above examples, the harm was factually caused (under s 5D(1)(a)) by the manifestation of an inherent risk that was related to the duty that was breached. The harm here did not occur by the acts or omissions of a third party, or by misapplied anaesthetic, or by some random act or circumstance of the day distinct from the duty to warn. One of the risks, of a number of which Mr Wallace should have been warned, came home. Mr Wallace was in one sense entitled to make his decision on the basis of complete information. That said, the approach to the enquiry under s 5D(1)(b) should reflect the underlying legal aims of the duty and the rule of responsibility: that is, to protect the patient by holding the doctor responsible for the harm that may result from material inherent risks that were not the subject of warning. The duty and the rule of responsibility are not to protect the patient from the risk of an uninformed decision; they are not to protect the integrity of the decision: Rosenberg at 456 [61] and Rogers v Whitaker at 489-490. They are to protect the patient from harm from material inherent risks that are unacceptable to him or her.

The respondent submitted that this Court had adopted a construction of s 5D(1) which precluded a finding of causation based on material contribution, absent persuasion that the tortious conduct was a necessary condition of the harm, in the sense that the harm would not have occurred "but for" the tortious conduct: see Woolworths Ltd v Strong [2010] NSWCA 282 at [48] (Campbell JA, Handley AJA and Harrison J agreeing).

This proposition gives rise to a number of difficult issues. First, it may require consideration of whether the statements in Woolworths were consistent with other authority in this Court, including Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [89]; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] and Mobbs v Kain [2009] NSWCA 301 at [107]. Secondly, it raises questions as to how s 5D operates in different circumstances. For example, causal relationships may involve either sequential or concurrent elements or conditions, or both. Thirdly, the causal relationship can operate through different kinds of medium: on the one hand, a negligently constructed building may collapse through ordinary physical processes, causing injury, or, on the other hand, a negligent representation may only operate through the conscious assessment and decision-making processes of an individual, as in this case. Fourthly, the requirements of s 5D(1) apparently operate as the general rule, with flexibility being permitted "in an exceptional case" where the general rule is not satisfied: s 5D(2).

It is also commonplace to analyse causal factors as being necessary or sufficient, or both. 'The straw that broke the camel's back' is a necessary, but not sufficient, causal factor. Each grain of sand put in the balance against a one gram weight is necessary to tip the balance at a particular point: none alone is sufficient. For a factor not to be a necessary one, the event must have occurred absent that factor.

The foregoing analysis is, of course, inaccurate in terms of civil litigation. To be a necessary condition, it is sufficient that the court is satisfied that the factor was probably necessary. Once satisfied that the particular factor was operative (in the present case, on the mind of the appellant) it may be but a small step to conclude that it was also necessary. Inferences derived from the course of negotiation may be sufficient in that respect. In the example of physical causation noted above, each grain of sand may constitute a material contribution to the tipping of the balance and each will satisfy the 'but for' test.

For present purposes, the evidence of the appellant, if accepted, could properly have led to an inference that the respondent's assurances were, in the sense discussed, a necessary condition of the conduct which led to the accident. On no sensible construction of s 5D, could it be said that such a conclusion was not open to the trier of fact. Alternatively, sub-s (2) may be available. Accordingly, questions of causation should not preclude an order for a new trial.

In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [11], [41] the High Court has made clear that a court's decision about causation by negligence must now be approached in accordance with s 5D.

The law of negligence operates in a framework of assumptions about how one person in society should act towards another. Those assumptions are involved in the notion of taking reasonable care. The assumptions are incompletely articulated, and come to be understood more through ostensive definition than through explicit exposition. The assumptions are seen as having a sufficiently wide degree of acceptance to be applied to everyone in the society, and a sufficient degree of wide acceptance to be applied by everyone who is given the opportunity to think about and discuss them. Being applied to everyone in a society makes them a fit subject for being the law rather than a private or sectional standard. Being able to be applied by everyone who is given the opportunity to think about and discuss them makes the topic of whether there has been a failure to exercise reasonable care a topic fit to for a jury to apply, as usually occurred in the earlier days of the tort of negligence. The members of a jury might initially have been randomly chosen members of society, but the trial process itself, and the opportunity for discussion in the jury room, provided each juror with the occasion for reflection and discussion about the standard of conduct that was being applied.

The question that arises under s 5D(1)(a) of whether a breach of duty is a necessary condition for a particular harm to a plaintiff that follows it in time is purely an objective factual inquiry, dependent on knowledge of how in fact one type of event brings about a different type of event.

There are also two different types of normative evaluation involved in the application of s 5D. One of them arises in the inquiry under s 5D(2), of whether, in an exceptional case and where there has been negligence that cannot be established as a necessary condition of the occurrence of harm, that negligence should nonetheless be accepted as establishing factual causation. Section 5D(2) directs the court to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. The occasion for making that sort of evaluation does not arise in the present case. The other arises under s 5D(1)(b), of deciding "that it is appropriate" that the person who has failed to act with reasonable care should be held liable for the particular harm concerning which factual causation has been established.

The Review of the Law of Negligence Final Report, September 2002 ("the Ipp Report") that is the avowed source of the Civil Liability Act, recommended that the test for causation should include separate elements of factual causation and scope of liability (Recommendation 29, at [7.49]). At [7.42] the Report says:
" ... a finding that the negligent conduct was a necessary condition of the harm may, by itself, be sought to justify a conclusion that the defendant ought to be held liable for the consequences of the negligence. The point is not that imposition of liability may not be justified, but only that a finding that the negligence was a necessary condition of the harm is not, by itself, sufficient to support that conclusion, because there is an infinite number of necessary conditions of every event. For this reason, the Panel recommends a legislative statement to the effect that the issue of causation has two elements - factual causation and scope of liability - both of which need to be addressed."

One of the ways in which the existence of an "infinite number of necessary conditions of every event" is manifested in the attribution of responsibility lies in separating out those necessary conditions that fail, at a general level, to meet a standard of acceptable behaviour by one member of society towards another from other necessary conditions that do not involve such a failure. Evaluation of any action for the purpose of attribution of responsibility recognises that the action occurs in the context or against a background of circumstances and actions that are in themselves neutral or normal for evaluative purposes. In attributing responsibility for a motor car collision, it may well be that the accident would not have happened if one of the drivers had not been invited to meet a friend, supposing that the accident happened en route to that meeting. While the friend's invitation is a factual cause of the accident, it is inappropriate to attribute responsibility to the friend for issuing the invitation. This is because inviting a friend to visit is the sort of thing that is itself part of the ordinary background of social action that is not in itself blameworthy. Suppose instead that the accident would not have happened if one of the drivers had not borrowed the car involved. Whether the owner's lending the car is itself blameworthy, and deserving of the imposition of liability for the accident, will depend on matters such as whether a defect that the owner should have known about was part of the physical cause of the accident, or whether there was no such defect and the accident would not have occurred without negligent driving by the other driver involved. It is the blameworthiness of the particular necessary condition for the accident that makes it appropriate to attribute responsibility to the person who performed that necessary condition. Conversely, if a person's action is a necessary condition of particular harm happening but is not itself blameworthy, that person's action is not seen, for the purposes of attribution of responsibility, as justifying the imposition of liability. That does not involve denying the causal role of the necessary condition, just saying that not all causes deserve the attribution of legal liability.

This does not, however, provide an adequate explanation of the operation of s 5D(1)(b). That is because s 5D is concerned with providing for a test for when "negligence caused particular harm”. "Negligence" is defined in s 5 as meaning "failure to exercise reasonable care and skill”. The scope of s 5D is wider than the tort of negligence, because s 5A(1) provides that "This Part [Part 1A - Negligence] 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." However, the notion of a failure to exercise reasonable care and skill, whether used in the law of tort or in the other contexts to which s 5A(1) refers, already has within it the notion that there has been a departure from proper standards. Section 5D(1)(b) implicitly assumes that there might be some situations in which a person has failed to exercise reasonable care, and that that failure to exercise reasonable care was a necessary condition of the occurrence of the harm, but even so it is appropriate for the scope of the negligent person's liability not to extend to the harm so caused.

Deciding whether conduct has failed to meet the standard of reasonable care is an evaluation of the conduct, by reference to standards of how one member of society ought behave towards another. The normative element in that exercise involves applying to the particular alleged breach a standard of how, at a fairly high level of generality, people ought behave towards one another. The focus of s 5D(1) is different to that - it evaluates both the conduct itself and also the connection that there is between a failure to exercise reasonable care, and particular harm that a particular plaintiff suffers following that event…

…When a jury decided negligence cases under the common law, the question of causation was the province of the jury. The normative standards that were involved in deciding causation were ones that ordinary members of the community understood and could apply. The widely held understanding of ordinary people is often called "common sense" - sense that is common to everyone - and judges adopted and invoked this notion of "common sense" to explain to jurors the sort of connection between failure to exercise reasonable care, and subsequent harm to the plaintiff that warranted finding that the defendant was legally liable. Now negligence cases are decided by judges sitting alone, without the assistance of other fellow citizens to help them decide whether holding a defendant responsible for having acted negligently would accord with common standards of when people ought be held responsible. In this context a judge's decision about whether it is "appropriate", within the meaning of s 5D(1)(b), to hold a defendant liable for the consequences of his negligent act should still be decided by reference to the standards that the general mass of the community would understand and apply.

In my opinion, it is not an answer to these findings that Mr Doherty's own contributory negligence contributed in a "but for" sense to his own injuries; nor in my opinion can it be said in terms of s 5D(1)(b) that Mr Doherty's own contribution was such that SNSW's liability should not extend to Mr Doherty's injuries. The effect of Mr Doherty's contributory negligence is appropriately dealt with by apportionment.

It must be asked whether it is "appropriate" for the scope of the appellant's liability to extend to the wasted costs consequent on the dismissal (s 5D(1)(b)), with consideration of whether and why responsibility for the harm should be imposed on the appellant (s 5D(4)). The starting-point is that the appellant's negligence brought the occasion for [the opposite party's] application pursuant to r 29.9.

It is not necessary ... to attempt to forecast what might have occurred if the appellant had acted otherwise than he did in his conduct of the proceedings at the hearing. Speculation on whether the dismissal might have been averted if the appellant had acted otherwise than he did in opposing the application is not a sound basis for finding a break in causation, and does not in my view materially weigh against imposing responsibility on him. His negligence brought the situation about, and failure so to act as to avert the dismissal, whether or not negligence in itself, should not work to his advantage.

As to error on the part of [the District Court judge], a barrister or solicitor should prepare and conduct proceedings so as to guard against the judge falling into error. Even if [the judge] was persuaded to an over-strict view of the presentation of both parties' asset positions, by his negligence the appellant enabled [counsel for the opposite party] to exercise the persuasion. The appellant submitted that it was not appropriate that he should be found to have caused the respondent's harm, if the judge had contributed to the harm but it was not open to the appellant to claim for contribution or reduction for proportionate liability. That is no reason to relieve the appellant from his responsibility for the harm.

In relation to s 5D, and the determination of whether it is appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent, is to be considered as a matter of common sense taking into account any relevant policy considerations that might assist in determining whether or not, and why, responsibility for the harm to the respondent should be imposed upon the first appellant. [79]

The grammatical structure of sub-s (1) is curious: it should be understood as requiring that, subject to sub-s (2), a court should not find that negligence caused particular harm absent satisfaction that it was a “necessary condition” of the occurrence of the harm and that, subject to sub-s (4), the court is satisfied that it is “appropriate” for the negligent person’s liability to extend to such harm. [97]

In relation to s 5D(1), the question of causation consists of two elements, being factual causation and scope of liability. [99]

As s 5D(1) shows, the ‘but for’ test is now to be a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2). [100]

The authorities demonstrate that in slip and fall cases, it is not enough for the plaintiff to prove that a breach of duty created a risk that a floor would become slippery. The plaintiff must also prove that fulfilment of the duty would have prevented the accident on the balance of probabilities, which is confirmed by sections 5D and 5E. [34]

At common law, the “but for” test had a role as a negative criterion of causation. If one could not conclude on the balance of probabilities that the harm would not have happened but for the negligence, then subject to certain qualifications, one could not conclude that the harm was caused by the negligence: at [44]

Section 5D(1)(a) identifies “that the negligence was a necessary condition of the occurrence of the harm”. “Negligence” is defined in section 5 as “failure to exercise reasonable care and skill”. The statutory test for causation therefore usually requires a decision about whether the failure to exercise reasonable care and skill was a necessary condition of the occurrence of the harm – “usually” because section 5D(2) recognises “exceptional” cases: at [46]

At common law, a defendant did not materially contribute to or cause a particular injury merely by materially increasing the risk of injury: at [47]

However, concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case: at [48]

There can only be causation if the “necessary condition” test in section 5D(1)(a) is satisfied. Section 5D(1)(b) then poses an additional test that it is appropriate for the scope of the negligent person’s liability to extend to the harm caused: at [49]

Section 5D(1) requires the court to consider the particular harm that the plaintiff in the proceedings has suffered: at [50]

These aspects of section 5D are illustrated in Adeels Palace, where French CJ, Gummow, Hayne, Heydon and Crennan JJ identified why causation was not established – because “[i]t was not shown to be more probable than not that, but for the absence of security personnel… the shootings would not have taken place”: at [51]

Although the Housing Corporation breached its duty of care to the appellant by not providing the Council with the information it had concerning damage and injury previously caused by the tree, it was not demonstrated that this breach was causative of the injury to the appellant, as it was not shown that the Council would have removed the tree had they been given the information, and the tree could not have been lawfully removed without its consent: see s 5D(1)(a).[57]

In response, Mr McClintock submitted at trial that by virtue of s 5D of the Civil Liability Act 2002 (NSW) the respondents could not have led evidence as to what they would have done if properly advised. When the primary judge pointed out that s 5D in terms referred to “negligence”, Mr McClintock drew attention to the fact that the Civil Liability Act applied to all claims however framed if they can be said, in substance, to be a claim for damages for harm resulting from negligence. I assume he was intending to refer to s 5A(1) which provides that Pt 1A of the Civil Liability Act “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”: see Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Rep ¶81 – 830 (at [167]) per Ipp JA (Giles and Tobias JJA agreeing). Mr McClintock also referred to judicial observations about treating with caution, in failure to warn cases, evidence from the plaintiff about what he or she would have done if the defendant had acted otherwise. [103]

The appellants did not as I understand their submissions at trial challenge Mr McClintock’s characterisation of the case as one to which the Civil Liability Act applied. On that basis s 5D precluded the respondents giving the sort of evidence of whose absence the appellants complained. [104]



If s 5D applied, then factual causation was to be determined absent direct evidence from the respondents and “subjectively in the light of all relevant circumstances”: s 5D(3)(a), Civil Liability Act. The same approach was available at common law. [106]

…it is necessary to bear in mind that the issue of causation is to be dealt with in accordance with s 5D of the Civil Liability Act. That requires the Court to consider that the breach of duty identified was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused. Section 5D(1) “shows, the ‘but for’ test [of causation] is now to be … a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2)”: Adeels Palace (at [45], [55]). [141]

As I said in Mobbs v Kain [2009] NSWCA 301 (at [107]), with Macfarlan JA’s concurrence:

“The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely ‘the breach of duty by the defendant caused the particular damage that the plaintiff suffered…[and] [t]he existence of the relevant causal connection is determined according to common sense ideas’: see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments).” [142]

In Adeels Palace (at [43] – [44]), the High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) observed that dividing the determination of the question whether negligence caused particular harm into the two s 5D(1) questions expressed “the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare to be the common law’s approach to causation”. Their Honours found it unnecessary to examine to what extent the March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 approach might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1), emphasising that where s 5D was engaged, its provisions must be applied. [143]

The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the commonlaw principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely “the breach of duty by the defendant caused the particular damage that the plaintiff suffered…[and] [t]he existence of the relevant causal connection is determined according to common sense ideas”: see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments). [107]

In accordance with s 5D(1)(a) of the Civil Liability Act, it was necessary that his Honour identify the negligence which was “a necessary condition of the occurrence of the harm”; see also Fogarty v Creasey [2002] NSWCA 318 (at [33]) per Heydon JA (Meagher and Beazley JJA agreeing). The respondent bore the burden of proving on the balance of probabilities any facts relevant to that issue: s 5E. [108]

Turning to the primary judgment, I would observe that, to the extent his Honour appeared to address this issue, his reasons were found in his conclusion (at [70]), that if the second appellant had been driving more slowly, he could have stopped in time or avoided the collision. It is difficult, with respect, in the absence of any finding as to the speed at which the second appellant should have been driving, to sustain that conclusion. [109]

In my view his Honour did not identify the negligence which was “a necessary condition of the occurrence of the harm” and the respondent did not otherwise establish that any conduct on the second appellant's part caused the particular damage that the respondent suffered. Rather, as a matter of common sense, it was the respondent’s dash across the road which caused the collision. [110]

“…The point remains that, in the absence of scientific clarity, causation may be found in arriving at legal responsibility by inference and with evaluative judgment, provided that actual satisfaction is reached and that, as was made clear in Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627, the finding is in accordance with principle and not a “value judgment at large” (per Gleeson CJ at [29]).”[39]

“…Section 5D enshrines evaluative judgments in a determination that negligence caused particular harm, those of appropriateness for the scope of liability to extend to the harm for the occurrence of which the negligence was a necessary condition (s 5D(1)(b)) and of whether and why responsibility for the harm should be imposed on the negligent party (s 5D(2), (4)). It was not mentioned in argument, but underlines the common law principles …” [41]

“The notion that there is an equivalence between a material increase in the risk of injury and a material contribution to injury has been refuted in this Court by Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 especially at 315 – 316 and TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380…”[124]

“In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Spigelman CJ (with whom Davies AJA agreed; Stein JA dissenting) said (at [119]):

“There is a tension between the suggestion that any increased risk is sufficient to constitute a ‘material contribution’, and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes”. [125]

“In Gett v Tabet [2009] NSWCA 76 Allsop P, Beazley JA and Basten JA agreed (at [254]) – as held in Flounders v Millar – that a “material increase in risk was not to be equated with material contribution to the injury and that the plaintiff must establish that it was probable that the risk created by the tortfeasor came home…”[127]

There was a crucial missing link in the evidence as the plaintiff had failed to establish ‘factual causation’ under s 5D (3)(a) on the balance of probabilities – i.e. even if the ambulance service (or the police) had taken him to hospital that he would have submitted to medical assessment.

Section 5D (3)(a) mandates a subjective approach to construing what the plaintiff would have done in the absence of the defendant’s negligence (“Review of the Law of Negligence” (2002) par: 7.38 – 7.40). In this assessment evidence of the following is permissible:
1. conduct of the plaintiff at or about the relevant time;
2. evidence of the plaintiff as to how he or she might have felt about particular matters;
3. evidence of others in a position to assess the conduct of the plaintiff and his or her apparent feelings or motivations, and
4. other matter which might have influenced the plaintiff.

Causation was not established on the balance of probabilities as:the expert evidence adduced by the plaintiff was consistent as to the cause of the fire but inconsistent as to the mechanism of the electrical fault in the cable; and there existed another possible cause, namely a faulty thermostat that could explain the damage to the insulating sheath of the electrical cable without any negligence on the part of the respondents.

The rejection of one of two competing hypotheses as to the cause of an event does not mean that the other must be accepted; Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 per Lord Brandon.

The argument misapprehends the relationship between s 5D and the “eggshell skull rule”, as the eggshell skull rule makes a tortfeasor liable for injury caused by his or her tort even where the injury is disproportionate -it is not a rule of causation.

The question relevant to causation is not whether or not the plaintiff would, in other circumstances and some other time, have succumbed to his vulnerability and suffered some other psychiatric disorder.

Section 5D is directed to the “particular harm” suffered to the plaintiff and whether the negligence established was a necessary condition for the occurrence of that harm. Simpson J added that this is no more than a statutory formation of the “but for” test.

The effect of s 5D is not to assume that the vulnerability in a plaintiff saves a tortfeasor from the consequences of his or her tort.

Section 5D(1) fundamentally reflects common law. [146]

The onus of proving, on the balance of probabilities, any fact relevant to the issue of causation lay on the respondent at all times: s 5E, CL Act. To satisfy the element of causation he had to identify the action which, on the available evidence, the primary judge could conclude ought to have been taken. That action, if failure to take it was to be considered negligent, had to be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It was necessary to establish that the primary judge could conclude as a matter of direct evidence or legitimate inference that, more probably than not, the installation of the transverse stair access system would have prevented or minimised the injuries the respondent sustained: Kuhl (at [45]) per French CJ and Gummow J; (at [104) per Heydon, Crennan and Bell JJ (all citing State of Victoria v Bryar (1970) 44 ALJR 174 (at 175) per Barwick CJ, McTiernan, Owen and Walsh JJ concurring). [80]

The authorities demonstrate that in slip and fall cases, it is not enough for the plaintiff to prove that a breach of duty created a risk that a floor would become slippery. The plaintiff must also prove that fulfilment of the duty would have prevented the accident on the balance of probabilities, which is confirmed by sections 5D and 5E. [34]

Section 5E is quite clear, and does not change the pre-existing law: at [59]

Nothing in section 5E indicates that the type of reasoning in Shoeys case is no longer open. It was, and still is, possible for a plaintiff to satisfy its onus of proving causation if the court can infer that it is more likely than not that the failure to exercise reasonable care and skill was a necessary condition of the particular harm that the plaintiff suffered. In Shoeys there was no evidence of precisely what the plaintiff had slipped on or how long the substance had been there. It was purely a question of the inferences open, on the facts of that case, whether the plaintiff had discharged her onus of proof of causation: at [60]

The inferences open in the present case are dependent upon the facts established in the present case: at [62]

The expression " obvious risk " in s 5F(1) of the CL Act has been held by me to mean that both the condition and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgment: Jaber at [35]. [120]

As noted above at [84] the relevant standard lies somewhere between a trivial risk and one that is likely to occur. In Fallas I expressed the view that, as a general guide, the risk could not be " significant " unless there was a real chance of it materialising. As one must judge the issue prospectively and not retrospectively, the question is whether there was a real chance of the risk of what would clearly be significant harm occurring if the appellant dived from the position the vessel was in at the time he did so. [122]

Beazley JA (McColl and Basten JJA agreeing):

Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which a plaintiff was in. [75]

The question of obvious risk therefore requires a determination of whether the plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff. [76]

Photographic evidence should not be used to trump other compelling evidence such as eye witness evidence – Blacktown City Council v Hockin [7] to [13] per Spigelman C
J

The defective slab was obscured by shadows, and in these circumstances the risk of harm would not have been obvious to the plaintiff or to a person exercising ordinary perception, intelligence and judgment – Fallas v Mourlas [2006] NSWCA 32 at [100] per Tobias JA

The extent of obscurity need only be such that a person keeping a reasonable lookout would be unlikely to see the defect in time to avoid it – [75] citing Brodie and Hastings

Diving head first from a bollard, 2-3m above the water level without checking its depth by reliable means (such as duck-diving or jumping) was an obvious risk within s 5F(1) thus there was no duty to warn under s 5H(1).

The sexual assault was a novus actus interveniens which broke the chain of causation.

The causal connexion was broken by the assailant’s “free, deliberate and informed act.” – Bennett v Minister of Community Welsfare (1992) 176 CLR 408

Similarly, it was not reasonably foreseeable that a young woman who was immobilised to the extent of having to use crutches would thereby be exposed to a criminal sexual assault.

Re-assessment of damages under section 16 to reduce non-economic loss by 5%.

The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Whether this risk was obvious (within s 5F of the Civil Liability Act) to a person in the position of Mr Dederer has to be answered objectively and by reference to a notional reasonable fourteen-and-a-half year-old person with the knowledge of the area and conditions possessed by Mr Dederer at the time (Fallas v Mourlas (2006) Aust Torts Reports 81-835) (at [146] – 173]).

Even without a sign prohibiting diving, it should have been obvious to a reasonable fourteen and a half year old that such a dive was dangerous and could lead to catastrophic injuries. Therefore the risk that materialised for Mr Dederer was an obvious risk of the dangerous recreational activity he was engaged in. The appeal by the Council succeeded.

Orders made by Dunford J set aside and substituted by a judgment in favour of the Council with costs.

Against Mr Dederer’s share in his responsibility for the damage he sustained must be weighed the RTA’s share of responsibility. Mr Dederer’s age at the time was also a relevant consideration. A reasonable fourteen-and-a-half year-old boy would have appreciated that it was highly dangerous to dive as he did. Therefore Mr Dederer’s share in responsibility for the damage he sustained must be regarded as equal to that of the RTA (at [316] – [321]).

Orders of Dunford J regarding apportionment of damages set aside and substituted with an apportionment of 50 per cent. Otherwise, appeal by the RTA dismissed.

This section requires “consideration of the position of the person who suffers harm and whatever else is relevant to establishing that position. The characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates, who chose to get up early in the morning and play unsupervised, is part of that position.” [28]

The risk in “obvious risk” is a reference to the risk of harm and not a reference to the danger itself. [86]

The provisions of ss 5F, 5G and in particular the statutory definition of “obvious risk” have no relevance to the question of breach of duty. [83]

The focus of attention for breach is still on the defendant, whereas for volenti (assumption of risk) questions the focus remains on the plaintiff – Vairy v Wyong Shire Council [2005] HCA 62.

The statutory scheme created by Div 4 of Part 1A of the Act is not expressed with clarity (at [71]).

To make out the defence of volenti non fit injuria the defendant must prove three elements: first, that the plaintiff perceived the existence of the danger; second, that he fully appreciated it; and third, that he freely and voluntarily agreed to accept the risk.

The effect of s 5G(2) is that a plaintiff is “presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. A plaintiff cannot rebut the presumption by claiming that even though he or she was aware of the general risk of harm, he or she was not aware of all its possible manifestations, including the one that eventuated” (at [89] – [90]).

The respondent failed to make out defence of volenti.

Appeal successful on liability (at [7], [49], [54] and [117]]). The trial judge should have found that by placing the bollard in the centre of the pathway the respondent breached its duty of care to the plaintiff.

The culpability of the appellant and respondent were equal such that they should bear equal liability for the damage. The appellant’s responsibility for the accident should be assessed at 50% (at [110] – [111] and [13]).

Section 5G of the Act makes clear that the presumption is rebuttable that a person who suffers harm from an obvious risk is presumed to have been aware of the risk of harm. It is rebutted if the person proves on the balance of probabilities that he or she was not aware of the risk. [115]

In this case the respondent successfully rebutted obvious risk by proving lack of awareness of risk.

The occupier should have done more than placing a warning sign, which was easily overlooked, such as restricting access to the area while cleaning.

This is an example of the failure to erect warning signs relating to an obvious risk not being negligent. [19]

“An exercise program” was a sport for the purposes of section 5K(a) and further subsection (c) was not an exhaustive. A gym falls within the proviso as a place “where people ordinarily engage in sport or in … [a]” [16]

...the warning given by the gym was not a section 5M risk warning under the circumstances as the defendant should have:

1. Inquired further about the nature of the plaintiff’s knee injury once informed about it initially;
2. known that if the plaintiff had required rehabilitative treatment, lunges were too risky for her;
3. not prescribed this exercise program for her.

Significance is to be informed by the elements of both risk and physical harm [52]: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32

Diving head first from a bollard, 2-3m above the surface level was a dangerous recreational activity as it presented a risk of physical harm more than trivial and there was a real chance of the risk materialising if the depth of the water was misjudged - s 5K. Accordingly there was no liability under s 5L(1).

1) Her Honour was not satisfied that the activity being undertaken at the time Mr Mourlas was shot was a “dangerous recreational activity” as defined by the Act; and
2) therefore Mr Fallas was not entitled to the immunity provisions of the Act, being no liability for harm suffered from obvious risks of dangerous recreational activities, under s 5L of the Act.

An objective test is required in determining whether, in terms of s 5K, a recreational activity is "dangerous".

It is not practicable or desirable to attempt to impose a further definition on "significant", other than saying that the term lays down a standard lying somewhere between trivial and likely to materialise.

The dangerousness (in terms of s 5L) of a recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time. All relevant circumstances that may bear on whether those activities were dangerous in the defined sense include relevant matters personal to the plaintiff, as well as other matters.

When considering whether there has been a materialisation of an obvious risk, a distinction may have to be drawn between a risk of negligent conduct on the part of another and conduct that is grossly negligent.

Given the circumstances of the present case, the recreational activity in which the respondent was engaged carried with it a significant risk of physical harm and, therefore, was a dangerous recreational activity within the meaning of s 5K.

The risk should have a real chance of materialising for it to qualify as significant but this should be used as no more than a general guide.

All of the surrounding circumstances, which occurred immediately prior to the respondent’s suffering the relevant harm, must also be identified for the purpose of determining whether the risk which materialised was "obvious". The risk in the present case was obvious within the meaning of the definition of that expression in s 5F.

The relevant physical harm in question in the present case was that resulting from being shot, which fell within the concept of physical harm used in the definition of "dangerous recreational activity".

However, given the way the case was run, the defendant failed to establish that there was a significant risk of injury occurring from the accidental discharge of a firearm while shooting kangaroo at night, in the circumstances in which the plaintiff was involved. Therefore, the defendant failed to establish that the recreational activity in which the plaintiff was engaged on the night in question was a "dangerous recreational activity" for the purposes of s 5L .

The risk which materialised, namely the accidental discharge of a firearm while pointed at the plaintiff, was "an obvious risk" whatever the knowledge, belief and circumstances which existed immediately prior to the discharge.

The definition of “dangerous recreational activity” in s 5K “has to be read as a whole. This requires due weight to be given to the word ‘dangerous’. It also requires ‘significant’ to be construed as bearing not only on ‘risk’ but on the phrase ‘physical harm’ as well. The expression ‘significant risk of physical harm’ is coloured by the word ‘dangerous’ and the phrase ‘significant risk’ cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.”[28]

“The view that a risk is ‘significant’ when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490.”[29]

“A ‘dangerous recreational activity’ cannot mean an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hard ball. In my opinion, the trial judge erred in finding that Oztag was ‘a dangerous recreational activity’.”[33]

The defendant bears the onus of proof under s 5L. The question is determined objectively and prospectively. The standard lies between triviality and likelihood. Significance is informed by both the elements of risk and physical harm; Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32, followed (at [31]).

The appellant's brochure admitted of the gentle activity in which the respondent had been invited to engage. There was nothing to suggest getting swamped by a wave was one of the expected thrills of the cruise (at [32]).

Although s 5L applies whether or not the plaintiff is aware of the risk, the tribunal of fact is entitled to assess the matter from the perspective of what the defendants had or had not represented would be involved (at [33]).

The risk was not obvious (at [34]).

The risk was not inherent in the statutory sense of being unavoidable by the exercise of reasonable care and skill. It had in fact been want of care and skill that caused the injuries (at [36])

The award for economic loss could not be supported on the evidence and had to be reduced (at [57]-[58]).

“'obvious risk' has the meaning given to it by s.5F: see s.5K.” [28]

It is unlikely that bicycle riding is encompassed in the expression “dangerous recreational activity.” The risk of falling off the bridge was not a risk of bicycle riding as such, but a risk created by the defendant. [24]

The courts are considerably wary of any statement by persons that he or she would have obeyed a warning sign: see Commissioner of Main Roads v. Jones [2005] HCA 27, per Gleeson CJ at [5] to [10] and Rosenberg v. Percival at [16]. That wariness has is now enshrined in statute: s.5M of the Act. Whether or not such evidence has been given, the whole of the evidence must be considered to determine the impact a warning may have had on a particular plaintiff.[61]

Appeal allowed in part.

In my opinion, it is clear that s 5O modifies the common law and provides a defence not available at common law, with an onus of proof lying on a defendant: see Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 at [54]-[61]. [21]

Although it might be said that it does not so clearly introduce new issues as does s 42 of the Civil Liability Act, in my opinion the decision of the Court of Appeal concerning s 42 in Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15] is applicable, and supports the view that s 5O should be pleaded. [22]

In my opinion, s 5O does contemplate proof of material facts which, if established, would negative a finding of negligence which otherwise might be available; so in my opinion the material facts contemplated by s 5O should be pleaded in a defence, even if specific reference to s 5O is not mandatory. However I would say that specific reference to s 5O would be desirable. [23]

First, the Civil Liability Act 2002 (NSW), s 5O does need to be pleaded. It is not just a matter of evidence. It transfers, to a degree, the onus of proof. It transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal. It also may raise, in other cases, although it did not here, issues as to schools of medical practice, the geographical or other areas in which those schools might obtain and other matters requiring specificity and particularisation. In my view, for the reasons Hodgson JA has given and for the reasons in Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151 as well, it is a matter that needs to be pleaded. There is also the question of the surprise rule and precise terms of the relevant rule, Uniform Civil Procedure Rules 2005 (NSW) r 14.14. [51]

“There is little guidance to be found in relation to s 5O in the authorities. The section is mentioned briefly and inconsequentially in Ambulance Service of NSW v Worley [2006] NSWCA 102 at [38], and there does not appear to be any other case in which the section has been considered. Both the plaintiff and the defendant supported their arguments in relation to s 5O by referring to the Ipp Report (Review of the Law of Negligence, October 2002), and the defendant had regard to the relevant Second Reading Speech and explanatory memorandum. In my view the section is intended to operate as a defence. The section is expressed so that "a person practising a profession does not incur a liability in negligence" if a certain state of affairs can be "established." The italicised words go to the issue of liability, not to the issue of negligence, although in my view this is of little consequence. There is force in the plaintiff's submission that the fact that the test is expressed in the negative indicates that Parliament did not intend to effect a more radical change in the standard of care to be applied in professional negligence cases.”

The defendant breached the duty of care owed to applicant by failing to obtain an ECG in 2001.

An employer has a non-delegable duty to exercise reasonable care to provide employees with a safe place of work, a safe system of work, and safe plant and equipment. Where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment, the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters: Civil Liability Act 2002 s 5Q. [65]

In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) stated that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's personal responsibility for his or her own safety. As Callinan and Heydon JJ remarked in Vairy v Wyong Shire Council (2005) 223 CLR 422, at 483 [220], a person owes a duty:


... not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.

These remarks are consistent with the provisions of the Civil Liability Act 2002, section 5R(1): Consolidated Broken Hill per Ipp JA at 558-559 [67]. Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time: section 5R(2)(b); Joslyn v Berryman (2003) 214 CLR 552 at 558 [16].

Kirby J in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 168 - 169 provided an analysis of appellate review of contributory negligence:


This Court has said many times that appellate courts must show restraint in disturbing the apportionment ordered for contributory negligence as between a plaintiff and a defendant, having regard to their respective shares of responsibility for the damage. The point is self-evident. Involved in such an apportionment is a comparative examination of the whole conduct of each negligent party in relation to the circumstances of the accident and an evaluation of the comparative importance of the respective acts and omissions of the parties in causing the damage. Such decisions are evaluative and multi-factorial. Generally speaking, a trial judge, who has full knowledge of all of the evidence, will be in a better position to make such an apportionment correctly. An appellate court, even if it would have reached a different conclusion, will usually be hard pressed to identify an error that warrants disturbance of the primary judge's conclusion on such an issue. Tinkering with apportionments is to be discouraged.

On the other hand, an intermediate appellate court is required by its statute to discharge its own functions of appellate review. If error is shown in the apportionment, it is not only entitled but obliged to set the apportionment aside and to substitute its own decision. In a proper case, this Court will uphold the intermediate court's determination in that regard, although sometimes it will be divided over where the correct line is to be drawn.

The standard of care that applies for the purposes of contributory negligence is prescribed by the Civil Liability Act 2002, s 5R (2), namely, that of a reasonable person in the position of the plaintiff, to be determined on the basis of what the plaintiff knew or ought to have known at the time. [4]

These proceedings were governed by the Civil Liability Act 2002 as Part 1A, Division 8 (including s 5R) dealing with contributory negligence applies to motor accidents: s 3B(2)(a). [36]

As explained by Basten JA in Council of Taree v Wells, there are difficulties in s 5R of the Civil Liability Act. Determining breach of a duty of care and finding contributory negligence are different exercises; in passing, the person who suffers harm does not necessarily owe a duty of care to the wrongdoer, and it was not correct for the judge to speak of the appellant’s “duties to keep a proper lookout as a pedestrian”. However, if the judge required a higher standard of care of the appellant than that of a reasonable person in her position, he would have been in error. [37]

Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time. [83]

Section 5R requires that 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. [105]

Suffice to say that s 5R requires the standard of care be the same as that applied in negligence, in the generic sense referred to by Mason J in Ruprecht.[112]

However the exercise to be undertaken in each case are different. [106]

A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter is to allow for apportionment of responsibility for the injury by reducing the damages available. [107]

Another difference involves the degree of precision by which the activity, including relevant states of knowledge and understanding, is to be identified. [108]

“Thus, the state of the park at the time of the accident was a matter of objective fact. Although some attention was paid in the evidence to identifying what was known by officers of the Council with respect to the use of the pathway by cyclists, the answer to that question was not critical on the issue of liability. It would have been sufficient for the plaintiff to demonstrate that the Council ought to have known that the path was used, or likely to be used, by cyclists. With respect to the plaintiff, the focus of the evidence is often quite different. Although the ultimate question is what a reasonable person in the cyclist’s position would have known and done, it is inevitable that the evidence will focus upon the knowledge, understanding and actions of the plaintiff himself, shortly prior to the accident, in part to determine whether he exercised reasonable care, but also to assess what would be reasonable care in the specific circumstances…” [108]

Pursuant to s 5R of the Civil Liability Act the principles are applicable in determining whether a person has been negligent also applied in determining whether the plaintiff was guilty of contributory negligence in failing to take precautions against the risk of the harm which befell her. The standard of care required of the plaintiff was that of a reasonable person in her position, and the matter was to be determined on the basis of what she knew or ought to have known at the time: s 5R(2). [144]

Section 5R(1) reflects the “fundamental idea that people should take responsibility for their own lives and safety” and also the proposition expressed by Callinan and Heydon JJ in Vairy (at [220]) that “the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized”: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [68] – [70]) per Ipp JA (Giles JA and Hunt AJA agreeing); see also Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor [2009] NSWCA 287 (at [39] – [41]) per Beazley JA (Giles and Ipp JJA agreeing). [145]

The question whether a person has been guilty of contributory negligence is determined objectively. The Council and Stojan bore the burden of proving that the plaintiff had been guilty of contributory negligence: Gordon Martin Pty Ltd v State Rail Authority of New South Wales & Anor (at [42]); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16], [18]) per McHugh J; Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 (at 216); Commissioner for Railways v Halley (1978) 20 ALR 409 (at 419). [146]

A finding of contributory negligence is no different to a finding of negligence and may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW), see Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989 (at 993-994, esp. at [27], [29]) per Gleeson CJ, Gummow and Kirby JJ; Callinan J (at 1015-1017 [145] – [148]). [147]

In my view Stojan’s breach of duty in failing to remove the bins from their position adjacent to the stairs, thus leading to the area of stairs where the plaintiff fell being cast into darkness, caused the plaintiff’s injury. The plaintiff fell because when she was partway up the stairs she could not see where she was going. It is true, as I shall shortly discuss, that she then behaved to a certain extent unwisely in letting go of the handrail and moving forward precipitously, however she would not have found herself in that predicament had the lighting onto the stairs not been obscured by the clothing bins. Stojan’s breach of duty was, accordingly, a necessary condition of the occurrence of the harm to her. Stojan did not contend, that if that conclusion was reached, there was any reason why its liability should not extend to the harm so caused. [149]

In my view the plaintiff was not guilty of contributory negligence either in failing to use alternative exits to the car park (bearing in mind, at least in part, that the primary judge found it was the shortest route and, too, the natural human inclination to minimise effort) or in continuing to ascend the stairs when she encountered the risk. As to the first proposition, the plaintiff was unaware that there was any risk associated with ascending the stairs until she reached the fifth step. As to the second, the risk of descending the stairs in the dark was, in my view, as great as the risk of continuing to ascend them. I would not hold the plaintiff guilty of contributory negligence in either of these respects. [150]

…However once she realised she could not see where she going, ought to have known (s 5R(2)(b)) that moving forward hastily in the dark without retaining a handhold could expose her to the risk of injury. She conceded in cross-examination that she ought not to have let go of the handrail and ought to have been moved more cautiously. In my view that was the approach a reasonable person in her position ought to have adopted. The plaintiff was, accordingly, guilty of contributory negligence but not, as Stojan contends, to the extent of 100 per cent: cf s 5S, Civil Liability Act. [152]

In my view, with respect, the primary judge erred in failing to take into consideration the plaintiff’s evidence that she let go of the handrail and charged forward and, further, in not explaining why, in the circumstances, it was not reasonable to have expected her to have moved forward cautiously in the circumstances. These were not matters, in my view, devised with the benefit of hindsight but constituted conduct which might reasonably be expected of the plaintiff in the circumstances. [153]

I would find the plaintiff was guilty of contributory negligence to the extent of 50 per cent. [154]

As to contributory negligence, the appellant says that the judge applied a subjective test notwithstanding that s 5R of the Civil Liability Act 2002 prescribes an objective test. [144]

This submission is correct. [145]

However, that means that we must ask whether, by the standard of a reasonable person in the position of the respondent on the basis of the respondent’s knowledge, the respondent failed to take precautions against the risk of harm. [146]

The respondent points to the alleged fact that, at the trial, contributory negligence was only mentioned in a perfunctory manner. [149]

The respondent admits that she knew that the slats were missing and took precautions so that children did not fall through. However, her counsel points out that there is nothing to suggest that a reasonable person would think that there was a real risk of an adult falling over and passing through the gap. [150]

I accept that submission and do not consider that the appellant has discharged the onus of proving contributory negligence.[151]

‘8.10 …there is in the Australian community today a widely-held expectation that, in general, people will take as much care for themselves as they expect others to take for them. This is an application of the fundamental idea that people should take responsibility for their own lives and safety, and it provides powerful support for the principle that the standard of care for negligence and contributory negligence should be the same.’

Section 5R(1) reflects this ‘fundamental idea’, as well as the concepts expressed by Callinan and Heydon JJ in Vairy (at [220]).” [40]

“…The risk of injury which materialised was not, as his Honour found, one of which the plaintiff was aware or ought reasonably to have been aware. Stepping on metal pit covers is an everyday experience and does not, or should not, carry with it any significant degree of risk. The only matter which might differentiate the present circumstance from the more general situation was the timber surround of the pit cover. However, its purpose was unclear and it carried with it no express or implicit warning that the pit cover was dangerous to tread on…” [19]

“In dismissing the defence of contributory negligence in a short paragraph, the trial judge dealt with these matters somewhat perfunctorily. Nevertheless, nothing more was required in the circumstances...” [20]

Sections 5R-S do not apply to a cause of action under s 11 of Damage by Aircraft Act as it is not a breach of a statutory duty as established in Proctor v Jetway Aviation [1982] 1 NSWLR 264. The provision “does not impose a statutory duty on anyone to act in any particular way”.

The plaintiff’s failure to check his footing before stepping backwards did not amount to contributory negligence as the trial judge had previously found that his conduct in the circumstances (i.e. hosing the tyres on a muddy, slippery surface while wearing muddy boots) was not in itself negligent.

The trial judge had first found that the plaintiff was aware that a person could suffer an electric shock if their fingers were placed in the light socket if the power was switched on. However he later went on to find that the plaintiff was not aware that the power had been reconnected and further concluded that the plaintiff had in fact accidentally placed his fingers in the socket.

The characteristics of a reasonable person in the position of "that person" in s 5R(2)(a) include the characteristics of being a child. [82] [84] [86] [88]

Grove J made no express reference to Mr Edwards’ deliberate and voluntary decision to cross the rail bridge “despite the obvious and serious risks that faced him in doing so. Appropriate weight must be given to considerations of personal responsibility when determining whether there has been a breach of duty of care or contributory negligence. If due regard is not had to Mr Edwards’ informed decision to take the obvious risk, the concept of personal responsibility is negated.” [67]

Section 5R(1) reflects the idea that the standard of care for negligence and contributory negligence should be the same.[70] In accord with the Premier’s Second Reading Speech to the Civil Liability Amendment (Personal Responsibility) Act 2002 , the essence of the section is that there exists in the “Australian community today a widely-held expectation that, in general, people will take as much care for themselves as they expect others to take for them. This is an application of the fundamental idea that people should take responsibility for their own lives and safety”.

Contributory negligence was increased from one third to one half.

Section 5S applies in “very rare” cases where it can legitimately be said that it is just and equitable to reduce the respondent’s damages by 100%. [93]

The nature of the task to be undertaken in making such an apportionment was stated in Podrebersek in the following terms:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relevant importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case. …” [96]

“The task conferred by s 5S of the Act, to ‘determine a reduction of 100% if the court thinks it is just and equitable to do so’ invokes the notion of comparative culpability flowing from the like term (‘just and equitable’) in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 dealing with apportionment of liability in cases of contributory negligence. This requires attention to the ‘degree of departure from the standard of care of the reasonable man’: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16” (at [12]).

Part 2: Personal injury damages

Wynn Tresidder Management v Barkho[2009] NSWCA 149, 16 June 2009
On 5 April 2004 the respondent, was injured when she slipped and fell at the top of a carpeted ramp which provided access to and from a car park at Neeta City Shopping Centre (the “Centre”), a shopping centre under the care, control and management of Wynn Tresidder Management Pty Ltd, the appellant. The shopping centre was undergoing structural reconstruction.

McColl JA (Tobias and Young JJA agreeing):

… In the circumstance…where a bundle of medical reports expressing competing opinions are tendered without objection, with no oral evidence, any consideration of the weight to be attached to any particular report would include taking into account issues such as those Heydon JA identified in Makita concerning the proper contents of expert reports.[103]

The appellant’s complaint…[that]… none of the respondent’s expert reports the primary judge accepted satisfied Makita… cannot be justified…[104]

There is no direct reference to an action per quod servitium amisit in the provisions of the Act. By contrast, see The Employees Liability Act 1991, and the Motor Accidents Compensation Act 1999.

Part 2 applies where proceedings were commenced after 20 March 2002 regardless of whether injury or death occurred prior to that date; Sch 1, cl 2 (the plaintiffs commenced action on 23 October 2002).

Section 11A(1) states that Part 2 “applies to and in respect of an award of personal injury damages, except an award … excluded from the operation of this Part by s3B”. The defendants sought to bring the plaintiffs’ claim within the ambit of Part 2 by the use of the words “relates to” in the definition of “personal injury damages” (at [18] – [19]). The plaintiffs argued the rule of construction - that if the Parliament had intended to bring about this consequence and to cap or limit claims for loss of service (interfering with a common law right) it would have done so in clear language (at [23] – [24], [26], [32], [34], [36], [38]).

The plaintiffs argued that s 12, which limits damages, did not apply to a quod servitium amisit claim as s 12 applies to compensation to an individual for loss of earnings; here the plaintiffs were concerned with economic compensation for loss of services rendered to them.

The use of the words "relate to" were clearly intended to widen the scope of the term "personal injury damages" so there could be no argument as to whether the class of compensation under consideration fell within the ambit of the Act or not. The purpose of s 11A(2) was to extend the application of the Part beyond tort law (at [41]). It can therefore be fairly said that the loss in this case related to the injury to the employee in that the loss was associated with or connected to the injury. The loss to the employer might only have been indirectly related to the injury to the employee, but it was related to it nevertheless. Therefore the Act and Part 2 applied generally to the plaintiff companies' claims. However, it was impossible to construe s 12(2) so that it applied to them; the words and concepts used in s 12(2) have a clear meaning that is incompatible with a loss of services by a company (at [49]).

On the evidence, there was no reason for the primary judge to consider the operation of s 12, and he did not err in failing to consider that which did not arise for consideration.

“There was a suggestion in the course of oral argument that the imprecision of the plaintiff's evidence at trial did not permit an award of damages for future economic loss because it did not allow determination of the plaintiff's "most likely future circumstances but for the injury", as required by s 13(1) of the Civil Liability Act 2002 (NSW). Underlying such an argument might be a question as to whether the approach explained by Heydon JA in New South Wales v Moss [2000] 54 NSWLR 536 at [87], set out below at [60], remains a correct exposition of legal principle. If s 13 requires some different approach, there are likely to be significant difficulties in assessing reasonable compensation for children who suffer serious injury. In any event, no argument was put based on such inconsistency in approach and accordingly the issue may be left for another time. Nor was it argued that s 13(2) and (3) might preclude a calculation based on a "cushion", as is sometimes undertaken in assessing compensation in circumstances of uncertainty.”

Giles JA in Penrith City Council v Parks [2004] NSWCA 201 at [2];
Cripps AJA in Penrith City Council v Parks [2004] NSWCA 201 at [8];
McLellan AJA in Penrith City Council v Parks [2004] NSWCA 201 at [52]; and
Hodgson JA in Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 at [9 – 15] and especially at [17].

The appellant did not challenge the proposition that damages by way of a buffer may be awarded in determining future economic loss for the purposes of s 126 of the Act. The proposition that an award of that nature is permissible under s 126 was recognised in The Nominal Defendant v Lane [2004] NSWCA 405 (at [53] ff). As Giles JA (Ipp and Tobias JJA agreeing) said in that case (at [61]), "s 126 ... 'enshrines in legislation the method for assessing an uncertain career path that was adopted in Norris v Blake (No 2) '", referring to Professor Luntz, Assessment of Damages for Personal Injury and Death , 4 th ed (2002) LexisNexis Butterworth ([11.2.8]). [3]

Section 126 is directed to assessments by a "court". However, as part of Ch 5 of the Compensation Act , it applies "to and in respect of the assessment of damages by a claims assessor": s 122(3). In addition to provisions in Ch 5, the claims assessor is required to make an assessment of the amount of damages "that a court would be likely to award": s 94(1)(b). Accordingly, and subject to statutory variation, the assessor is required to apply general law principles regarding quantification of damages. [22]

The provisions of the Civil Liability Act do not preclude the award of a "buffer" in appropriate circumstances (see Penrith City Council v Parks [2004] NSWCA 201 at [3] - [5], [58]; Stretenovic v Reed [2009] NSWCA 280 at [81]). As Mason P noted in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432: "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2]). [46]

The proper understanding of this provision and its counterpart in the Civil Liability Act 2002 (NSW), namely s 13, has been addressed by this Court on a number of occasions: see MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) Aust Torts Rep ¶81-744; 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405; Leichhardt Municipal Council v Serratore [2005] NSWCA 406; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432; Tran v Younis [2006] NSWCA 188; Kallouf v Middis [2008] NSWCA 61; Roads and Traffic Authority v Chandler [2008] NSWCA 64; (2008) Aust Torts Rep ¶81-945 Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728; Vosebe Pty Ltd v Bakavgas [2009] NSWCA 117 and State of New South Wales v Nominal Defendant [2009] NSWCA 225. After initial concern expressed in Ardizzone that the section might not be capable of application in accordance with its express terms, these authorities accept two propositions, namely that the section can apply in its terms, but that it does not cover all aspects of the exercise required to be undertaken in assessing future economic loss. [22]

It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely:
(a) the claimant’s most likely future circumstances but for the injury, and
(b) the assumptions about future earning capacity (and other events) which will form the basis of calculation. [23]

It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to “accord with” the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further. [24]

Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in sub-s (1) and that required by sub-s (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with sub-s (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by sub-s (2). [25]

Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in sub-ss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court’s reasons, pursuant to sub-s (3), is largely immaterial: they should in any event be stated in accordance with general law principles. [26]

One issue which has given rise to debate in the case-law is whether the court, in making an assessment of future economic loss, is entitled to take into account the possibility of departure from the baseline calculation derived from the claimant’s most likely future circumstances. For example, the most likely future circumstances might be that a claimant would remain in his or her pre-accident employment but would achieve two levels of promotion over a working life. In accordance with general law principles, in assessing the loss caused by the accident, the court would be entitled to take into account the possibility that a further promotion might have been achieved (with resultant higher earnings) and the possibility that no promotion would have been achieved. The approach under the general law is commonly identified by reference to the principles stated in Norris v Blake (No 2) (1997) 41 NSWLR 49; a different (and more typical) factual example, which arose under the statutory regime, may be seen in Nominal Defendant v Lane. Although s 126(1) requires that the assumptions underlying the baseline calculation should “accord with” the claimant’s most likely future circumstances but for the injury, it does not expressly preclude taking into account possible variations from those circumstances. Further, the form of the section is inconsistent with any clear implication excluding other considerations. The facts and arguments in this appeal do not require the resolution of these issues. [27]

A further significant uncertainty may arise with respect to a pre-injury susceptibility. Such matters have conventionally been treated in a different way to the general vicissitudes of life: see, eg, Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 and cf Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. The notice of appeal in the present matter originally contained a ground asserting that the trial judge had erred in finding that the appellant had a prior psychiatric or psychological condition. That ground was, however, not pressed and accordingly this issue does not arise. [28]

The legal challenge raised by the appellant concerns the assessment of post-injury conduct on the part of the appellant and the effectiveness of the proposed treatment. As explained above, this challenge is directed to a step in the assessment of future economic loss which is not covered by s 126 of the MAC Act. Each element involves an assessment of a future hypothetical event and, as the appellant correctly contends, should have been assessed in accordance with the general law principles as to possibilities, as stated in Malec v J C Hutton. [29]

Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). [80]

It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the Court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opioned that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future". [81]

As the primary judge acknowledged, the fact that the respondent was 14 years old at the time of trial made the task of assessing the diminution of his earning capacity very difficult. Clearly the comparative exercise referred to in the previous paragraph cannot be undertaken. However that does not mean that the plaintiff was entitled only to a nominal sum. The Court has to do its best to give the injured plaintiff sufficient recompense: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [72]) per Heydon JA. [82]

While I accept that his Honour was entitled to accept Professor Quadrio’s assessment (set out at [186(i)]) concerning the probability that the respondent’s “gloominess, lack of self-confidence and general wariness will most likely diminish his chances of success in the career world”, I am of the opinion that it is appropriate to recognise that likelihood having regard to the inherent uncertainties in what the future held for him in terms of earning capacity to reflect that finding in a buffer amount. [84]

Having regard to the fact that the respondent suffers no physical limitations on his ability to work, that it is probable his psychological conditions will be ameliorated by treatment and that, even to the extent some aspect of his work life might be limited by the matters to which Professor Quadrio referred that is not likely to be substantial, I am of the view that his future earning capacity will not be substantially diminished. [85]

His earning capacity had unquestionably been reduced and in the event that he cannot find suitable work in the auto glazing industry this reduction would be productive of financial loss.

Even though it was difficult to assess the extent of that loss, it was appropriate to award a buffer for this contingency (in this case $40,000 based on his pre-accident earning capacity).

Reiterated Hodgson JA’s remarks in Azdizzone that the nature of calculations for future economic damages under s 13 is unclear. Particularly the effect of s 13 on general law damages still remains unclear.

Although the trial judge had omitted any direct reference to the wording of s 13, his calculation and reasons were sufficient as he had:

- made a finding of future economic incapacity based on the most likely future circumstances: s 13(1)

- made adjustments for vicissitudes: s 13(2)

- stated his assumptions for the above 2, although not expressly: s 13 (3)

It is open to assess future economic loss by way of a buffer. In such cases the deduction for vicissitudes will be nil, and failure to state this as required by s 13(3) is immaterial. [33]

Given the circumstances the buffer award was not manifestly excessive and Her Honour’s reasons were adequate. [34]

Even if section 13 is not complied with by a trial judge, “if the result could have been reached, failure to comply with it should not bring a new trial or a reassessment” (adopting that statement from Giles JA said in The Nominal Defendant v Lane [2004] NSWCA 405 at 67 referring to s 126 of the Motor Accidents Compensation Act 1999, but which is in the same terms as s 13). [143]

Accepting earlier authority to the effect that in appropriate circumstances, a buffer is available under section 13, one was awarded on appeal, rather than being the subject of an order for the court below. The assessment of this, and future economic loss was at [27] – [34].

Nothing restricts the adjustment in section 126(2) (equivalent to section 13 Civil Liability Act) to a downward adjustment. The "words 'possibility that the events … might have occurred' encompass percentage adjustments upwards [sic] or downwards depending on the facts.” [65]

It was open to use a buffer when assessing damages for future economic loss [62]

A buffer may be used where the impact of an injury upon economic being from exercising earning capacity after injury is difficult to determine… “Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil.” [5]

In determining the award for future economic loss the court must follow three steps:

1. Determine the most likely future circumstances of a claimant but for the injury

2. Make any adjustment to any award by referenced to the percentage possibility that the events might have occurred but for the injury

3. The assumption and percentage must be stated. [51]

It is section 13(2) that requires an adjustment to be made. [56]

13(1) only requires an estimate of likely future circumstances and identification of the pre injury percentage possibility of those events occurring but the compensation awarded is not otherwise confined. This means that a modest award to account for the fact that the plaintiff might be further disadvantaged by the injury in the future is not precluded. [58]

The assumptions referred to in s13(1) and s13(3) are views about what the future economic situation of the plaintiff would be, but for the injury, with which the court compares the future economic situation of the plaintiff resulting from the injury. [5]

The provisions of s13(2) and s13(3) concerning a percentage are meant to be a statutory implementation of the practice of making a deduction in relation to future economic loss for “vicissitudes.” [6]

The events in s13(2) must be those corresponding to the future economic situation, as it is understood to be resulting from the injury, not those corresponding to his future situation but for the injury. [12]

The usual 15% allowance is on the basis that this is a reasonable discount having regard to a myriad of possibilities each of which could have meant that the plaintiff fell short of this situation to various degrees. [13]

There is doubt as to whether, if positive vicissitudes outweighed negative ones, that an upward adjust could be made under section 13(2) [14] and upon whether a buffer could be used. [15]

Section 13 does not provide that if the assumptions referred to cannot be established in a clear and concrete manner, there cannot be an award of damages for future economic loss. [55]

Once the duration requirement is satisfied, a claimant can recover damages for earlier periods during which gratuitous services were provided for at least six hours per week. [112]

Nothing in the language of s 15(3)(b) suggests that damages can be awarded for past periods of less than six consecutive months, once that duration requirement has been met. [45]

The effect of s 15(3)(a) of the Civil Liability Act 2002 is that damages can only be awarded for gratuitous attendant care services if those services have been provided in the past or will be provided in the future for at least 6 hours per week.[1]

My tentative view is that the duration requirement, although not a continuing requirement, can only be satisfied if the minimum rate requirement is also satisfied for the qualifying 6 month period. [8]

The effect of the dictum in Pacific Steel Constructions is that damages cannot be awarded unless both conditions are satisfied with respect to the period in question, “concurrently”. [35] - [36]

I am inclined to think that, as the requirements in s 15(3)(a) and s 15(3)(b) of the CL Act are independent, s 15(3)(b) is satisfied if gratuitous care services are provided to a claimant for a period of six consecutive months, even if the services are provided for fewer than six hours per week during that period. [95] & [106]

In order to be able to claim damages for gratuitous attendant care services pursuant to s 15 of the Civil Liability Act it was necessary that the appellant establish that the need for those services arose solely because of the injury to which the damages relate, that the services would not have been provided to the appellant but for the injury and, further, that those services were to be provided for at least six hours per week for a period of least six consecutive months. [121]

There was some debate in the course of argument about whether the requirement in s 15(2)(b) that the need for the damages for gratuitous attendant care should have arisen “solely because of the injury to which the damages relate” was satisfied having regard to the appellant’s pre-existing condition. However the parties accepted the proposition stated in Woolworths Ltd v Lawlor [2004] NSWCA 209 (at [28] – [30]) (per Beazley JA (Hodgson and Tobias JJA agreeing) that the Court could award such damages even where the need for the award only arose because of an increase in the plaintiff’s need for services occasioned by the injury. Woolworths was confirmed in Angel v Hawkesbury City Council [2008] NSWCA 130 (at [130]) per Beazley and Tobias JJA (Spigelman CJ, Giles and Campbell JJA agreeing), see also Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139 (at [22]) (per Bell JA, Hodgson and Tobias JJA agreeing). What the plaintiff must establish in those circumstances is that as a result of either injuries and disabilities caused by the defendant’s negligence, a need for gratuitous attendant care services for an additional six hours per week for at least six consecutive months arose: Woolworths (at [28] – [29]). [122]

The appellant advanced an argument that the exercise of assessing her need for gratuitous care should be approached on the premise that if the aggravation had not occurred her need for such assistance would have declined as the condition of her shoulders improved. Accordingly, she contended “most” of the hours Dr Conrad said she needed for such care after the aggravation should be attributed to the respondents’ negligence. Dr Conrad’s June 2004 report was prepared at a time when the appellant had had a good result from the surgery the previous year on her right shoulder, yet it is clear that even with a good result from that procedure she still needed about six to eight hours of domestic assistance a week. After the aggravation, Dr Conrad’s evidence to which I earlier referred, established, at best, a requirement for an additional two hours a week. In my view the appellant did not establish that more than that two hours was attributable to the aggravation caused by the respondents. [123]

Accordingly the appellant did not establish that as a result of the aggravation caused by the assessment, she needed an additional six hours gratuitous attendant care services per week. Dr Conrad’s reports were, as the respondents submitted, objective evidence of the appellant’s need. The primary judge preferred that evidence to the appellant’s subjective account. The appellant did not identify any error on his Honour’s part in this respect. [124]

In my view this ground of appeal should be rejected. [125]

At trial, Mr Barahona claimed an award of damages for care and assistance based on a need for 13 hours per week up to the date of trial and 7 hours per week in the future. Her Honour refused the claim on the basis that whilst in the immediate post-injury period Mr Barahona required assistance at home, and there was evidence that supported a reasonable need for a small amount for his ongoing care and assistance, she considered that the evidence was not sufficient to satisfy the thresholds provided for in the Civil Liability Act 2002 (NSW), s 15. [157]

Section 15 was amended in 2008. A preliminary question arises as to whether s 15 in its form prior to amendment applies, or whether the amended provision applies…[158]

The construction of the section in those terms was the subject of determination by this Court in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. The Court held that once either the severity or duration threshold specified in s 15(3) was passed, a plaintiff had satisfied the precondition to recovery once and for all. [160]

Following that decision, s 15(3) was amended…[161]

Section 15(3) as amended by the 2008 amending Act had the effect of reinstating this Court’s decision in Geaghan v D’Aubert [2002] NSWCA 260; 36 MVR 542. The effect of Geaghan is that for a plaintiff to obtain damages for future attendant care services under subs (3), both limbs of the provision have to be satisfied. That is, the services have to had been provided for at least 6 hours per week and 6 months concurrently, before damages are recoverable with respect to the period in question. [163]

Although there would appear to be substance in this argument, that result is precluded by the decisions of this Court in Cai v Zheng [2009] NSWCA 13 and Coles Supermarkets Australia Pty Limited v Tormey [2009] NSWCA 135. [166]

It follows that it is necessary to consider this claim on the basis that s 15(3) in its amended form applies. [167]

The existence of a precondition does not preclude an award of damages under s 15(2); Woolworths v Lawlor [2004] NSWCA 209 at [28-29]. [126] – [131]

The primary judge’s failure to expressly find threshold requirements of s 15 (3) satisfied is not an error.

If the plaintiff had a residual incapacity, the primary judge’s failure to expressly state the amounts needed for additional attendant care services is not an appealable error.

Failure to adduce expert medical evidence to show the additional need for gratuitous attendant care services was not fatal to the plaintiff’s claim for damages under s 15 (3). Trial judge had accepted the plaintiff’s evidence and diary notes made by his wife with some adjustments.

The literal and plain meaning of section 15(3) is that the preclusion to recovery applies only if both the intensity and duration limbs are satisfied concurrently.

The word “and” is normally conjunctive.

The provision does not speak in terms of no damages being awardable for any period in which the six hours/six months criteria are not met as the focus is on the services being provided.

A literal reading of s 15 (3) is further supported when the provision is juxtaposed with s .

Section 15 (3) seeks to restrict the common law (Griffiths v Kerkemeyer damages) but it is an established principle of statutory interpretation that common law rights are not to be abrogated in the absence of clear statutory language: Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210 per Neave JA.

Distinguished Geaghan on a further basis that Section 15 does not have a similar object clause such as section 72(1)(b) of the MAA.

Section 15 (3) applies to an “all-or-nothing” situation thus fragmentation of a claim is impermissible.

Once a plaintiff satisfies either of the threshold requirements of s 15(3) (6 hours per week OR 6 months) all future gratuitous care services can be claimed.

Section 15 (3) was amended by the Civil Liability Amendement Bill 2008, which reverses the above decision and imposes a dual threshold requirement of time and intensity that a plaintiff must prove before claiming damages for gratuitous care.

Fundamental common law rights can only be overridden by clear and unambiguous language in a statute. However, fundamental rights must be distinguished from ordinary rights. In relation to the latter, the principle has minimal weight.

The principle certainly has no application to section 15(3). [2]-[5] [7]-[11] [220] [235].

In terms of section 15, the Court is not permitted to resort to the use of extrinsic material under section 34(1)(b) of the Interpretation Act 1987 because the provision is not ambiguous. [1] [157] [191] [192].

The task of the court is to interpret what Parliament meant by the words as they are expressed in the legislation, not to determine what Parliament intended to say. [16] [159]-[160] [183]-[185][191] [192]

The meaning of section 15(3) is ambiguous as to the manner in which it operates. This is due in part to the linguistic and structural characteristics of the provision. As there is ambiguity, section 34(1) of the Interpretation Act 1987 is engaged to permit the use of extrinsic material. [195]-[195] [208]

It was not appropriate to overrule Geaghan as the Parliament enacted subsequent legislation, based on the approach in Geaghan, so that overruling of Geaghan would cause a statutory anomaly ; and further the decision in Geaghan rather than being “clearly wrong” was correct [250]-[251] [254]-[257]

The same construction can be used for s15(3) as is used for s 72(2) of the Motor Accidents Act 1988, given the purpose of limiting damages. [167] This provides a construction “that no compensation is recoverable if the services are provided for less than six hours per week and no compensation is recoverable if the services are provided for less than six months.” [167]

In a case where there had been a pre-existing disability requiring gratuitous services, where the injury has increased that need, the increased need is “solely” because of the injury to which damages relate. The additional gratuitous services can be the subject of an award under section 15. [29]

Where there is no evidence that the pre existing condition would have brought a plaintiff to require services in the future, the services can be said to be “solely” because of the injury. [30]

Given the nature of the respondent's injuries, an assessment of the respondent's injury as being 33% of a most serious case was not outside an appropriate discretionary range. [29]

In light of the impact that the respondent's injuries are likely to have on her present occupation and her future working life, there was no error in awarding a small buffer by way of damages for future economic loss nor in the amount awarded by his Honour. [31]

The Plaintiff sued to recover damages for the injuries resulting in quadriplegia that he sustained in a motorcycle accident, which occurred as a result of the evasive action he was forced to take due to the negligent driving of an unknown vehicle. After finding the Nominal Defendant liable, Cooper AJ assessed the various heads of damage. The Plaintiff contended that superannuation loss should be calculated by reference to gross income, while the Nominal Defendant contended that it should be by reference to net income.

The superannuation loss was to be calculated by reference to net income. [234] This was because “the amount which the plaintiff would have received at the end of his working life for superannuation had he not been injured would have depended upon a number of imponderables such as the rate of applicable income tax, the fees charged by the superannuation fund, and the earnings derived by the superannuation fund from the monies contributed.”

“Gratuitous services” should be given its ordinary meaning in section 15B, and not a restricted or narrow meaning. [59]

One should not limit the definition of “gratuitous services” in section 15B by reference to subsection 15(1), as the wording of 15(1) does not transpose into the definition of “domestic services” in s 15B, and these provisions deal with different subject-matter. [52] to [58]

In relation to s 15B(1), ““Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain…” -(Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138).

If A has a legal obligation to support B, this does not mean that B can never be the dependant of anyone else [35] and a legal relationship is only but one factor in the enquiry. Their chosen mode of life and absence of financial support are both irrelevant considerations and a finding could be supported given the period of time, frequency and extensive nature of care.

In Harrison v Melhem the court held that where the wording of a particular statutory provision was clear in meaning, its clear meaning could not be cut down by reason of a Minister having stated in Parliament that the provision would operate in a fashion different to its clear meaning.

Though the ratio decidendi in Harrison v Melhem may not apply where a section is ambiguous the case contains a valuable discussion of the circumstances in which statements in Parliament could possibly elucidate the meaning of the legislation that Parliament has enacted.

Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material “is capable of assisting in the ascertainment of the meaning of the provision”. The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision.

Applying the test set by section 34 it was not appropriate to attach any special weight to the Second Reading Speech or use it construing s15B (11)(b) [73-82]

s15B (11)(b) reduces damages under s15B insofar that the services were not gratuitous or domestic, provided to non-dependants, provided to dependants unreasonably or on a basis other than a mental or physical incapacity and the court must take these matters into account.

The focus is not on the recipient but rather on the ‘particular services that the claimant could once provide but can now no longer provide to eligible persons’ [due to the defendant’s tort].

s15B (11)(b)’s utility lies in reducing damages to reflect that amount by which ineligible persons also benefited from the provision of gratuitous domestic services. Therefore it doesn’t require a reduction on the basis that the claimant in providing gratuitous childcare allowed the respondent and her husband to obtain full time work. The grandchildren remained the focus of the enquiry.

s15B (11)(b) doesn’t require a reduction for the performance of incidental tasks (such as household chores) as these were not itself a part of the gratuitous domestic services (in this case, childcare)

Section 15C is ambiguous and obscure in its reading. Bearing in mind legislative history of the provision and the Ipp Report (pars 13.128-13.133) the “purpose of section 15C … is to simplify calculations and not to impose an arbitrary cap on the amount allowed by way of superannuation entitlements” which a literal reading might otherwise do.
The statutory minimum of 9% should apply if the value of lost earning capacity is the plaintiff’s gross ordinary time earnings.
However if net earnings are the basis for calculation (as in this case), then 11% should apply.

There is no ambiguity in section 15C upon its literal reading.
Superannuation entitlements payable for deprivation or impairment of earning capacity must be based on net earnings and accordingly superannuation losses must be calculated by applying the statutory minimum of 9% to net earnings.

The challenge to the primary judge’s conclusion on non-economic loss must be determined in accordance with the principles explained in Wynn Tresidder Management v Barkho [2009] NSWCA 149 (per McColl JA, Tobias and Young JJA agreeing):
.
“110 The approach taken when an appellate court is asked to review a primary judge’s conclusion as to the severity of a plaintiff’s non-economic loss by reference to a ‘most extreme case’ was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows:
..
‘49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not ‘a most extreme case’ has been said to be not ‘readily … susceptible of appellate review’ as ‘its resolution … involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment’: Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] – [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).’

111 A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264” [101]

I have set out the primary judge’s critical findings as to the effect of the aggravation caused by the assessment. Those findings are best set in context by referring to the underlying medical evidence which it is apparent the primary judge accepted. While his Honour referred to some of this evidence while dealing with the issue of liability, he did not re-visit it when he came to the issue of damages. [102]

In my view, the primary judge’s assessment that the appellant’s non-economic loss was 20 per cent of a most extreme case was manifestly erroneous. The evidence to which I have referred demonstrated the sharp contrast between the improvements the appellant was experiencing in her shoulders prior to the assessment. Her right shoulder appeared to be giving her little significant problem, and the recent operation in her left shoulder appeared to have been successful. The aggravation caused by the assessment dramatically altered that position leaving the appellant with pain which would remain with her for the rest of her life. [115]

When one has regard to the medical evidence and the primary judge’s findings about the appellant’s continuing pain and disabilities, it is apparent that his exercise of his discretion to assess the severity of the appellant’s non-economic loss has been unsound in the sense to which House, Cranssen and Wong refer. [116]

In my view, Professor Quadrio’s report, while recognising that the respondent was suffering from PTSD and an Adjustment Disorder and personality change, also contemplated that those conditions may not be permanent and, indeed, that he may have either recover, or his condition may be ameliorated, in the event he undertook psychological treatment. Although his Honour said he accepted Professor Quadrio’s opinion, his reasons did not, with respect, reflect it…[69]

There was no evidence, in my view, from which the primary judge could draw the conclusion, that the prospects of success of psychological treatment were poor…[70]

In Wynn Tresidder Management v Barkho [2009] NSWCA 149 (at [110] – [111]), I said (with Tobias and Young JJA’s agreement):

“The approach taken when an appellate court is asked to review a primary judge’s conclusion as to the severity of a plaintiff’s non-economic loss by reference to a “most extreme case” was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49])…[74]

In my view the errors I have identified in the primary judge’s reasons were of such substance that the conclusion reached by his Honour concerning the s 16 most extreme case issue and future economic loss were manifestly erroneous. It is open to this Court to accede to the appellants’ application to re-assess those awards.[75]

“The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not ‘a most extreme case’ has been said to be not ‘readily … susceptible of appellate review’ as ‘its resolution … involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment’: Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] – [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).”[110]

The task of assessing “a plaintiff’s non-economic loss for the purposes of s 16 is neither scientific nor normative… The assessment of non-economic loss is an evaluative process in respect of which minds may reasonably differ.” [62]

In making the assessment it is not necessary to undertake “a formulaic process of iterating where, having regard to “serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning” the respondent’s case sat.” [61]

In making the assessment it is not necessary to give “precise reasons” why a particular figure is chosen as the proportion a plaintiff’s non-economic loss bears to “a most extreme case”. [63]

“Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case.” [63]
“The statute does not require the comparison to be made against the most extreme case imaginable.” [65]
The comparison in this case was to a case of quadriplegia as a result of a fall. [66]

A comparison could be drawn with cases on s 79A of the Motor Accidents Act 1988. [38]
The comparison of a injury in a Motor Accidents Act case, with the injury in the present case led to the conclusion that the trial judge’s award was excessive. [40 – 41]
The percentage was set at 20%. [43]

Due to the Savings and Transitional provisions contained in Part 2, cl 2 of the Civil Liability Act, Part 2 of the Act could not apply to an award of damages in proceedings commenced in a court before the commencement of the Act.

With reference to the District Court Rules as at the time the second and third defendants were joined, it followed that proceedings against those defendants commenced at the time of the amendment by which they were joined.

On one view, s 19(3) gave rise to an anomaly where the damages recoverable by the plaintiff from the third party were higher than that recovered from the defendant under the Act.

The exclusion in the Act, at s 21, against the payment of exemplary or punitive damages being awarded in an action for personal injury damages applies to claims based on negligence only.

… in Part 2A, injury is equated with “personal injury” and is said to include impairment of a person’s physical or mental condition. The concept of “personal injury” is not defined in Part 2A, but where it is defined, as in s 5, for the purposes of Part 1A, it is in identical terms to the definition “injury” in s 26A (apart from, again, the presently insignificant addition of pre-natal injury). [22]

The ordinary meanings given to the word “injury” by the Oxford English Dictionary (Online) include:
“1. Wrongful action or treatment; violation or infringement of another’s rights; suffering or mischief wilfully and unjustly inflicted.
…
3.a. Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage.”
Although “injury” may refer either to the action of (or treatment inflicted by) the aggressor, or the consequence suffered by the victim, it is apparent that in the Civil Liability Act, the term is used to refer to the consequence and not the cause. Significantly, however, it is clear that the ordinary use of the word extends to a broad range of consequences, including hurt, loss, harm, detriment and damage. In its ordinary meaning, the phrase ‘personal injury’ would cover all of those adverse consequences when suffered (as most of them must be) by a person. [23]

Sully J correctly held that the respondent was entitled to a declaration Part 2A Div 6 did not apply to him on the basis that:

1) “…pursuant to s 3B of the Civil Liability Act as then in force, the Act had no application in respect of civil liability “in respect of an intentional act that is done with intent to cause injury or death”. Although the claim against the State was in negligence” there was “civil liability “in respect of” the deliberate intentional acts of the assailants and thus was not subject to the provisions of the Civil Liability Act.”[48]

2) Part 2A of the Act only applied to a person who was an inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 at the time of the injury (ss 26A and 26B). The respondent was not an “offender in custody” as defined by s 26A because at the time of the injury the 1999 Act was not in force. [49][79]

The operation of Part 2A (and thus s 26C) is addressed in s 26B… [25]

There are a number of relevant aspects of this provision. First, the reference to a “protected defendant” is a reference to the Crown, within the meaning of the Crown Proceedings Act 1988 (NSW) and thus the State of New South Wales: s 26A. It also includes a government department (although a department would not usually be a defendant) and “members of staff of a government department”. Secondly, s 26B indicates that s 26C is limited in its operation to “personal injury damages”. That phrase is in turn defined in s 26A to mean “damages that relate to the death of or injury to a person”. On one approach, a significant issue in the case is the scope of the words “relate to” as the form of identified connection between the damages and the injury. [26]

The present case does not involve an injury caused by negligence and hence the first limb of the circumstances referred to in the concluding words of sub-s 26B(1) is not applicable. However, the second limb may be applicable if any injury suffered by the plaintiff was caused by an intentional tort “of another person” for whose tort the protected defendant is vicariously liable. The operation of this limb is not entirely beyond doubt. Both the State and the allegedly offending officers fall within the definition of “protected defendant”. Despite the use of the word “defendant”, the statutory concept does not expressly identify a party to the proceedings. If the protection applied generally in respect of all protected defendants, it might be arguable that the phrase “another person” was not intended to identify either the Crown or a public servant, but rather a third party for whose tort the State may be vicariously liable. However, because the section is dealing with an award of damages “against” a protected defendant, there seems to be no reason why the tort for whom the party sued is vicariously liable may not itself be the tort of a protected defendant. [27]

Finally, reading the relevant parts of the definitions into s 26B the following is achieved:

This Part applies to and in respect of an award of damages, that relate to impairment of a person’s mental condition, against the State, in respect of impairment of a person’s mental condition, being an impairment caused by the tort of [a police officer or public servant].

Thus, somewhat awkwardly, the damages must on the one hand “relate to” an impairment and, on the other, be “in respect of” that impairment. Whether anything turns on the different terminology is unclear.[28]

… The key words, relevantly for present purposes, found in s 26C are “damages” and “injury”. As will be seen, each of these words is the subject of definition. However, before turning to those definitions, it should be noted that the connection between the two concepts in s 26C is implicit, rather than express. In other words, there is an assumption that there be an injury in respect of which damages are payable...[16]

…with the exception of the words in parenthesis in s 26C, the language of the Civil Liability Act is not restricted to damages “for” or “assessed by reference to” the loss suffered by the injured party. Rather, the language of connection is “in respect of” or that “relate to” the injury in question. Whilst Part 2A may not apply in respect of a tort where there has been no injury at all, assuming that the term injury extends beyond a recognised psychiatric illness, it is, in practical terms, difficult to imagine a case in which exemplary damages would be awarded absent any personal injury.[52]

There are, however, particular factors which militate against the conclusion that exemplary damages are covered by s 26C. They derive from the combined operation of ss 21 and 26C, when viewed in the light of the history of amendments to the Civil Liability Act. Thus, the 2004 Amending Act introduced s 26C but applied only to injuries caused by negligence. At that time, s 21 operated so as to preclude any claim for aggravated damages or exemplary damages in an action for an award of personal injury damages where the injury was caused by negligence. Accordingly, the drafter of s 26C would not have envisaged any need to address the question of aggravated or exemplary damages. That in turn explains the words in parenthesis in s 26C, referring to damages “whether for economic or non-economic loss”. That language was apt to deal with claims for ordinary compensatory damages in negligence cases, which were all that were available. [53]

When Part 2A was extended to cover intentional torts, it operated, in that respect, alone and without the complementary assistance of Part 2. In such cases, s 21 had no operation. (Even if Part 2 had had operation, s 21 was limited to negligence cases.) However, no amendment was made to s 26C. Because aggravated damages constitute a form of compensation for non-economic loss, the language of s 26C, without amendment, was apt to include such damages within its preclusive operation. However, its language, including the words in parenthesis, is not apt to refer to exemplary damages. Its original operation was not intended to cover exemplary damages. Accordingly, without amendment its language remains inapt for that purpose. [54]

There remains a question as to whether, in the language adopted by the State, awards of exemplary damages were entirely “parasitic”, in the sense that they could not stand alone. There may be a sense in which that is true under the general law, though whether as a practical effect, rather than a legal requirement, might require consideration. The objection is, in any event, one which cannot affect a statutory reform. Subject to constitutional constraints, the Parliament is entitled to vary, by way of limitation or expansion, the heads of damages available in respect of torts, just as it may vary the elements and existence of causes of action. If it has done so, so as to leave available only one head of damages, that result is effective. [55]

In substance, the argument must be that such a result is manifestly unlikely and bespeaks some error in the process of statutory construction which reached that conclusion. However, the premise is not necessarily sound. The purpose of s 26C is to preclude recovery of damages where the impairment suffered by the offender is relatively minor. The Parliament may well not have been prepared to exclude liability for exemplary damages, even in cases of relatively minor physical or mental impairment, where the conduct of its officers, for which it accepts vicarious liability, demonstrates egregious disregard of the civil rights of its citizens. Whether that be so or not, it is a decision to be made by the Parliament and not by the courts. There was nothing in the second reading speech which suggested that the Parliament had addressed the question, the oversight, if such it be, being explained by non-advertence to the legislative history. [56]

In these circumstances, I would conclude that s 26C operates with respect to aggravated damages, but not exemplary damages… [57]

The definition of “offender damages” in s 26K(1) limits the application of the Part to cases of injuries received while a person falls within the categories first introduced by the 1999 Act . [8] [9]

The term “personal injury damages” is defined in Part 2 for the purposes of Part 2A. Part 2 does not apply to awards in proceedings commenced before 20 March 2002 (Sch 1, Part 2, cl 2). As per Part 2A, the respondent’s damages were therefore not “personal injury damages” nor “offender damages” as defined in s 26K(1). [82].

It would not be right... to read s 30, or s 30(2)(a) in particular, as assuming that all cases of death, injury or being put in peril are events that begin and end in an instant, or even that they are events that necessarily occupy only a time that is measured in minutes. No doubt there are such cases. But there are cases where death, or injury, or being put in peril takes place over an extended period. This was such a case, at least in so far as reference is made to victims being injured or put in peril.[44]

No issue arises by reason of the fact that the claim is one for pure mental harm and not for physical injury. A child’s father falls within the definition of a "close member of the family" of a victim under s 30 of the Act. The Council accepted that Mr Ferreira suffered a recognised psychiatric illness and that a person of normal fortitude might in the circumstances of the case suffer such an illness (s 32(1)). [6]

Part 4 does not apply if the liability arose before 26 July 2004 and therefore cannot be pleaded as a defence to a liability arising before that date.[19] – [23]

Section 35(1)(b) of the Act provides that in an action for tort for damage to property where more than one person contributes to the damage a court must not give judgment against a defendant for more than his / her proportionate amount of the damage. [87] – [88]

This was the first case in which the Court was required to deal at case management level with the claims of a party to a direction that the identity of the concurrent putative wrongdoer be communicated.[16] – [21] The Court was required to consider the interaction of the Civil Liability Act proportionate liability provisions and s 61 of the Civil Procedure Act 2005 NSW [28] – [30].
It was permissible to grant the plaintiff leave to administer the interrogatories in the present situation as the procedure caters for efficiency in terms of the disposal of the business of the court.

The effect of section 42(a) in the present case is that what the RTA can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the RTA for the purpose of carrying out the care, control and management of freeways and any other roads that are under its care, control and management. Its budget for that purpose is so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget. [395]

When section 42(b) uses the expression “those resources” it is referring back to section 42(a). What section 42(b) requires not to be challenged, in the present case, is the “general allocation” by the RTA of those resources that are reasonably available to the RTA for the purpose of the care control and management of freeways and other roads under its care control and management. [396]

There is an important difference in prepositions between section 42(a) and section 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while section 42(b) is concerned with the allocation of those resources by the authority. In other words, section 42(b) starts from the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources. [397]

Effect must be given to the word “general” in section 42(b). It seems to be drawing a distinction between the general and the specific. It will be a matter that needs to be decided concerning any particular set of resources that is allocated to a public authority, whether a particular decision about allocation of those resources by the authority is regarded as a decision about the general allocation of resources, or a decision about the specific allocation of resources. [398]

The force of the words “is not open to challenge” in section 42(b) is to prohibit a particular manner of contending that a public or other authority is under a duty of care, or has breached a duty of care. Thus, in a case like the present, which concerns an allegation of breach of duty of care, application of section 42(b) needs to be carried out bearing in mind each particular manner in which it is alleged a duty of care has been breached. [399]

In State of New South Wales v Ball [2007] NSWCA 71; (2007) 69 NSWLR 463 at 466-7 [13]-[18], Ipp JA (with whom McColl JA and Young CJ in Eq agreed) was able to decide, on the strength of the particulars in a statement of claim, that at least some aspects of the claim a plaintiff wished to make involved a challenge to the general allocation of resources affecting the plaintiff’s work as a police officer. In consequence, his Honour struck out those allegations from the statement of claim. Sometimes it might happen that the particulars are narrowly drafted, or that a defendant chooses not to make such a strike out application, but once the case is heard it is apparent that the substance of a complaint of negligence that plaintiff is making involves a challenge to the general allocation of resources by a public authority. [400]

In the present case, if one allegation had been that the RTA misapplied well-established principles and made careless factual errors in the way it prioritised overpasses for screening, and that a principled and careful prioritisation process would have put the Glenlee Bridge close enough to the top of the priority list to have been screened before 23 August 1998 with the money that the RTA actually chose to spend on bridge screening, the challenge that was being made would have been to the allocation of resources that the RTA had actually allocated to bridge screening. I do not think that such a challenge would be one to the general allocation of the resources reasonably available to the RTA for the purpose of exercising its functions. [401]

It is elementary that deciding any allegation of breach of duty of care involves considering what is the reasonable response to the risk. In Romeo, the injury to the plaintiff could have been prevented if the authority in question had adopted the very cheap expedient of placing a couple of star pickets on either side of the track that the plaintiff went along before falling over the cliff, and connecting those star pickets with a few pieces of wire. However the judgments in the High Court made clear that approaching the matter in that way was not the relevant way, because the risk in question was one of a person falling over a cliff anywhere along the substantial length of coastline that the authority controlled. What needed to be considered was the reasonable response to that risk. [402]

Similarly, in the present case, if the allegation had been that the RTA did not take seriously enough the risk of objects being dropped from overpasses, and should have spent more money on remedying that risk than on, for instance, providing warning lights and protective barriers at railway level crossings, the challenge would be to the allocation by the RTA of money to screening overpasses as opposed to other road safety measures. One would need to decide whether a challenge of that type was to the “general allocation” by the RTA of the resources reasonably available to it for the purposes of exercising its functions. [403]

Concerning allegations that are permissible in accordance with section 42(b), whether such an allegation is accepted is a matter of application of the common law plus principles of the Civil Liability Act other than section 42(b) and any other relevant legislation. [404]

In light of the conclusion I have come to about breach of duty under the general law, it is not necessary to answer that question. It can be said, however, that it could in principle be wrong to apply section 42(b) by saying that all that is being challenged is the failure to do the comparatively small amount of work that would have been needed to prevent the particular injury that the particular plaintiff suffered. To approach the matter in this way pays insufficient attention to the detail of the argument that the plaintiff put as to the particular ways in which the defendant has failed to exercise reasonable care. It is in principle quite possible for one way in which it is alleged a public or other authority has failed to exercise reasonable care, resulting in a particular plaintiff being injured, to involve alleging that the taking of reasonable care would have required the authority to make a different general allocation of resources than that which it in fact made, while another way of alleging that the public or other authority has failed to exercise reasonable care, resulting in the same injury, does not involve alleging that the taking of reasonable care would have required the authority to make a different general allocation of resources to that which it in fact made. [405]

Section 42 is not an exclusion clause, but a clause that specifies the principles that must be applied in determining questions of both duty and breach. [147]

TJ erred by failing to analyse the evidence on budget allocations, state of assets and the predicted cost of bringing drainage assets to a proper condition by reference to subsections 42 (a) - (d). [152-3]

Section 45 is fundamental in determining the council’s liability as the alleged failure to maintain a culvert drain was a “road work” within the meaning prescribed by the Roads Act 1993. [181-2]

However there was no liability as there was no evidence of actual knowledge within the Council.

The current civil liability law in NSW, and s 3B(1)(f) itself, can produce anomalies. In this context it was impossible to arrive at the contextual purpose / construction advanced by the respondent, and a linguistic construction must be applied.[9] – [11].

The respondent’s argument was not saved by applying a specific reading to the allocation of resources by the State to the Agency. It was clear that the allocation of resources by the State was an inappropriate general allocation within the authority such that the CPEA was under-resourced. [12] – [18].

The State was immune under s 42 from claims arising from a government authority’s general allocation of resources.

The stronger reason for the Council not being liable in this case was that it was not shown that the Council had done anything that no Council could consider to be a reasonable exercise of its functions or powers, within the meaning of ss 43 and 43A of the Civil Liability Act. [43]

For the purpose of s 43 and s 43A of the Act, the commencement of proceedings as far as concerns a cross-defendant is the date that the cross-defendant is joined to the original proceedings.

No council could reasonably have considered the stairwell safe for approval, and thus the Council’s actions were not a reasonable exercise of its functions for the purpose of ss 43 and 43A of the Act.

In reaching these conclusions, as I stated at the outset of these reasons, the primary judge placed reliance on two recent decisions of this Court: Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW; Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd. Each of these decisions (especially the latter) has carefully examined s 43A and determined its scope. The arguments in the present case do not require me to re-examine the established jurisprudence emerging from these decisions. The following propositions, however, may be deemed appropriate for the determination of the issue in this appeal:

(1) The language of s 43A states a precondition for the existence of civil liability in the context with which it is concerned. Once it is found or assumed, by reference to the pre-existing common law of negligence, that a duty of care exists and there has been a failure to exercise reasonable care, s 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established.

(2) The origin and legislative history of s 43A make it plain that language modelled on that of Wednesbury unreasonableness was adopted from Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223) with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power.

(3) Notwithstanding the difficulty of transposing the concept of Wednesbury unreasonableness, derived as it is from administrative law, to the law of negligence, the concept now has statutory force in s 43 and s 43A and is to be applied to an authority's act or omission.

(4) The words "could properly consider" require a determination to be made from the perspective of the authority, but with an objective element. (As I see it, the objective element is particularly important in examining an allegation that the Council has negligently failed to exercise a power available to it.)

(5) Although the concept of Wednesbury unreasonableness has been expressed in varying terms, some extreme, some more moderate, its transposition into the law of civil liability requires that the unreasonableness must be at a high level. The language of s 43A ("could properly consider" with the restraint of "could" moderated by "properly") necessarily requires questions of degree and judgment.

The language of Wednesbury unreasonableness has statutory force in ss 43 and 43A, and is applied to an authority’s act or omission. The words “could properly consider” require a determination to be made from the perspective of the authority, but with an objective element. [79]

It would be preferable to avoid substituting for the language of s 43A the shorthand of whether the authority’s conduct was “irrational”. Irrationality is not necessarily an equivalent test in the private law of reasonable response to foreseeable risk of injury. [89]

In Stovin v Wise, Lord Hoffmann…

… said that any duty of care owed by a public authority in performing statutory duties “must be profoundly influenced by the statutory framework within which the acts complained of were done” (quoting from the speech of Lord Browne-Wilkinson in X-(Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739C)… [337]

There are some indications in later High Court authority that the Stovin v Wise approach to the relationship between public duties and duties of care concerning failure to exercise statutory powers is not accepted by at least some judges… [347] (authorities omitted – see judgment)

In the absence of authority binding me to do otherwise, I would take the view that principled development of the common law is not in accordance with the Stovin v Wise approach to this topic. [350]

Construction of Section 43A

Considered as a piece of text, the preferable reading seems to be that section 43A(3) imposes a more stringent standard for the existence of liability arising from exercise or failure to exercise a “special statutory power” than had applied, in at least some cases, before the enactment of section 43A. If an authority was subject to a duty to exercise care in exercising, or failing to exercise a special statutory power, the question of whether there had been a breach of that duty would have been determined, before the enactment of section 43A, by reference to the court’s own finding about whether there had been a failure to take reasonable care in exercising, or failing to exercise, that power. The preferable reading of section 43A(3), considered as text, is that it either replaces or supplements that standard by a standard that in its wording is more akin to the standard used in administrative law to decide whether an exercise of power is a valid exercise. [352]

It can confidently be said that the standard that section 43A imposes is not the same as that by which the reasonableness is assessed for the purposes of deciding whether there has been a breach of a particular duty of care. I say that because it is clear that by enacting section 43A the legislature was intending to alter what would otherwise be the law by which the negligence of public authorities was decided. [359]

Consideration of the legislative history of section 43A confirms the reading of its text, that what was intended was to implement the sort of test that had been adopted as part of the English common law in Stovin v Wise. However, section 43A(3) does not purport to give an exhaustive account of when it is that there can be negligence in exercising or failing to exercise a special statutory power. What it does, by adopting a form of words that there is no civil liability unless …, is to state a precondition for the existence of civil liability in the sort of circumstances to which it is addressed. One would need to look to the pre-existing common law of negligence to ascertain when it was that there was a duty of care, and whether there had been what the common law would regard as a failure to exercise reasonable care. Section 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established. [360]

There are some other questions about the construction and operation of s 43A that were raised by Allsop P in Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278 at [171]-[176] that are unnecessary to answer for present purposes. It is enough, for present purposes, that to permit section 43A to be raised now would involve the question of whether there had been a breach of duty being decided by a different standard to that which was applied at the trial. That is such a significant departure from the way the trial was conducted that it should not be permitted. [361]

The present situation differs from that in Jaber v Rockdale City Council [2008] NSWCA 98; [2008] Aust Torts Reports ¶81-952 (61,700) at [20]-[21], where Tobias JA (with whom Handley AJA and I agreed) held that a trial judge had been correct in permitting reliance upon certain provisions of the Civil Liability Act when the facts that triggered the operation of those provisions had been pleaded, though the specific statutory provisions themselves, identified by section number, had not. [362]

Would Section 43A have Helped RTA?

There are two separate reasons why, even if section 43A had been permitted to be raised by the RTA on the appeal, it would not have improved the RTA’s position. The first is because the erection of protective screens on the bridge would not have involved the exercise of any “special statutory power” by the RTA. The second is because the plaintiff’s allegation in the present case was not that the RTA’s liability was based on the exercise of, or failure to exercise, any special statutory power conferred on the authority. [363]

No “Special Statutory Power”

When asked in argument to identify the special statutory power involved in this case, Mr Maconachie pointed to section 120 Roads Act 1993…[365]

I do not accept that section 120 would be the source of the authority’s power to erect protective screens on the overpass. Section 120 would need to be interpreted by reference to the definition of “regulate travel” in the Dictionary to the Act…[366]

Liability Not “Based on Exercise of, or Failure to Exercise” Special Statutory Power

The Respondent’s case was not that the Minister was negligent in failing to give a direction under section 120, but rather that the RTA was negligent in failing, of its own initiative, to screen the bridge sooner. [371]

There is a well recognised category of negligence that:

“… when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered”. (Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ.) [372]

On the basis of Speirs, Mason J in Sutherland SC v Heyman at 458 said:

“It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty.” [373]

Such a duty has also been recognised by McHugh J (with whom Gleeson CJ agreed) in Crimmins at [62] ff. However, a reading of the Statement of Claim shows that the plaintiff made no mention of any statutory power, or of negligence in the exercise of any such statutory power, in the way it put its case. Rather, the acts of negligence alleged were those that I have set out at para [107] above. When the way the plaintiff puts its case for the liability of the RTA makes no mention of any special statutory power of the RTA, I do not see how that alleged liability could be “based on” the RTA’s exercise of, or failure to exercise, any special statutory power. The distinction between a case asserting negligent exercise of a statutory power, and a case that a statutory authority had an affirmative obligation to take reasonable steps to prevent harm to a plaintiff is recognised by McHugh J in Crimmins at [62]-[70]. [374]

From the authorities (at the time) it is unclear whether:

- the section affects the existence or scope of the duty of care; or
- it is a statutory immunity which is engaged at the point of consideration of whether there is a liability for what would otherwise be a breach of a duty of care, the scope of which being ascertained without consideration of the terms of s 43A; and
- the provision should be limited to the valid exercise of power or a decision not to exercise the relevant power and should not extend to protecting an authority where a power has been sought to be exercised (as here), but because of the jurisdictional error involved in the purported exercise of the power, no true exercise of the power has taken place: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597.

An interpretation which limits the effect of s 43A might be seen to be in accordance with principles requiring statutory immunities cutting down common law rights to be read strictly or even jealously. [172- 4]

The debate as to whether the provision should be limited to the valid exercise of power may be impacted by “an assessment as to whether the phrase “involving an exercise of” used in sub-s 43A(3) widened the notion in sub-s 43(1) of “based on … [an] exercise of” a special statutory power”. [173]

Even though the demands in the notice were drastic and could possibly be considered unreasonable, the Council’s actions were not so unreasonable to trigger the exception in s 43A(3), as the inspector had held an honest belief that the plaintiff’s activities were a danger to the environment.

The Council submitted that s 43A provides a defence by requiring plaintiffs to establish that no local Council having special statutory powers relating to their duties, here erection of traffic control devices, could properly consider the act or omission in question to be a reasonable exercise or failure to exercise that power.[61]

There was no evidence in the plaintiff’s case to prove that the Council had departed from what Councils normally did in similar areas of responsibility.[62]

Were the matters raised by s 43A not matters of defence but instead a precondition which a plaintiff must prove as a precondition to establishing liability on the part of a public or other authority for its exercise of a special statutory power? This issue undecided.[64]

“Whether reasonable prospects of success exist could vary depending upon the results of inquiries and the collection of evidence. Accordingly, just because the plaintiff could not have satisfied s43A Civil Liability Act when the trial commenced does not mean that the claim against the Council had no reasonable prospects of success when the Amended Statement of Claim was issued.” [68]

Section 41 defines (for the purposes of Pt 5 of the Civil Liability Act, in which Part s 44 appears) “function” as including:

“… a power, authority or duty.” [187]
The matter was raised in the District Court, and was dealt with briefly by the trial judge. At [77] his Honour said:

“Section 44 refers to a failure to exercise ‘any function’. This is not a case in which the plaintiff’s claim is based on any such allegation. The ‘function’ exercised by the defendant Council in this case is the function of approving a development/building application. That function was clearly exercised and the case against the defendant is based on the manner of its exercise, not a failure to exercise it at all. Section 44 therefore has no application in this case …” [188]
As can be seen, his Honour identified “function” for the purposes of s 44(1) as the broadly stated function to deal with applications for building approval. If that is a correct identification of “function” in the sub-section, then the conclusion is clearly correct. [189]

However, on behalf of the Council an attempt was made to define or identify “function” more narrowly, and to include the power (see s 41) to impose conditions on the grant of development or building approvals. If that is correct, then it may well be that s 44 affords a complete defence to Makawe’s claims. [190]

However, since I have reached the conclusion that the judgment was correct without recourse to s 44, it is unnecessary finally to resolve that matter. [191]

If a plaintiff wants to run a non-feasance case under section 45 it “must assert and prove facts that take the roads authority out of the immunity that s 45 creates.” The appellant was precluded from arguing this point now as it had only indirectly raised the issue of actual knowledge during the trial. [94]

Facts used to establish the Council’s “actual knowledge of the particular risk” are material facts within UCPR 14.7 and need to be properly pleaded and particularized (Porter v Lachlan Shire Council [2006] NSWCA 126 at [41]). [98 - 9]

Removal of part of the uphill bank to widen the road is “road work” within s 45 however installation of guideposts is not. A guidepost is a ‘structure or device intended to promote safe or orderly traffic movement on roads to warn, advise or inform the drivers of vehicles of any matter or thing in relation to vehicular traffic, road conditions or hazards’ – Under Pt 6, s 45E of the Transport Administration Act 1988 which defines “traffic control facility” (used in the Dictionary of the Roads Act 1993). [106 - 7]

It was unnecessary to determine whether North Sydney Council v Roman [2007] 150 LGERA 419 was correctly decided as the facts of this case fit positively within both conflicting views of Roman.

The statement by an insurance officer in the Council’s Risk Management department that “the area has been earmarked for repair” was sufficient to attribute actual knowledge of the raised concrete slab to the Council and meant that the exception to liability in s 45(1) was not available to the Council, since it showed that relevant officers charged with carrying out repairs already knew of the existing hazard.

Applying Roman (Basten and Bryson JJA) to attach liability, a plaintiff needs to show:

1. actual knowledge of an officer/s within the Council’s organisation; and

2. that officer/s had delegated (statutory) authority to carry out/consider carrying out repairs

'Actual knowledge’ can be inferred from primary facts (Leichhardt Council v Serratore), on the basis that if a system of regular inspections had been followed by the Council’s Maintenance Inspector, it would have revealed the state of the damaged.

It was appropriate to reconsider Roman and adopt the dissenting view of McColl JA (at 435-6) [212] on the following basis:

- Section 45 was intended to prevent liability under Brodie circumstances to protect road authorities for certain cases of non-feasance;

- Protection did not extend to situations where a hazard had been identified in the course of the authority carrying out regular inspections;

- McColl JA’s construction is consistent with the language of section 45;

- The relevant [actual] knowledge needs to reside in an officer who has both a responsibility to inspect roads and a duty to report his/her knowledge of risks to those responsible for repairs;

- The crucial point is that this knowledge needs to be actual and not constructive; [223] and

- The majority view in Roman is too narrow; not mandated by the language of the provision; and unjustifiably places a premium on ignorance.

Contrary to Tobias JA, in my opinion, her Honour made a finding that the Council did not have “actual knowledge” for the purpose of s 45(1). [20]

The issue of actual knowledge of the risk did not arise in this case as the plaintiff failed to establish negligence on the part of either the Council or Telstra [74]

The plaintiff relied on misfeasance on the part of the defendant in the design and construction of the road and there was no reliance upon any subsequent failure by the defendant to carry out roadwork. Accordingly, s 45 did not provide a defence to that part of the plaintiff’s claim. [42] - [43]

The definition of “roadwork” in section 45 excludes “a traffic control facility”, and therefore, s45 does not provide an immunity in respect of the provision of a sign of the type envisaged.

On the issue of whether work to the nature strip or the hole constituted “road work”, section 45 of the Civil Liability Act applied, on either of two bases: the nature strip was part of a road work which the Council failed to maintain, and filling the hole would be a road work which the Council failed to construct or install. [34] – [37]

On the issue of whether the council had actual knowledge, although actual knowledge can be proved by inference, there was no error in the primary judge's conclusion that actual knowledge had not been established, or in his reasons. [49] - [53]

In relation to the refusal of the primary judge to grant an adjournment, “in so far as the primary judge’s decision was based on the notion that the appellant’s allegation in the Statement of Claim that the respondent had knowledge of the existence of the hole was sufficient to enable the respondent to investigate the claim, that is an error. When a plaintiff alleges actual knowledge of something in a defendant, the defendant is entitled to particulars of any communication of that information that the plaintiff relies on, and if the actual knowledge is alleged by the plaintiff to be a matter of inference from certain circumstances, the defendant is entitled to particulars of the circumstances relied on”…however in the circumstances… “I am not satisfied that the error I have identified vitiated the primary judge’s exercise of discretion, or, in any event, that this Court should make some other decision. [41] - [42]

A fact may be regarded as within the ‘actual knowledge’ required for the purposes of this section “if the inference is fairly available and the… authority calls no evidence to rebut…”.[15]

Section 45 did not provide “non feasance protection” because the RTA had actual knowledge of the risk. [120]

The trial judge appeared to have misconstrued s 49 and reached a conclusion that may have been warranted by s 50 of the Act. However s 50 has no application to cases governed by the Motor Accidents Compensation Act 1999. [25]

Section 49 of the Act does not have the effect that no duty of care is owed to a person who is intoxicated, and does not have the effect that a person who is intoxicated is not entitled to recover damages for that reason. It is not the meaning of s 49(1)(c) that the standard of care is lowered in the case of a person who may be intoxicated, in comparison to the standard of care in relation to a person who is not intoxicated. The respondent owed the same duty of care to the appellant who was drunk that he would owe if the appellant had been walking normally across the roadway. [26 - 7]

The events of the accident should be divided into two phases. When the appellant stumbled away from the respondent’s path, it was reasonable for the respondent to act on the basis that the risk of collision with the appellant had passed. A second phase occurred when the appellant turned and ‘quickly stumbled’ back into the respondent’s path, in which timeframe the respondent had no opportunity to take any avoiding action. [42]

The relationship between sub-s 50(2) and (3) is not entirely clear but can be seen to contrast or juxtapose the likelihood of the injury occurring to a non-intoxicated person and proving that the intoxication played no part in the cause of the injury [103].

The expression “self-induced” in s 50(5) of the Act is to be equated with “voluntary”. Voluntariness will not be negated by ignorance as to the amount of alcohol which would make the individual concerned intoxicated.[21]

Section 50(1) outlines the circumstances under which the exculpatory provisions of s 50(2) apply.[22]

“In the light of the need to determine a single cause of loss in determining “the act or omission that caused the death, injury or damage” for the purposes of s 50(1), and taking account of the difficulties in finding a single cause that would otherwise be inevitable, I am of the opinion that that section must be construed as referring to “the act or omission that directly caused the death, injury or damage”. In my opinion, “directly”, in this sense is to be equated with “proximate”.” [40]

“A direct (or proximate) cause in this sense is not the first, or the last or the sole cause of the loss; it is the effective or dominant or operative cause…On this basis, the Court may determine a single cause of the death, injury or damage in accordance with principles that have long been understood, including notions of commonsense.” [41]

One notable feature of this case is that the first use of a weapon was by Poel Snr, and there was considerable conflict in the evidence concerning the circumstances of its use. [34]

Thus, the primary judge’s findings did not exclude the allegation, supported by Barnett’s evidence, that Poel Snr left his property at the time when the fighting with the Finigans had cooled down, and advanced up to Barnett who was standing on the nature strip and telling him to stay out of it, but not threatening him; and then struck him heavily with a substantial piece of wood. [38]

If that were the case, it would not prevent Barnett’s conduct in going away to get a cricket bat, and then returning and striking Poel Snr with the cricket bat causing him actual bodily harm, from amounting to the criminal offence to which Barnett pleaded guilty. But it would mean that Poel Snr’s involvement with the Halls and the friends of Hall Jnr commenced with a serious assault by him upon Barnett, using a weapon. This in turn could be relevant to …the application of s 52 … [39]

If one accepts that the Halls and Barnett did have the common purpose identified by the primary judge, in my opinion the question whether what happened in relation to Poel Snr was within that common purpose would be very materially affected if Poel Snr’s involvement was initiated by his own criminal assault on Barnett, rather than by Barnett advancing threateningly upon Poel Snr and Poel Snr then striking Barnett in self-defence. [40]

As regards s 52, if it were the case that Poel Snr had criminally assaulted Barnett with a weapon, that conduct would fall within the terms of s 52(1)(a), and efforts to disarm him could fall within s 52(2)(a). Hall Snr’s evidence was that his intervention was to protect Poel Snr from retaliation from Barnett, and that evidence was rejected by the primary judge (judgment [109]). But Hall Snr also gave evidence that his intention was to disarm Poel Snr, and the primary judge found that his purpose was to protect Barnett from Poel Snr (judgment [109]); and although she found that Hall Snr’s intervention exposed Poel Snr to injury from Barnett’s attack (judgment [110]), the primary judge did not find that this was Hall Snr’s intention. Thus the evidence and the findings could support an inference that Hall Snr intended to prevent Poel Snr using the weapon to assault Barnett again or to assault anyone else, and also believed it was necessary to disarm him in order to do so. [41]

However, that would still leave the issue of s 52, in relation at least to the individual assaults by Hall Snr and Hall Jnr on Poel Snr and Poel Jnr. In my opinion, in circumstances where s 52 had been pleaded, it was a miscarriage for findings to be made against the Halls, without s 52 being considered in the context of findings made as to the circumstances of the intervention by Poel Snr. [45]

The primary judge’s rejection of the totality of the driver’s evidence as a result of his credibility infected his findings of fact generally. If the trial judge had accepted as much of the driver’s evidence as had been corroborated by the evidence of independent witnesses, it would be open to a tribunal of fact to find that the driver’s conduct was a reasonable response to the circumstances as he then perceived them within the meaning of s 52(2). [120] [122] [126]

s 52(2) has two limbs:
i) a subjective belief of the person that the conduct is necessary for one of the prescribed reasons, and
ii) a partly objective assessment of whether the conduct is a reasonable response in the circumstances, as perceived (subjectively) by the person carrying out the conduct. The second limb depends upon evidence as to the subjective perceptions of the person carrying out the conduct.

Even where evidence is rejected due to a witness’s credibility, this does not prevent the evidence from bearing some weight in the Court’s assessment of a person’s subjective perceptions under s 52(2). [151]

s 52(2) is likely to involve complex legal issues precluding the application of certain limitations on the Court’s power, under s 140 of the CLA, to transfer proceedings from the District Court to the Supreme Court, Common Law Division. [134] [136] [157]

One notable feature of this case is that the first use of a weapon was by Poel Snr, and there was considerable conflict in the evidence concerning the circumstances of its use. [34]

Thus, the primary judge’s findings did not exclude the allegation, supported by Barnett’s evidence, that Poel Snr left his property at the time when the fighting with the Finigans had cooled down, and advanced up to Barnett who was standing on the nature strip and telling him to stay out of it, but not threatening him; and then struck him heavily with a substantial piece of wood. [38]

If that were the case, it would not prevent Barnett’s conduct in going away to get a cricket bat, and then returning and striking Poel Snr with the cricket bat causing him actual bodily harm, from amounting to the criminal offence to which Barnett pleaded guilty. But it would mean that Poel Snr’s involvement with the Halls and the friends of Hall Jnr commenced with a serious assault by him upon Barnett, using a weapon. This in turn could be relevant… s 54 of the Civil Liability Act; but as mentioned earlier, these matters were not pleaded. [39]

Finally, I note that, although I would not have allowed an appeal on the basis of illegality and s 54 of the Civil Liability Act, in circumstances where these were not pleaded, it does appear that, if Poel Snr’s involvement commenced with a criminal assault by him on Barnett, s 54 could well afford a defence. In my opinion, this adds weight to the view that there has been a miscarriage of justice. [50]

Section 54 (1) is engaged as the plaintiff’s gunshot wound was sustained at the time of effecting a break and enter - “a serious offence” under CLA.

The approach to the provision is as follows:

- s 54(1) is a defence to a plaintiff’s claim for an award of damages (not existence of liability) and the defendant bears the burden of proving matters in (a) and (b) on the balance of probabilities; [124]

- s 54 (2) is a counter defence to sub-s (1) and the onus shifts to the plaintiff to prove that the defendant’s conduct was an “offence” on the balance of probabilities;

- The defendant then needs to prove that his conduct was in self-defence guided by the principles in s 52(2).

- The elements of each tort need to be separately proved as each tort caused different damage and the damage flowing from each should have been identified and quantified by the trial judge;

- Intent to cause injury does not negate self-defence as self defence follows a completed crime/tort, where all the elements have been made out; R v Kurtic (1996) 85 A Crim R 57

- Test for self-defence is established in R v Katarzynki [2002] NSWSC 613. Whether:

1. the defendant believed his conduct was necessary in order to defend himself; and
2. is there a reasonable possibility that his conduct was a reasonable response to the circumstances as he perceived them? [122]

A company cannot be held liable for assault as mens rea cannot be vicariously attributed to a corporation through its servant or agent [154]

In terms of section 52, the standard of proof is balance of probabilities as the provision is directed at exempting a defendant from civil liability even though it is similarly worded to section 418 of the Crimes Act. [122-3]

In relation to section 53, the trial judge rial Judge should have stated grounds on which plaintiff’s circumstances were exceptional, identified the evidence and explained the grounds leading her to a conclusion that a failure to award damages was “harsh and unjust” [166]

“When regard is then had to ss 30(1)(c) and 30(1)(e) of the Interpretation Act 1987 (NSW), the position appears to be that the Joint Venture could not raise contributory negligence as a defence to Mr Vranjkovic’s action for damages based on the breach by the Joint Venture of its statutory duties.” [39] (d) and (e)

Extensive discussion of the factors surrounding the legislature’s introduction of the provision in paragraphs [15] [19] [117] to [119] [121] to [125] [131] and [190 ff]; “no doubt Division 5C was introduced with the purpose of eliminating claims for damages which are not "fairly arguable". However, it runs the grave risk of becoming an instrument of injustice if not properly understood and applied. Division 5C requires the legal practitioner to form a belief about the prospects of success in circumstances where he or she is not merely considering the client's interests and the duty to the court, but will inevitably be concerned about his or her potential exposure to a personal costs orders. There is a real risk that the over-cautious will refuse to act, potentially depriving a client of an effective remedy.”