Week 7 PART 2 Public Authority Liability
PART 2 Public Authority Liability
Public Authority nonfeasance (failure to act)
Pre-Anns - no action lay for misfeasance. Eg. Sheppard v Glossop Corp  3 KB 132: ‘if there is no duty to light, there is no negligence in abstaining from lighting’.
Foreseeability of harm to class of victim not enough to establish DoC for omission – see Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424
Duty will not usually arise for failure to exercise a power unless authority does something to create or increases the risk of injury.
In line with
approach, number of factors taken into account.
Special/Specific Reliance and General Reliance
Developed in Sutherland Shire Council v Heyman. Special reliance may give rise to duty of care in omissions case where actual reliance by Pl or looks to authority for specific safety (eg. Parramatta City Council v Lutz (1988) 12 NSWLR 293).
General reliance developed by Mason J – where community at large reasonably expects PA to act in particular way (eg. fire fighters or air traffic control).
HC in Pyrenees Shire Council v Day (1998) 192 CLR 330 rejected this theory as, inter alia, lacking sound doctrinal footing.
Salient features apparent in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1: vulnerability of Pl when compared with PA’s knowledge of risk (and power or ability to minimize risk) critical factor. See also Amaca Pty Ltd v State of NSW  NSWCA 124.
Two types of decision by Public Authorities;
Often difficult to draw distinction;
See L v Commonwealth (1976) 10 ALR 269 for good example: Overcrowding and failure to build bigger prison was a policy decision (as based on policy choice re resource allocation). Failing to keep classes of prisoner separate or make regular inspection patrols etc seen as ‘operational’ decisions (it was putting policy about running of prisons into practice).
Policy (called Planning or Discretionary) decisions: using policy choices and discretions.
Not reviewable by courts in negligence
. Any review would potentially transgress the separation of powers.
Graham Barclay Oysters v Ryan (2002) 211 CLR 54: decision about industry regulation seen as ‘policy’ decision.
Operational decisions: putting decided policy into practice.
Reviewable by courts in negligence
and more likely to attract duty of care. See Lord Wilberforce in Anns v Merton London Borough Council  AC 728.
Pyrenees Shire Council v Day (1998) 192 CLR 330: failure to repair fire defect was ‘operational’ decision.
Stuart v Kirkland-Veenstra: failure to take victim into custody was ‘operational’ decision.
PA and the CLA
Has been some confusion whether it applies to negligence. Recent Qld Supreme Court case of Hamcor Pty Ltd v State of Queensland  QSC 224 held it is confined to tort of breach of statutory duty.
“so unreasonable”: refers to Wednesbury unreasonableness from the case Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 AC 223. According to de Smith and Brazier in Constitutional and Administrative Law (6th ed 1989, p 579) “this seems to suggest that only a preposterous decision (‘something overwhelming’) could be successfully impugned on its merits”.
s. 35 of the CLA in Qld provides:
Breach of Statutory Duty in Public Authority cases
Creates public authority
impose duty on public authority
breach of which give rise to
private action in tort for breach of that statutory duty
creates public authority
imposes power on public authority
give rise to
common law duty to;
exercise power with reasonable care
common law duties enforceable in negligence
When PA exercises its statutory powers, must exercise reasonable care: ‘so that if those who exercise them could by reasonable precaution have prevented an injury which was 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).
Special problems exist in applying negligence principles in this context:
PA’s functions are set by statute, to be performed in public interest or for public purposes.
Generally their resources are limited, requiring policy choices as to resource allocation.
Treatment of PA’s now subject to legislation in some states. Eg. In Qld, protection under the CLA for PA’s limited to governmental bodies.
Common law liability governed by the HC decision in Brodie v Singleton Shire Council (2001) 206 CLR 512 (immunity for nonfeasance should no longer apply).
But see s. 37 CLA:
(1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority— (a) to repair a road or to keep a road in repair; or (b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
‘Actual knowledge’ – see North Sydney Council v Roman  NSWCA 27
Liability for Independent Contractors: see eg. Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22