torts mid-term assignment - awarded hd

LWZ116 | TORTS ASSIGNMENT #1 Semester 2 | 2016

1 LWZ116 (TORTS) Suzanne Stone | s294199

PART 1 – BRIEFING RE RECOMMENDED NTG RESPONSE TO IPP REPORT

RECOMMENDATION 28 – Standard of Care

SUMMARY

In 2014, the Northern Territory Law Reform Committee (NTLRC) published a report on “Tort

Law Reform in the Northern Territory” as commissioned by the Northern Territory

Attorney-General to determine if the Northern Territory Government (NTG) should reconsider

legislating the tortious law of negligence in response to the recommendations made in the 2002

“Ipp Report”1. In brief, the report recommended to not follow suit of other Australian jurisdictions,

and continue applying common law of negligence instead.2

The scope of this briefing is to consider and recommend whether the NTG should implement

recommendation 28 of the IPP Report in terms of the background of this recommendation, issues

identified by other Australian jurisdictions since legislating negligence, and analyse how effective

implementing recommendation 28 would be in the Northern Territory (NT) jurisdiction.

BACKGROUND BEFORE THE IPP REPORT

In the late 1990s and early 2000s, there was a perceived widespread belief that there was an

“explosion” of personal litigation in the law of negligence resulting in an affordability and

availability “crisis” of personal injury liability insurance cover.3 Councils in particular were being

hit with high compensation liability court claims to plaintiffs for failing to properly warn of the

dangers of jumping into the sea, rivers, or pools.4

THE IPP REPORT

The 2002 “Ipp Report” terms of reference was to only examine a method of reform with respect

to limiting liability and quantum of damages arising from personal injury and death.5 Consultation

1 David Andrew Ipp, Review of the Law of Negligence - Final Report (2002). 2 Northern Territory Law Reform Committee, Report: Tort Law Reform in the Northern Territory (December 2014)

39. 3 Ibid 5-6; Ipp, (2002), ix. 4 See for example: Swain v Waverly Municipal Council (2005) 220 CLR 517; Vairy v Wyong Shire Council (2005)

223 CLR 422; Wilkins v Broken Hill City Council [2005] NSWCA 468; Nagle v Rottnest Island Authority (1993)

177 CLR 423. 5 Ipp, (2002) ix.



feedback highlighted the desire to see improved risk management and augment regulation to high-

risk activities.6 The aim of the report was to balance between the interests of those persons whom

were injured, those whom negligently caused the injuries, and would be accepted by the

community at large.7 Professor Wright confirmed that the Ipp Report was not commissioned by a

litigation crisis, but that of an insurance crisis based on many media reports and high level politics.8

RECOMMENDATION 28

Recommendation 28 relates to legislating the basic principle of duty of care in the law of

negligence which the report defined it as a person owing a duty of care to another by reasonably

expecting to have foreseen that without taking care in their actions, would cause another to suffer

personal injury or death. In this context, duty of care also encompasses foreseeability and

negligence calculus. 9

Citing Shirt as the primary case precedence to subsequent public liability insurance claims that

contributed to the cause of the Ipp Report,10 the recommendation was for a reasonable person to

not be held in breach of duty of care by failing to provide precautions to an unforeseeable risk;

particularly when related to the probability, likely seriousness, burden of precautions, and social

utility.11 On the premise that there is a very low probability of injury/death occurring, a reasonable

person would, or ought to know, that it had occurred in the past,12 the report noted that the lower

courts were in danger of expecting a reasonable person to eliminate the most remote foreseeable

risk, and not take into consideration all the other elements of the negligence calculus.13

The report recommended to not only legislate Shirt’s formula, but to incorporate all of the elements

of the negligence calculus when assessing duty and standard of care to avoid the noted blending

between foreseeability and probability in the courts. Arguing that if an event is even remotely

foreseeable as not insignificant,14 it does not automatically justify a reasonable person would have

6 Ibid 27. 7 Ibid 32. 8 Professor E. W. Wright, National Trends in Personal Litigation: Before and After "Ipp", Law Council of Australia

No (2006) 4. 9 Ipp, (2002) 102. 10 Ibid 105; Citing Wyong Shire Council v Shirt (1980) 146 CLR 40. 11 Ipp, (2002) 104. 12 Ibid 104 ; Referring to Chapman v Hearse (1961) 106 CLR 112, 115 as per Dixon J. 13 Ipp, (2002) 105; Referring to Tame v New South Wales [2002] HCA 35, [96]-[108].as per McHugh J. 14 The panel wanted to deliberately use the double negative adjective “not insignificant” to replace the awkward

phrasing of “not far-fetched” or “fanciful”, and not mean the larger emphasising synonym: “significant”: Ipp,

(2002) 105.



taken precautions.15 Accordingly in brief, it recommends that there be statutory provisions that

effectively holds a person to be NOT negligent for ONLY failing to provide precautions against a

not insignificant foreseeable harm; AND have statutory provisions that ensures the entire

negligence calculus16 is taken into consideration when assessing liability to duty and standard of

care.17

AFTER THE IPP REPORT – EFFECTS UPON OTHER JURIDICTIONS

The Report created widespread tort law reforms between 2002 and 2004 in varying degrees across

the states and territories, with the exception of the NT, which was the only Australian jurisdiction

that did not codify the law of negligence with respect to duty of care and causation. 18 The

pendulum shifted in the courts from favouring the plaintiffs to favouring the defendants who were

typically insurance companies or government authorities.19

Fundamental to the success of the reform was the first recommendation - a single statute.20 Instead,

the final result of the reforms was a collection of seven disparate jurisdictional legislations.21

Further, opinions shifted from being a fair and adequate fundamental common law right, in which

a person injured, through no fault of their own, could seek compensation, to now being a

discretionary financial interest competing against insurance premiums and political concerns.22

Within three years, there were calls for negligence laws to be rolled back as reforms had gone too

far.23

15 Ibid 106. 16 (a) Probability that the harm would occur if care was not taken; (b) likely seriousness of harm; (c) burden of

taking precautions to avoid the harm; and (d) social utility of the risk-creating activity. 17 Ipp, (2002) 106-7. 18 John North, Fourteenth Annual Insurance Law Conference organised by the Institute for International Research,

Tort Reforms - Futile or Necessary?, Law Council of Australia No (2005) 1.

Northern Territory Law Reform Northern Territory Law Reform Committee, (December 2014) 5. 19 Tim Bugg, 'Negligence and Damagaes: Personal Injury, Property Damage, and Pure Economic Loss' (Paper

presented at the Fiji Law Society 50th Anniversary Conference, Fiji, 7; The Hon JJ Spigelman, 'Tort law reform:

An overview' [5] (2006)(14) The Tort Law Review, 7. 20 Ipp, (2002) 35. “Panel's recommendations should be incorporated (in suitably drafted form) in a single statute

(that might be styled the Civil Liability (Personal Injuries and Death) Act (‘the Proposed Act’) to be enacted in each

jurisdiction.” 21 Bugg, above n 19, 8. 22 Ibid.; Spigelman, above n 19, 7-8. 23 Justice David Ipp, The Politics, Purpose and Reform of the Law of Negligence, Australian Insurance Law

Association (Noosa, Qld); Bugg, above n 19; Spigelman, above n 19, 7-8, 12. For example, NSW created several

provisions that went beyond Ipp recommendations e.g. restricting recovery of mental harm for a person whom

witnessed a traumatic event; other states created a public authority policy defence in liability in breaching its duty of

care by failing to exercise a power to prohibit/regulate and activity etc – see New South Wales v Fahy (2007) 232

CLR 486.



The Wright (analysis) Report concluded that the Ipp recommendations were not based on any

actual empirical evidence regarding personal litigation injury claims between 1995 and 2000.24

However, Wright’s analyses did find that plaintiffs were becoming increasingly successful in their

claims with ever growing quantum of damages - which neither Ipp nor government agencies had

previously reported. Overall, the impact of the reforms was evident in all jurisdictions but ACT

and SA. NT reforms were small in comparison, and so was the impact. However, the claims in

NSW,25 QLD,26 and more so in Victoria, dropped significantly.27 The Victorian Government

reviewed their legislation28 in 2014, but only relating to quantum of damages. 29

After the reforms, there was growing criticism regarding restricted rights of the plaintiffs with

unreasonable barriers and limitations being imposed, possibly causing legitimate compensation

claims being denied or under-compensated. Legislative loopholes allowed certain groups of

persons eligible for compensation while others in similar circumstances denied.30

In spite of legislating duty/standard of care and breach of duty, pre-reformed common law such as

Romeo,31 Vairy,32 Sullivan,33 Fahy,34 Modbury Triangle,35 and Shirt,36 are still being applied to

interpret duty of care and breach of duty statutory provisions to even the most recent interstate

24 Wright, Law Council of Australia No (2006) 29. 25 Fallen by more than 63 percent, ibid 14. 26 Fallen by more than 70 percent, ibid. 27 Fallen by more than 80 percent, ibid 30. 28 Wrongs Act 1958 (Vic) 29 Dr Michael Butin and Bill Mountford, Adjusting the Balance: Inquiry into Aspects of the Wrongs Act 1958 - Final

Report February 2014, Victorian Competition and Efficiency Commission No (2014). 30 Ibid vii. 31 Romeo v Conservation Commission (NT) (1998) 192 CLR 431. 32 Vairy v Wyong Shire Council (2005) 223 CLR 422. 33 Sullivan v Moody (2001) 207 CLR 562. 34 New South Wales v Fahy (2007) 232 CLR 486. 35 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. 36 Wyong Shire Council v Shirt (1980) 146 CLR 40.



civil liability cases such as Hendricks in the ACT,37 Vincent in NSW,38 Contor in Qld,39 El-Masri

in SA,40 Badenach41 in Tas, VWA42 in Vic, and Tarbottom43 in WA.

RECOMMENDATION

In short, this briefing supports the 2014 NTLRC report recommendation to not implement Ipp

Report’s recommendation 28 for the following reasons:

1. Existing duty/standard of care and breach of duty statutory interpretation has not

significantly digressed from common law meaning. NT still utilises common law

interpretation, codification in other jurisdictions of these elements in negligence has

hitherto created inconsistency and prejudice to some cohorts of personal injury plaintiffs;

2. In comparison to the eastern states, the NT has never really had a significant issue of

negligence cases impacting on insurance liability prior to or after the Ipp Report; and

3. The Ipp Report’s primary recommendation was to have uniform legislation between

jurisdictions in order for the remaining recommendations to succeed. This has not occurred

with seven incongruent codes. Since the 2014 NTLRC report, there is still no persuading

argument or benefit for the NT Parliament to create an eighth civil liability or tortfeasance

statute when pre-reform common law is still being used as precedence in both law today.

37 Regarding interpretation of Civil Law (Wrongs) Act 2002 (ACT) ss 42 - 46; with respect to Hendricks v El Dik

(No 4) ACTSC 160, at 144; citing Vairy v Wyong Shire Council (2005) 223 CLR 422, at [26]; Wyong Shire Council

v Shirt (1980) 146 CLR 40, at [47]-[48]; and New South Wales v Fahy (2007) 232 CLR 486, at [57]. 38 Regarding interpretation of Civil Liability Act 2002 (NSW) s 5b; with respect to Vincent v Woolworths Ltd [2016]

NSWCA 40, at 48; citing Wyong Shire Council v Shirt (1980) 146 CLR 40. 39 Regarding interpretation of Civil Liability Act 2003 (Qld) s 9; with respect to Contor v Bickey & Anor [2016] QSC

91, at [21]-[22]; citing Romeo v Conservation Commission (NT) (1998) 192 CLR 431, at [125] per Haynes J. 40 Regarding interpretation of Civil Liability Act 1936 (SA) ss 31, 41; with respect to El-Masri v Molloy & Anor

[2015] 63 SASCFC, at [8]; citing Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. 41 Regarding interpretation of Civil Liability Act 2002 (Tas) s 11; with respect to Badenach v Calvert [2016] HCA

18, at [59]; citing Sullivan v Moody (2001) 207 CLR 562. 42 Regarding interpretation of Wrongs Act 1958 (Vic) s 14B(3); with respect to VWA v Monash University [2016]

VSC 178, at [19]-[21] per McDonald J; citing Vairy v Wyong Shire Council (2005) 223 CLR 422, at [131], [148]

and [161]. 43 Regarding interpretation of Civil Liability Act 2002 (WA) 5B; with respect to Tarbottom v Citic Pacific Mining

Management Pty Ltd [2015] WADC 159, per Wager CDJ at [90]-[91]; citing New South Wales v Fahy (2007) 232

CLR 486, [57]; in Department of Housing and Works v Smith [No 2] [2010] 25 WASCA, as per Pullin JA at [34],

[36] and [75].



Words: 1,203 (not including footnotes)



PART 2 – PROBLEM QUESTION

There are four possible negligence torts from this scenario:

ARMIN V KELLY THE INSTRUCTOR

ISSUE:

1. Did Kelly have a duty of care to Armin when she took him to go water skiing, give instructions,

and helped him into a lifejacket knowing it was damaged?

2. And if so, did Kelly breach her duty of care to Armin when she gave him brief instructions,

and then assisted him in putting on the damaged lifejacket which lost its floating capability

when Armin fell off his skis and nearly drowned?

RULE AND APPLICATION:

Originating from Donaghue’s Neighbour Principle, a duty of care does not require a privity of

contract, nor confined to a closed list of relationships. Therefore, it must be asked if Kelly must

take reasonable care to avoid acts or omissions which she can reasonably foresee would be likely

to injure her neighbour whom is so closely and directly affected by her act that she ought

reasonably to have them in contemplation as being so affected when she is directing her mind to

the acts or omissions which are called in question.”44

In Caltex Refineries,45 Allsop J stated that if a case cannot be aligned to an accepted established

category in duty of care, then it becomes a novel case in which the relationship between the

plaintiff (Armin) and defendant (Kelly) must be analysed for any salient features that would impute

Kelly having a legal duty to take reasonable care to avoid Armin any harm or injury. Continuing

on in using a salient features approach to test if a duty exists, Allsop J at [103] looked to Sullivan46

when considering (1) if the harm Armin suffered was compensable by infringing a legally

recognised right; (2) if the harm Armin suffered was reasonably foreseeable; (3) if the case

analogised to an established category such as teacher and student; and (4) if there are any salient

features identified to a duty of care.

44 Donaghue v Stevenson (1932) AC 562, as per Lord Atkin at 580. 45 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, [101]-[108]. 46 Sullivan v Moody (2001) 207 CLR 562, 579 [49].



This matter appears to be a novel category, because although there is an established category of

school authorities and pupils,47 Kelly is neither. She is however, a friend instructing Armin how

to ski. There are sufficient salient features that identifies Kelly having a duty of care to Armin as

his waterskiing instructor in terms of (1) reasonable foreseeability, in that as Armin’s instructor,

Kelly had, or ought to have known, that her actions/instructions, or omissions of such, would likely

harm or injure Armin;48 and (2) in terms of proximity, in that spatially, temporally, and relationally,

Kelly demonstrated a duty of care to Armin by being his waterski instructor at that time at the

waterski lake by placing a damaged lifejacket upon Armin just before he set off on his skis.49

Although Kelly is not a professional instructor, she is a champion water-skier, so a reasonable

person would expect Kelly to have a higher standard of skill and expertise in instructing a novice

how to ski than someone whom is just a recreational skier.

CONCLUSION: It would be argued that Kelly, knowing Armin had never skied before when she

gave him a waterskiing lesson, breached her duty of care to Armin when she gave him just brief

instructions; and knowingly helped him into a damaged life jacket, which consequently tore and

lost its flotation capability after being dragged behind the boat after falling off his skis.

In defence, Kelly could argue that Armin contributed negligently by (1) telling her that he was a

strong swimmer and loved adrenaline sports and she therefore believed he would be able to swim

long enough to be picked up by the boat; (2) he did not listen to her instructions properly; and

(3) he was intoxicated before skiing.50

Although Armin contributed negligently by lying to Kelly about his experience and was

intoxicated before skiing, he still has a strong chance in succeeding a significant proportion of

damages in his claim against Kelly.

47 Geyer v Downs (1977) 138 CLR 91, 94. 48 Chapman v Hearse (1961) 106 CLR 112, at 120. 49 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, at 103. 50 Cal No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, as per Gummor, Heydon and

Crennan JJ: that at common law, the hotelier did not have a duty of care to restrict the patron’s service of alcohol.

This is analogous to Kelly not having a duty of care to restrict Armin’s intake of alcohol.



CASE 2: ARMIN v BOB – BOAT SPOTTER

ISSUE:

1. Did Bob have a duty of care to Armin when he took on the role of being the boat spotter while

Armin was being towed behind the boat waterskiing?

2. And if so, did Bob breach his duty of care to Armin by failing to “spot” Armin coming off the

skis and notify Patrick, the boat driver, to immediately turn around and pick him up before

Armin began to drown because of the damaged lifejacket?

RULE AND APPLICATION:

The legal definition of duty and standard of care have already been defined in Case 1. This case

does not seem to fit specifically into any established category in duty of care, but more in line with

a novel case in which there are sufficient salient features as described in Caltex51 that satisfies Bob

having a duty of care to Armin as his spotter. An objective person could reasonably foresee, that

as Armin’s spotter, Bob ought to have known that his inaction of not keeping an eye on Armin

would probably increase the likelihood of Armin getting injured.52 Water skiing is an “adrenaline”

sport and potentially dangerous, which is why it is usual practice to have a spotter with the driver

to keep an eye on the skier to reduce the risk of harm. Armin was vulnerable under Bob’s control

of being his spotter while he skied because he was relying on Bob to take immediate action if

something goes wrong. Therefore, Bob was physically, temporally, and relationally linked to

Armin.53

CONCLUSION: It would be argued that Bob breached his duty of care to Armin by failing to

keep watch over him while he was being towed behind the boat. Had he not been texting, Bob

would have seen Armin come off his skis, immediately notify the driver to stop, turn around, and

fetch Armin out of the water. Instead, Armin was dragged along to the point that the life jacket

became damaged enough to lose its flotation capability, and then nearly drowned.

51 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, [103]. 52 Chapman v Hearse (1961) 106 CLR 112, at 120. 53 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, at [103]; Price v State of New South Wales

[2011] NSWCA 341, at [25] as per Allsop P (Beazley and Giles JJA agreeing) in that there was a special

relationship with a specific responsibility for Bob to exercise care to prevent harm to Armin.



Essentially, Bob does not have any real defence as his sole purpose in the boat was to keep watch

over Armin as the designated spotter. He could argue Armin negligently contributed to his situation

by being intoxicated54 and did not let go when he should have. But it would be argued that neither

of these actions significantly contributed to Armin being harmed against the foreseeability of being

injured as a result of Bob failing to watch out for Armin as he was supposed to, so that the boat

would have stopped immediately.55

OTHER POSSIBLE TORTS

There are two other torts possibilities, but they are long shots for Armin, as both respondents have

strong defences.

ARMIN v CARL (PROPERTY OWNER)

Although Carl is the property owner, he was not there, nothing on his property over that he had

legal control contributed to Armin being harmed, and the circumstances of Armin being harmed

were too remote for Carl to have a legal duty of care to Armin.56

ARMIN v STAN (RESCUER)

The other is Stan the rescuer whom as a good Samaritan inadvertently broke several of Armin’s

ribs in his attempt to give emergency assistance by resuscitating Armin. As per s 8(1) of Personal

Injuries (Liabilities and Damages) Act 2010 (NT), Stan would have a defence in being exempt

from liability.

Part 2 Word Count (excluding footnotes) 1,211

Total assignment words (excluding footnotes, Part 1 word count notification, and bibliography)

2,414

NB: I used Endnotes which automatically provided a bibliography.

54 Personal Injuries (Liabilities and Damages) Act 2010 (NT) s 14(1). 55 Ibid s 14(2). 56 See Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, as per Dixon J "The general rule is

that one man is under no duty of controlling another man to prevent his doing damage to [someone else]"; As

distinguished from Wyong Shire Council v Shirt (1980) 146 CLR 40, as per Mason J, in that, unlike Wyong Shire

Council, there was nothing Carl the owner could have done to eliminate/reduce the harm to Armin in this

circumstance.



BIBLIOGRAPHY

Articles/Books/Reports

Bugg, Tim, 'Negligence and Damagaes: Personal Injury, Property Damage, and Pure Economic

Loss' (Paper presented at the Fiji Law Society 50th Anniversary Conference, Fiji)

Butin, Dr Michael and Bill Mountford, Adjusting the Balance: Inquiry into Aspects of the Wrongs

Act 1958 - Final Report February 2014, Victorian Competition and Efficiency Commission No

(2014)

Ipp, David Andrew, Review of the Law of Negligence - Final Report (2002)

Ipp, Justice David, The Politics, Purpose and Reform of the Law of Negligence, Australian

Insurance Law Association (Noosa, Qld)

North, John, Fourteenth Annual Insurance Law Conference organised by the Institute for

International Research, Tort Reforms - Futile or Necessary?, Law Council of Australia No (2005)

Northern Territory Law Reform Committee, Report: Tort Law Reform in the Northern Territory

(December 2014)

Spigelman, The Hon JJ, 'Tort law reform: An overview' [5] (2006)(14) The Tort Law Review

Wright, Professor E. W., National Trends in Personal Litigation: Before and After "Ipp", Law

Council of Australia No (2006)

Legislation

Civil Law (Wrongs) Act 2002 (ACT)

Civil Liability Act 1936 (SA)

Civil Liability Act 2002 (NSW)

Civil Liability Act 2003 (Qld)

Personal Injuries (Liabilities and Damages) Act 2010 (NT)

Wrongs Act 1958 (Vic)



Civil Liability Act 2002 (WA)

Civil Liability Act 2002 (Tas)

Cases

Badenach v Calvert [2016] HCA 18

Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649

Chapman v Hearse (1961) 106 CLR 112

Contor v Bickey & Anor [2016] QSC 91

Department of Housing and Works v Smith [No 2] [2010] 25 WASCA

Donaghue v Stevenson (1932) AC 562

El-Masri v Molloy & Anor [2015] 63 SASCFC

Geyer v Downs (1977) 138 CLR 91

Hendricks v El Dik (No 4) ACTSC 160

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

Nagle v Rottnest Island Authority (1993) 177 CLR 423

New South Wales v Fahy (2007) 232 CLR 486

Price v State of New South Wales [2011] NSWCA 341

Romeo v Conservation Commission (NT) (1998) 192 CLR 431

Sullivan v Moody (2001) 207 CLR 562

Swain v Waverly Municipal Council (2005) 220 CLR 517



Tame v New South Wales [2002] HCA 35

Tarbottom v Citic Pacific Mining Management Pty Ltd [2015] WADC 159

Vairy v Wyong Shire Council (2005) 223 CLR 422

Vincent v Woolworths Ltd [2016] NSWCA 40

VWA v Monash University [2016] VSC 178

Wilkins v Broken Hill City Council [2005] NSWCA 468

Wyong Shire Council v Shirt (1980) 146 CLR 40

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