Tort 'reflects community standards'

Tort law reflects community standards, it doesn’t define them, barrister Geoff Watson SC told the AILA conference.

"Tort law only exists because public policy says there should be a remedy for a wrong that is neither a crime nor a breach of contract," he said.

"Tort law is a reflection of a public policy under which society distributes losses in accordance with community values."

Mr Watson said as community values changed, so did "the rules by which we pass judgement on our general conduct".

He detailed the "quite dramatic" way in which High Court judgements changed during former Chief Justice Murray Gleeson’s 1998-2008 tenure.

Mr Watson said the decades before CJ Gleeson saw tort law expanded and the narrow view of contributory negligence was "unimaginable".

"In the two or three decades before the advent of the Gleeson High Court the mood had been shifting toward distributive justice, as opposed to corrective justice. There had been several truly remarkable decisions demonstrating an expansive view of tort law, bringing liability issues close to the edge of strict liability, and opening gates for large damages claims."

Mr Watson said some of the prior decisions were "quite mad" and had imposed liability for things that were not foreseeable.

For example, in McLean v Tedman in 1984, an employer was found liable for not enforcing a safety instruction that was deliberately disobeyed.

InHackshaw v Shaw (1984) a duty was owed by an occupier to an adult trespasser who had come onto the property to thieve from the occupier.

CJ Gleeson’s court reversed the trend, reverting to earlier, well-established principles and it was "not scared to comment on flaws in prior judgements".

Mr Watson said the High Court not only stated the law, it set the mood. "A lengthy period where the High Court took an expansive view of tort law encouraged intermediate appeal courts and trial courts to take a similar view."

During the 1980s there was a sensation a claimant only had to ask to receive – the hallmark of distributive justice.

Mr Watson said the Gleeson High Court reset the mood on tort law. "I do not suggest that reflected some sort of legal, political or social conservativism; it simply reflected a change in course, sending the courts back toward well-established legal principle."

For example, in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000), an employee of a tenant of a small shopping centre was attacked by thieves in the shopping centre’s poorly lit car park. No action was available against his employer, so the employee sued the occupier.

The employee lost. It was held that even though an occupier obviously owed some kind of duty, that duty did not extend to taking care to prevent physical injury resulting from criminal behaviour of third parties.

In Dovuro Pty Ltd v Wilkins (2003), a company sold canola to a farmer. No-one knew the canola carried noxious weed seeds and as a consequence the farmer suffered damage. The company admitted it owed the purchaser a duty of care, but denied breach.

"The farmer sued and lost. In finding no breach, it was plain most of the High Court felt the admission of duty was ill-founded, and there was no relevant duty owed because it was unknown at the time the canola was sold it was infested with the weed. In any event, the same foreseeability issues meant there was no breach," Mr Watson said.

In Tame v NSW in 2002 an innocent teetotaller driver who developed a psychiatric injury after blood tests were transposed was not entitled to damages.

While the High Court had previously been about "loss spreading", CJ Gleeson commented during Tame that lawyers needed reminding that not everyone was insured.

In Cole v South Tweed Heads Rugby League Club in 2004 it found no general duty to take reasonable care to protect Cole against herself. She was drunk and the club offered a courtesy bus or a cab to take her home. She refused and was injured when run over by a car while walking home.

In Woods v Multi-Sport Holdings in 2002, there was no liability for an indoor cricket injury because the game’s risk was obvious.

In Vairy v Wyong Shire Council (2005), a man suffered tetraplegia after diving into shallow water. There were no warning signs, but the diver had not assessed the water depth before diving and simply assumed it was safe because he had seen others do it.

The diver sued and lost. The council’s duty to take reasonable care did not require the erection of warning signs – that was especially so given the large number of other risks of injury that lay in places within the council’s care, control and management.

In Roads and Traffic Authority of NSW v Dederer (2007), a teenager dived head first from a bridge despite the defendants having erected signed prohibiting diving.

The teenager sued and lost. The Gleeson High Court (CJ Gleeson was in dissent) said the defendants had discharged their duty of care – the obligation was not to prevent harm, but only to make the bridge safe for users exercising reasonable care for their own safety.

"In the 1980s and 1990s there was a sense vicarious liability could be imposed in circumstances well beyond the employment relationship, and generally into the area of a kind of "enterprise liability". That was shut down," Mr Watson said.

In NSW v Lepore (2003), school teachers had sexually assaulted young students during school hours and on school premises.

The students sued and lost. It was held that although the duty of care owed by a school to pupils was non-delegable, it did not extend to make the school vicariously liable for intentional criminal conduct against a pupil by a teacher employed by the school.

In Sweeney v Boylan Nominees Pty Ltd (2006), a customer went into a service station to buy milk, opened the refrigeration cabinet and the door fell off its hinge and onto her foot. A mechanic had been on the premises fixing the hinge only hours before. The mechanic was obviously negligent. The customer sued the occupier and a head contractor who had engaged the mechanic.

The customer lost and a bright-line rule was created: neither an occupier nor a principal contractor could be made vicariously liable for the acts of an independent contractor.

Mr Watson said for some time the High Court had been edging toward a position where determining contributory negligence related to subjectivefeatures of the plaintiff. So, if a job was mundane and boring, you could be excused for not paying attention to your own safety.

In a string of cases the Gleeson High Court reversed that, reaffirming the objective test for contributory negligence and shoring up personal responsibility.

In Joslyn v Berryman (2003), the plaintiff was very drunk and allowed the defendant to drive while she also was drunk. The defendant lost control of the car and the plaintiff was injured. The NSW Court of Appeal said there was no contributory negligence by the plaintiff.
 
The Gleeson High Court restored a finding of contributory negligence and reaffirmed that the test for contributory negligence – like the test for negligence – was objective, and the plaintiff oughtto have been aware of the defendant’s intoxication and held that the claim mustbe reduced for that contributory negligence.

Mr Watson said a driving consideration behind statutory reform of tort law following the Ipp Report was the burgeoning liability of local government authorities. That had grown out of control. The courts were clogged with plaintiffs who had tripped on irregular footpaths and the like.
 
The Gleeson High Court brought those claims back into a proper perspective.

Graham Barclay Oysters Pty Ltd v Ryan (2002) was a representative action brought by people who had been poisoned by bad oysters. The claim was that the local government authority was liable in negligence for failing to use its powers to control poisons entering the waterway.

The claim in negligence failed because the council was not exercising a control over the harm that eventuated and, even although the council may have had powerto take action, it was under no dutyto do so.

In Ghantous v Hawkesbury City Council (2001), a pedestrian tripped on an uneven portion of footpath. The original construction involved no negligence, but subsequent erosion resulted in a 50mm disjunct between the slabs making up the footpath.

The claim originally failed on the basis it reflected non-feasance but, even though the misfeasance/non-feasance myth was exploded, the claim still failed. Because no duty was cast on the council to create a footpath of the kind postulated, there was simply no negligence because the footpath was not unsafe.

Mr Watson said: "Over my life in the law I have seen the heads of damages expanded markedly, and creatively. The Gleeson High Court put something of a restriction on that, even criticising some earlier approaches taken to damages."

In Gray v Motor Accident Commission (1998), a motor car driver deliberately ran over a victim. The driver was sentenced to seven years imprisonment.

"The purpose behind exemplary damages is punishment; so they are not available to be awarded where the criminal law has already brought a substantial punishment upon the wrongdoer," he said.

Mr Watson said the French High Court was following the Gleeson court’s lead by imposing precision on the duty of care and reinforcing personal responsibility.