Public Authorities and Private Individuals - What Difference?: Romeo v Consemtion Commission of the
|
|
- Juliet Henderson
- 5 years ago
- Views:
Transcription
1 Public Authorities and Private Individuals - What Difference?: Romeo v Consemtion Commission of the Northern Territory Susan Barton BALLB student, The University of Queensland Once upon a time public authorities enjoyed the fruits of immunity from actions of negligence brought about at common law by a private plaintiff. Rather than establishing a general duty of care under the rubric of common law principles, which might create unreasonable fiscal liability and juridical review of legislative and bureaucratic decisions,' a special statutory duty of care was favoured. This placed public authorities in a protected shaft of non-liability at common law, whereby discretionary statutory powers and functions effectively insulated them from payment of damages to private individuals. This position has now changed due to the most recent High Court decision in Romeo v Conservation Commission of the Northern ~erritory~ (hereafter Romeo). It confirms the applicability of common law principles of negligence when determining the liability of public authorities, subject to some qualifications that necessarily account for the idiosyncrasies of these bodies.~evertheless, the judgments show that some confusion still surrounds the application of the appropriate test of liability. I. Facts and issues of Romeo Pursuant to s19 of the Conservation Commission Act 1980 (NT), the defendant Conservation Commission was charged with caring for, managing and controlling the Casuarina Coastal Reserve, an area which featured a lookout point over a beach. Nearby to this was a car-park surrounded by a low log-fence. One night, the plaintiff and her friend visited the area while excessively intoxicated. Deceived by the appearance of an otherwise non-existent footpath leading to a gap in the vegetation, they walked over the edge of the cliff 'with their heads in the air,'4 landing on the beach some distance below. The plaintiff now suffers from paraplegia. She claimed that, due to the Commission's statutory powers of control and management, it should be held liable at common law for negligently failing to warn about the clifrs edge, or failing to erect either a barrier or sufficient lighting around the area. Accordingly, the issues in need of resolution were as follows: (1) the proper test that determines the existence and scope of a public authority's duty of care; (2) the relevance of statutory functions, powers and duties to the scope of the duty; (3) the role of broader legal and non-legal outcomes that mark the boundaries of discharging the duty; and (4) whether there was any breach of that duty. II. Decisions at first, second and final instance At the first two stages of determination5 it was held that the Commission owed a duty of care. However, there was no breach of that duty, since any precautions taken to eliminate the risk of falling from the cliff would prove ineffective - the danger was foreseeable to 1 Sopinka J, 'Liability of Public Authorities' (1993) Tort Law Review 123 at ( 1998) 72 ALJR Note 1 at Romeo ( 1994) 123 FLR 7 1 at 78 (1 st instance). 5 (1994) 123 FLR 7 1 (1st instance); (1995) 123 FLR 84 (2nd instance).
2 Case Notes 325 both the defendant and the plaintiff herself, and installing protective barriers and fences around the perimeter of the particular area would undesirably mar its natural beauty. Proceeding on different bases, the split majority in the High Court held similarly. However, it rejected the occupier's liability approach of the trial and appellate judges and, instead, adopted principles provided for by the general law of negligence. Ill. First half of the majority - Brennans CJ's statutory formulation of the duty of care Brennan CJ adopted the currently-maligned6 statutory approach when determining the existence of a duty of care owed by the Commission, at times supplementing it with concepts derived from the general law of negligence. Both approaches (i.e. statutory and common law) exist independently of each other. The former considers: (1) the public character of the authority, and (2) the nature of its statutory functions; while, the latter, currently-endorsed approach considers: (1) a duty to take positive action; (2) a sufficient relationship of proximity between the parties such that it justifies the finding of a duty in point (1); and (3) whether particular circumstances reveal factors that necessitate the refinement of the scope of that duty.7 His Honour failed to separate the application of either test. Instead, while expressly adopting the former statutory test, he impliedly extracted concepts from the latter common law test. For instance, he found that the Commission's powers of management and control of the park-land were conducive to the imposition of a purely statutory rather than common law duty of care, arising from their occupation of land and capacity to determine the terms on which visitors enter: When the sole basis of liability of a public authority is its statutory power of management and control of premises, its liability for injury suffered by a danger in the premises is not founded in the common law of negligence but in a breach of a statutory duty to exercise its power.8 More specifically, breaching that duty meant that the Commission had also breached the purpose for which the statutory powers were conferred, that purpose being the protection of visitors to the park-land. Accordingly, the Commission's statutory powers of control and management had a somewhat plenary operation in determining the scope of their liability, in so far as they gave rise to: (1) a statutory duty of care owed to entrants, and (2) a means by which to limit the content of that duty as being the purpose for which the statutory powers were conferred. The width of discretion with which those powers were exercised was confined by an assumption that visitors would take reasonable care for their own safety, regardless of whether it was reasonably foreseeable that some may fail to do this. So while not explicitly applying the common law concept of foreseeability of risk, the lexicon used by Brennan CJ connotes at least some consideration of this, as evidenced by a particular deference to the known and obvious danger of falling off the cliff: 6 S~ttherland Shire Council v Heynaa~z (1985) 157 CLR 424 at Pyrenees Shire Council v Day [I9981 HCA 3. 8 (1998) 72 ALJR 208 at 214.
3 326 Case Notes The duty is to exercise reasonable cark to prevent injury from dangers arising from the structure or condition of premises which are not apparent and are not to be avoided by the exercise of reasonable care on the part of the entrant.' Thus, since the plaintiff knew about and had visited the area before, and since she was intoxicated upon entering the area at night, there was an absence of reasonable care on her part.1 Erecting barriers, lights and warnings would consequently prove futile, as she would have fallen off anyway. In short, she was the author of her own personal injuries. Again, behind this conclusion are some common law principles associated with measuring the scope of the duty owed. Considering the reasonableness of practicable precautions that the authority failed to take is reflective of general considerations as to whether the duty should be refined or negatived. Therefore, Brennan CJ saw both statutory and general law principles as relevant to determining the content and width of the duty of care. But his Honour still focused more so on the statutory approach than the general law approach. IV. The rest of the majority -- the adoption of general principles of negligence Due to the judicial disapprobation of statutory principles to cases of negligence, the rest of the majority (Toohey, Gummow, Kirby and Hayne JJ) discounted any statutory genesis of a duty of care, or at least an intermingling of it with a general duty to take reasonable care. Instead, they proceeded to base liability by way of ordinary principles of negligence applicable to all and not just specific situations. They thus applied the three-stage approach to ascertaining a duty of care: (1) the existence of a sufficiently proximate relationship between both parties; (2) whether falling off the cliff was a real and reasonably foreseeable risk; and (3) whether it was fair, just and reasonable to impose a duty on the Commission. Establishing a duty of care (point 1) was not an issue, since powers of management over the land brought the authority within a relationship of proximity to members of the public.' ' As to what this broad and general duty required of the Commission (point 2) depended largely upon their statutory functions, the nature of the premises and general common sense that some visitors would disregard their own safety. From this, it was clear that the scope of the duty owed was to be no more than that of reasonable care. That is, the Commission was under a general duty of reasonable care to protect visitors against foreseeable risks of injury. This confirmed the test in Nagle v Rottnest lsland ~uthorit)-,,'~ whereby the plaintiff dove from a natural ledge into a Basin, hitting his head on a submerged rock which resulted in quadriplegia. Equipped with statutory powers of control and management of the area, the Rottnest Island Board was held negligent at common law for failing to erect adequate warning signs as to the dangers of the ledge that they knew or ought to have known about. Evidence was provided to the effect that the plaintiff would have been deterred from using the ledge had there been an appropriate warning sign. But can the same have been said about the plaintiff in Romeo? Would the implementation of such precautions as the erection of fences around the area be enough? Or would fencing the entire perimeter of the cliff edge or installing adequate lighting at 9 (1998) 72 ALJR 208 at (1998) 72 ALJR 208 at (1998) 72 ALJR 208 at (1993) 177 CLR 423.
4 Case Notes 327 the site eliminate the small, albeit reasonably foreseeable, risk of someone injuring themselves? The answer to this was no, and was controlled by factual and pragmatic considerations that required a degree of deference to the special nature of the Commission, as well as to the physical circumstances of the cliff that formed a part of its attraction. Heavily underscoring this was Hayne's J observation that 'the duty is not that of an insurer but a duty to act rea~onably,'~%uch duty stopping short of all and any reasonably foreseeable injuries. To explain, since the danger was an obvious and naturally occurring feature (i.e. a cliffedge) and unlike Nagle where the danger was hidden, warning signs and fences would be ineffective if not unreasonable safety precautions, particularly in the absence of prior accidents and complaints concerning the danger of the area.14 As Toohey and Gummow JJ aptly summarized, 'the appellant knew the general area well and the conclusion is inevitable that nevertheless she did proceed to the edge of the cliff.'15 V. The minority -- extending the scope of the duty of care Although supporting the Nagle test, and so imposing a duty to take reasonable care under the general law of negligence, Gaudron and McHugh JJ extended that duty to fencing the area where the accident occurred. Failure to do this meant that the Commission had breached its general duty of care. Close attention was paid to the particular area from which the plaintiff fell, with Gaudron J concluding that it was foreseeable visitors would leave the car-park to admire the views, and McHugh J concluding that the risk of falling at that area was 'more likely to occur than at other parts of the coastline....'16 But lacking in both judgments was recognition of the potent fact that, even if the fence had been built, still the plaintiff would have sustained her injuries due to the extent of knowledge she had about the danger, and the obvious nature of the risk itself. VI. Conclusion 1. Eflect of decision Romeo is authority for the proposition that public authorities are subject to the same general principles of negligence as private individuals. Statutory functions, duties and powers are only relevant to the extent that they act as aids in determining the scope of the general duty of care owed, tempering an otherwise limitless liability. Although Brennan's CJ statutory approach is conceptually different, it appears underpinned by the same considerations as impel the common law approach. This seems to indicate that liability turns more on questions of fact than on distinctions between the two tests. 2. Recent case-law since Romeo Similar to Romeo in its application of common law principles is the recent Supreme Court decision in Scarf v State of Q~eensland.'~ There, the plaintiff sued the local Council and Department of Transport for injuries sustained as a result of diving from a bridge into a channel, an activity which he had enjoyed on a regular basis. Unlike the Council, the Department owed a duty of care to the extent of erecting signs on the bridge that prohibited diving, since their statutory powers extended to controlling the bridge over which pedestrians passed. Similar to Romeo, the plaintiff was familiar with the area; the risk was obvious to any reasonable person; there had been no reports of previous accidents, and 13 (1998) 72 ALJR 208 at (1998) 72 ALJR 208 at 218 per Toohey and Gurnrnow JJ. 15 (1998) 72 ALJR 208 at (1998) 72 ALJR 208 at Unreported - Appeal No 1272 of 1993, 30th October 1998.
5 Case Notes constructing fences on the bridge would interfere with the view of the waterway and beyond. So like Romeo, while a duty of reasonable care was owed, any precautions taken would have proven unreasonable and ineffective. 3. Pragmatic worth of Romeo The common law approach adopted in Romeo is to be commended for its pragmatic value. Besides general considerations of proximity and foreseeability, the reasonableness of taking precautions to safeguard the public appears to be the overriding criterion when establishing whether a duty of care is owed by a statutory authority. What results is the grand concept of fairness between the parties, irrespective of their public or private character. Bearing in mind this balanced approach, it will be interesting to watch for further developments when determining what test applies for the negligent liability of a public authority.
TORTS LAW CASE NOTES
TORTS LAW CASE NOTES LAWSKOOL PTY LTD CONTENTS Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54... 3 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431... 9 Modbury Triangle
More informationRomeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263
Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263 Introduction The recent case of Romeo v Conservation Commission ofthe Northern Territoryl re-engaged the High Court of Australia
More informationSwain v Waverley Municipal Council
[2005] HCA 4 (High Court of Australia) (relevant to Chapter 6, under new heading Role of Judge and Jury, on p 256) In a negligence trial conducted before a judge and jury, questions of law are decided
More informationVicarious Liability: imposed in certain relationships eg. Employee/ Employer
CONCURRENT LIABILITY: VICARIOUS LIABILITY AND INTRODUCTION TO!" NEGLIGENCE Vicarious Liability: imposed in certain relationships eg. Employee/ Employer Vicarious liability may exist if the wrongful act
More informationProfiting from your own mistakes: Common law liability and working directors
Profiting from your own mistakes: Common law liability and working directors Author: Tim Wardell Special Counsel Edwards Michael Lawyers Profiting from your own mistakes: Common law liability and working
More informationTwo elements:! 1. Employer/employee relationship! 2. The tortious conduct took place during the course of the employment.!
TORTS LAW EXAM NOTES [ VICARIOUS LIABILITY ] (if it applies) Imposed on certain relationships (e.g. employer/employee, principal/agent, partnerships) Policy reasons: 1. a person who employs others to advance
More informationREMOTENESS OF DAMAGES
REMOTENESS OF DAMAGES certainly now the rule about liability for the tort of negligence and it is a matter of convenience whether we say that where the damage is not of this kind there may be a breach
More informationMOTORIST DROWNS IN RETENTION POND ADJACENT TO HIGHWAY
MOTORIST DROWNS IN RETENTION POND ADJACENT TO HIGHWAY James C. Kozlowski, J.D., Ph.D. 1988 James C. Kozlowski Based upon conversations with many park and recreation administrators, it appears that there
More informationNature Conservation and Other Legislation Amendment Bill (No. 2) 2013
13 September 2013 Ms Sue Cawcutt Research Director Health and Community Services Committee Parliament House Brisbane QLD 4000 hcsc@parliament.qld.gov.au Dear Research Director Thank you for providing Queensland
More informationCase study OLA Why was his claim under OLA 1957 rejected? 2. What was the alternative claim? 3. What did the first court decide?
Case study OLA 1957 In Poppleton v Trustees of the Portsmouth Youth Activities Committee 2008, a man fell and was badly injured while at an indoor climbing premises. He claimed under both the OLA 1957
More informationDISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT DELORES ARP, Appellant, v. WATERWAY EAST ASSOCIATION, INC., a Florida non-profit corporation, W.E. ASSOCIATION, INC., a Florida non-profit
More informationNEGLIGENCE. All four of the following must be demonstrated for a legal claim of negligence to be successful:
NEGLIGENCE WHAT IS NEGLIGENCE? Negligence is unintentional harm to others as a result of an unsatisfactory degree of care. It occurs when a person NEGLECTS to do something that a reasonably prudent person
More informationNegligence Case Law and Notes
Negligence Case Law and Notes Subsections Significance Case Principle Established Duty of Care Original Negligence case Donoghue v Stevenson [1932] ac 562 The law takes no cognisance of carelessness in
More informationmatter of fact A Breach of Duty: Identify the Risks
Table of Contents Breach of Duty:... 2 Inherent Risk... 4 Obvious Risk... 4 Causation... 4 Remoteness... 6 Defences to Negligence... 6 Volens Contributory negligence Unlawful conduct Statute of Limitation
More informationCASE NOTE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES V DEDERER *
CASE NOTE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES V DEDERER * NEGLIGENCE AND THE EXUBERANCE OF YOUTH PAM STEWART AND GEOFF MONAHAN [This case note examines the decision of the High Court of Australia
More informationNegligence: Approaching the duty of care
Negligence: Approaching the duty of care Introduction: Elements of negligence: - The defendant owed the plaintiff a duty of care. - That the duty must have been breached. - That breach must have caused
More informationTWO NOTES ON RECENT DEVELOPMENTS CONCERNING 'PROXIMITY' IN NEGLIGENCE ACTIONS PROXIMITY AND NEGLIGENT ADVICE THE SAN SEBASTIAN CASE
TWO NOTES ON RECENT DEVELOPMENTS CONCERNING 'PROXIMITY' IN NEGLIGENCE ACTIONS PROXIMITY AND NEGLIGENT ADVICE THE SAN SEBASTIAN CASE Alex Bruce* 1. Introduction In November 1986, the High Court handed down
More informationLAW REVIEW JUNE 1992 RAINWATER ACCUMULATED IN CLOSED CITY POOL RAISES ATTRACTIVE NUISANCE RISK
RAINWATER ACCUMULATED IN CLOSED CITY POOL RAISES ATTRACTIVE NUISANCE RISK James C. Kozlowski, J.D., Ph.D. 1992 James C. Kozlowski The March 1992 law column entitled "Swimming Pool Not 'Attractive Nuisance'
More informationClimbing & Occupiers Liability. reassurance for landowners, managers & users
Climbing & Occupiers Liability reassurance for landowners, managers & users Climbing & Occupiers Liability Introduction Many owners and occupiers of land are happy to give access for rock climbing but
More informationNOVEMBER 2010 LAW REVIEW MUNICIPAL IMMUNITY FOR FAILED 911 SURF RESCUE
MUNICIPAL IMMUNITY FOR FAILED 911 SURF RESCUE James C. Kozlowski, J.D., Ph.D. 2010 James C. Kozlowski In the case of Popow v. Town of Stratford (Dist. Conn. 2/12/2010), the administrator of the estate
More information[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Torchik v. Boyce, Slip Opinion No Ohio-1248.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Torchik v. Boyce, Slip Opinion No. 2009-Ohio-1248.] NOTICE This slip opinion is subject to formal revision before
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS JOSEPH KOSMALSKI and KATHY KOSMALSKI, on behalf of MARILYN KOSMALSKI, a Minor, FOR PUBLICATION March 4, 2004 9:05 a.m. Plaintiffs-Appellants, v No. 240663 Ogemaw Circuit
More informationStrict Liability and Product Liability PRODUCT LIABILITY WARRANTY LAW
Strict Liability and Product Liability PRODUCT LIABILITY The legal liability of manufacturers, sellers, and lessors of goods to consumers, users and bystanders for physical harm or injuries or property
More informationAnglo-American Contract and Torts. Prof. Mark P. Gergen. 11. Scope of Liability (Proximate Cause)
Anglo-American Contract and Torts Prof. Mark P. Gergen 11. Scope of Liability (Proximate Cause) 1) Duty/Injury 2) Breach 3) Factual cause 4) Legal cause/scope of liability 5) Damages Proximate cause Duty
More informationLAWATYOURFINGERTIPS NO LIABILITY WHERE FRIEND AGREED TO HELP WITH ROOF REPAIR AND FELL OFF HOMEOWNERS ROOF:
LAWATYOURFINGERTIPS NO LIABILITY WHERE FRIEND AGREED TO HELP WITH ROOF REPAIR AND FELL OFF HOMEOWNERS ROOF: Friend agreed to help homeowner repair roof. Friend was an experienced roofer. The only evidence
More informationQuestion 1. Under what theory or theories might Paul recover, and what is his likelihood of success, against: a. Charlie? b. KiddieRides-R-Us?
Question 1 Twelve-year-old Charlie was riding on his small, motorized 3-wheeled all terrain vehicle ( ATV ) in his family s large front yard. Suddenly, finding the steering wheel stuck in place, Charlie
More informationSUPREME COURT OF QUEENSLAND
SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: No 3696 of 2018 DIVISION: PROCEEDING: ORIGINATING COURT: Midson Construction (Qld) Pty Ltd & Ors v Queensland Building and Construction Commission
More informationLAW REVIEW JANUARY 1987 MUST LANDOWNER PROTECT MOONING REVELER FROM HIMSELF? James C. Kozlowski, J.D., Ph.D James C.
MUST LANDOWNER PROTECT MOONING REVELER FROM HIMSELF? James C. Kozlowski, J.D., Ph.D. 1987 James C. Kozlowski The very successful 1986 Congress for Recreation and Parks in Anaheim, California is history.
More informationOCTOBER 2012 LAW REVIEW OBVIOUS TREE HAZARD ON PARK SLEDDING HILL
OBVIOUS TREE HAZARD ON PARK SLEDDING HILL James C. Kozlowski, J.D., Ph.D. 2012 James C. Kozlowski Under traditional principles of landowner liability for negligence, the landowner generally owes a legal
More informationChecklist XX - Sources of Municipal and Personal Liability and Immunity. Subject matter MA COTA Maintenance of highways and bridges
Checklist XX - Sources of Municipal and Personal Liability and Immunity See also extensive case law in this volume under the sections identified below, and in the introduction to Part XV. A. Public highways
More informationSIMPLE'APPLICATION'TESTS' 39'
BREACH' WHO'IS'THE'REASONABLE'PERSON' FORESEEABILITY' CAUSATION'(CLA)' CAUSATION'(COMMON'LAW)' NOVUS'ACTUS' REMOTENESS' DEFENCES'TO'NEGLIGENCE' VICARIOUS'LIABILITY' NON?DELEGABLE'DUTY' BREACH'OF'STATUTORY'DUTY'
More informationRECONCILING DUTY OF CARE AND BREACH Justice David Ashley Court of Appeal Supreme Court of Victoria
RECONCILING DUTY OF CARE AND BREACH Justice David Ashley Court of Appeal Supreme Court of Victoria 1 In Australia, the common law s contribution to the imperial march of the tort of negligence, in the
More informationCalifornia Bar Examination
California Bar Examination Essay Question: Torts And Selected Answers The Orahte Group is NOT affiliated with The State Bar of California PRACTICE PACKET p.1 Question Autos, Inc. manufactures a two-seater
More informationCustomer will bring an action against Businessman under a negligence theory.
Customer (C) v. Businessman (B) Customer will bring an action against Businessman under a negligence theory. Negligence requires a Breach of a Duty that Causes Damages. A. Duty B had a duty to drive as
More informationCivil Liability Amendment (Personal Responsibility) Act 2002 No 92
New South Wales Civil Liability Amendment (Personal Responsibility) Act 2002 No 92 Contents Page 1 Name of Act 2 2 Commencement 2 3 Amendment of Civil Liability Act 2002 No 22 2 4 Consequential repeals
More informationFEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS (1) WHETHER ALLEGED NEGLIGENT CONDUCT INVOLVES AN ELEMENT OF JUDGMENT OR CHOICE.
FEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS LIMITED IMMUNITY FEDERAL TORT CLAIMS ACT DISCRETIONARY FUNCTION IMMUNITY: 2 PRONG TEST (1) WHETHER ALLEGED NEGLIGENT CONDUCT INVOLVES AN ELEMENT
More information~~~~~ Week 6. Element of a Crime
~~~~~ Week 6 Element of a Crime PHYSICAL ELEMENTS OF A CRIME (AR) Physical elements may refer to: o A specified form of conduct such as: An act; An omission; or There is a CL duty not to cause harm to
More informationIngles v. The Corporation of the City of Toronto Decision of the Supreme Court of Canada dated March 2, 2000
Ingles v. The Corporation of the City of Toronto Decision of the Supreme Court of Canada dated March 2, 2000 (City Council at its regular meeting held on October 3, 4 and 5, 2000, and its Special Meetings
More informationThird District Court of Appeal State of Florida, July Term, A.D. 2007
Third District Court of Appeal State of Florida, July Term, A.D. 2007 Opinion filed January 2, 2008. Not final until disposition of timely filed motion for rehearing. Nos. 3D06-2329 & 3D06-102 Lower Tribunal
More informationSafety & Liability Does pursuit of safety expose an agency to liability? liability for action liability for inaction liability for trying something ne
Liability and Complete Streets Safety & Liability Does pursuit of safety expose an agency to liability? liability for action liability for inaction liability for trying something new Safety Driven by Profession
More informationCaltex Refineries (Qld) Pty Limited v Stavar
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 Supreme Court of New South Wales, Court of Appeal (This case comes after Graham Barclay Oysters Pty Ltd v Ryan; Ryan v
More informationTHE FIRST CONTESTED MAINLAND NATIVE TITLE DETERMINATION
(2002) 21 AMPLJ Risk v Northern Territory of Australia 187 land to form part of that Aboriginal land, or for a "buffer zone" as the Woodward Royal Commission had recommended. Rather, provision was made,
More informationDEVELOPMENTS IN JUDICIAL REVIEW IN THE CONTEXT OF IMMIGRATION CASES. A Comment Prepared for the Judicial Conference of Australia's Colloquium 2003
DEVELOPMENTS IN JUDICIAL REVIEW IN THE CONTEXT OF IMMIGRATION CASES A Comment Prepared for the Judicial Conference of Australia's Colloquium 2003 DARWIN - 30 MAY 2003 John Basten QC Dr Crock has provided
More informationANSWER A TO QUESTION 3
Question 3 Roofer contracted with Hal to replace the roof on Hal s house. The usual practice among roofers was to place tarpaulins on the ground around the house to catch the nails and other materials
More informationCITATION: Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88
NEW SOUTH WALES LAND AND ENVIRONMENT COURT CITATION: Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88 PARTIES: APPLICANT (40344 of 2009) Byron Shire Council RESPONDENTS (40344
More informationDECEMBER 2016 LAW REVIEW FATEFUL DIVE INTO "CLOSED" PARK POND POOL
FATEFUL DIVE INTO "CLOSED" PARK POND POOL James C. Kozlowski, J.D., Ph.D. 2016 James C. Kozlowski There is generally no negligence liability for injuries resulting from conditions which should have been
More informationLAW REVIEW MAY 1997 NO DUTY TO KEEP PREMISES REASONABLY SAFE FOR ADULT TRESPASSERS. James C. Kozlowski, J.D., Ph.D James C.
NO DUTY TO KEEP PREMISES REASONABLY SAFE FOR ADULT TRESPASSERS James C. Kozlowski, J.D., Ph.D. 1997 James C. Kozlowski Landowners generally owe a very limited legal duty of care to adult trespassers. Specifically,
More informationLAW REVIEW JUNE 1989 PLAYGROUND SUPERVISION QUESTIONED IN EYE INJURY CASES
PLAYGROUND SUPERVISION QUESTIONED IN EYE INJURY CASES James C. Kozlowski, J.D., Ph.D. 1989 James C. Kozlowski This month's column presents two court decisions which examine various aspects of playground
More informationClient Update June 2008
Highlights Relevance Of This Update Introduction Facts Of The Case High Court Ruling...2 The Decision Of The Court Of Appeal Foreseeability Of Damage Proximity The Class Of Persons Whose Claims Should
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS JOHN DRUMM, Plaintiff-Appellant, UNPUBLISHED March 22, 2005 v No. 252223 Oakland Circuit Court BIRMINGHAM PLACE, d/b/a PAUL H. LC No. 2003-047021-NO JOHNSON, INC., and
More informationPRACTICAL JUSTICE AND PROCEDURAL FAIRNESS
Paper for Delivery at the PAVE Peace Group delivered at Sydney on 23 December 2003 by Mark A Robinson, Barrister PRACTICAL JUSTICE AND PROCEDURAL FAIRNESS In this paper, I describe the legal concept of
More informationSIMPLE'APPLICATION'TESTS' 39'
BREACH' WHO'IS'THE'REASONABLE'PERSON' FORESEEABILITY' CAUSATION'(CLA)' CAUSATION'(COMMON'LAW)' NOVUS'ACTUS' REMOTENESS' DEFENCES'TO'NEGLIGENCE' VICARIOUS'LIABILITY' NON?DELEGABLE'DUTY' BREACH'OF'STATUTORY'DUTY'
More informationIN THE SUPREME COURT OF BRITISH COLUMBIA
Date of Release: May 1, 1992 No. 17176 Kamloops Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) JACQUELYN BARBARA DAVIDSON ) ) REASONS FOR JUDGMENT PLAINTIFF ) ) OF THE HONOURABLE AND: )
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS FATEN YOUSIF, Plaintiff-Appellant, UNPUBLISHED August 16, 2005 v No. 246680 Macomb Circuit Court WALLED MONA, LC No. 02-001903-NO Defendant-Appellee. ON REMAND Before:
More informationPresent: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee, JJ., and Compton, S.J.
Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee, JJ., and Compton, S.J. CITY OF LYNCHBURG OPINION BY SENIOR JUSTICE A. CHRISTIAN COMPTON v. Record No. 042069 June 9, 2005 JUDY BROWN FROM
More informationCASE NO. 1D Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JOHN R. FERIS, JR., v. Appellant, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D12-4633
More informationWhat s news in construction law 16 June 2006
2 What s news in construction law 16 June 2006 Warranties & indemnities the lessons from Ellington & Tempo services For as long as contracts have existed, issues have arisen in relation to provisions involving
More informationPASTORAL AND GRAZING LEASES AND NATIVE TITLE
PASTORAL AND GRAZING LEASES AND NATIVE TITLE Graham Hiley QC The background jurisprudence in Mabo No 2, Wik and the Native Title Amendment Act 1998 concerning the extinguishment of native title on leases,
More informationLiability for Injuries Caused by Dogs. Jonathan Owen
Liability for Injuries Caused by Dogs Jonathan Owen Introduction 1. This article addressed the liability for injuries caused by dogs, such as when a person is bitten, or knocked over by a dog. Such cases,
More informationTopic Pleading and Joinder of claims and parties, Representative and Class Actions 1) Res Judicata (Colbran )
WEEK 3 Topic Pleading and Joinder of claims and parties, Representative and Class Actions 1) Res Judicata (Colbran 363-370) Res judicata is a type of plea made in court that precludes the relitgation of
More informationImmigration Law Conference February 2017 Panel discussion Judicial Review: Emerging Trends & Themes
Immigration Law Conference February 2017 Panel discussion Brenda Tronson Barrister Level 22 Chambers btronson@level22.com.au 02 9151 2212 Unreasonableness In December, Bromberg J delivered judgment in
More informationGeorgia Law Impacting Agritourism Operations
Georgia Law Impacting Agritourism Operations 2017 Georgia Agritourism Annual Conference Tifton, Georgia February 28, 2017 Presented by: Joel L. McKie Hall Booth Smith, P.C. Why Does It Matter? A farmer
More informationYanner v Eafon - The High Court's Next Opportunity to
Yanner v Eafon - The High Court's Next Opportunity to Consider the Extinguishment of Native Title Joanne Segger B Econ (Qld), LLB Student, TC Beirne School of Law, The University of Queensland. In the
More informationCOASTAL ACCESS: Summary of relevant duties and liabilities. Introduction
COASTAL ACCESS: Summary of relevant duties and liabilities. The guidance contained in this publication has been developed by the CLA with input from Natural England and Defra. This guidance has no official
More informationAnswer A to Question 10. To prevail under negligence, the plaintiff must show duty, breach, causation, and
Answer A to Question 10 3) ALICE V. WALTON NEGLIGENCE damage. To prevail under negligence, the plaintiff must show duty, breach, causation, and DUTY Under the majority Cardozo view, a duty is owed to all
More informationThird District Court of Appeal State of Florida
Third District Court of Appeal State of Florida Opinion filed May 4, 2016. Not final until disposition of timely filed motion for rehearing. No. 3D14-1874 Lower Tribunal No. 13-20042 Patricia Grimes, Appellant,
More information[Cite as Morgan v. Kissel Bros.Shows, Inc., 2001-Ohio-2411.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY APPEARANCES
[Cite as Morgan v. Kissel Bros.Shows, Inc., 2001-Ohio-2411.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY Jennifer Morgan, et al., : : Plaintiffs-Appellants, : : Case No. 00CA44
More informationPersonal Responsibility: Recent Developments in the New South Wales Courts
Personal Responsibility: Recent Developments in the New South Wales Courts Limitation Act Developments with the Concept of Discoverability Preamble: In late 1990s and the early years of this century the
More informationTORTS SUMMARY LAWSKOOL PTY LTD
SUMMARY LAWSKOOL PTY LTD CONTENTS INTRODUCTION TO NELIGENCE 7 DUTY OF CARE 8 INTRODUCTION 8 ELEMENTS 10 Reasonable foreseeability of the class of plaintiffs 10 Reasonable foreseeability not alone sufficient
More informationLegal Liability in Adventure Tourism
Legal Liability in Adventure Tourism Ross Cloutier Bhudak Consultants Ltd. www.bhudak.com The Legal System in Canada Common Law Records creating a foundation of cases useful as a source of common legal
More informationIN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 18, 2006 Session
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 18, 2006 Session RUBY POPE v. ERVIN BLAYLOCK, ET AL. A Direct Appeal from the Circuit Court for Shelby County No. CT-003735-03 The Honorable James
More informationIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON FRANCESCA GIUSTI, a single ) person, ) No. 66677-1-I Appellant, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION ) CSK AUTO, INC., an Arizona ) Corporation
More informationThe purpose of the law of torts, at least for those
Justice Connolly examines the flexib ility of to rt law and questions the need for reform. The purpose of the law of torts, at least for those of us introduced to the subject via successive editions of
More informationDAMAGES FOR M ~ ADISTRESS DAMAGES FOR MENTAL DISTRESS IN CONTRACT
DAMAGES FOR M ~ ADISTRESS L IN coi?l'ract 111 DAMAGES FOR MENTAL DISTRESS IN CONTRACT Dean ~ambovski* A long established principle under common law is that damages are not recoverable for mental distress
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS WILLIAM LUCKETT IV, a Minor, by his Next Friends, BEVERLY LUCKETT and WILLIAM LUCKETT, UNPUBLISHED March 25, 2014 Plaintiffs-Appellants, v No. 313280 Macomb Circuit Court
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS MARSHA PEREZ, Plaintiff-Appellant, UNPUBLISHED April 12, 2005 v No. 250418 Wayne Circuit Court STC, INC., d/b/a MCDONALD S and STATE LC No. 02-229289-NO FARM MUTUAL AUTOMOBILE
More informationNegligence 1. Duty of Care 2. Breach of duty of care p 718 c) p 724
Negligence 1. Duty of Care Donoghue v Stevenson [1932] AC 562 - a duty of care could exist in any situation where loss, damage or injury to one party was reasonable foreseeable (foreseeable harm) - the
More informationIN THE HIGH COURT OF JUSTICE JOHN LEWIS
ST VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO.88 OF 1999 BETWEEN: FITZROY MC KREE Plaintiff and JOHN LEWIS Appearances: Paula David for the Plaintiff John Bayliss Frederick for
More informationBREACH OF DUTY. CLA s 5C outlines some relevant principles in breach of duty:
BREACH OF DUTY Occurs when the defendant s conduct does not meet the objective standard of care of the reasonable person. A different standard of care can be applied based on age (McHale v Watson), as
More information449/786 visa offers for 866 applicants
449/786 visa offers for 866 applicants Since 3 February 2014 some people who came by boat to Australia have had their applications for an 866 permanent protection visa refused on the grounds of Migration
More informationLegal Brief. Liability for Injuries on Public Property
Legal Brief Liability for Injuries on Public Property By Roger Huebner, Deputy Executive Director & General Counsel; Brian Day, Staff Attorney; & Jerry Zarley, Paralegal With the summer season in full
More informationTopic 10: Implied Political Freedoms
Topic 10: Implied Political Freedoms Implied Freedom of Political Communication P will challenge the validity of (section/act) on the grounds that it breaches the implied freedom of political communication
More informationTorts Rose Vassel 2012 TORTS LAWS1061. Rose VASSEL
TORTS LAWS1061 Rose VASSEL 1 DUTY OF CARE CATEGORIES Because negligence is an action on the case, the kind of harm is the most significant characteristic. Damage is the gist of the action and must be proved.
More informationJULY 2002 NRPA LAW REVIEW SECURITY QUESTIONED IN STADIUM PARKING LOT MISHAP AT MUSIC FESTIVAL. James C. Kozlowski, J.D., Ph.D James C.
SECURITY QUESTIONED IN STADIUM PARKING LOT MISHAP AT MUSIC FESTIVAL James C. Kozlowski, J.D., Ph.D. 2002 James C. Kozlowski In the case of Florman v. City of New York, No. 497 (N.Y.App.Div. 05/07/2002),
More informationGerald Tucker et ux. v. Charles Shoemake d/b/a Rio Vista Plaza, No. 120, September Term, 1998.
Gerald Tucker et ux. v. Charles Shoemake d/b/a Rio Vista Plaza, No. 120, September Term, 1998. [Negligence - Fireman's Rule - Trailer Park Premises. Police officer injured by fall into below ground vault
More informationOBVIOUS RISK & DANGEROUS RECREATIONAL ACTIVITY (14 November 2012)
OBVIOUS RISK & DANGEROUS RECREATIONAL ACTIVITY (14 November 2012) INTRODUCTION 1. This topic concerns Divisions 4 and 5, Part 1Civil Liability Act 2002 entitled respectively Assumption of Risk and Recreational
More informationMARK SCHEME for the October/November 2013 series 9084 LAW. 9084/42 Paper 4, maximum raw mark 75
CAMBRIDGE INTERNATIONAL EXAMINATIONS GCE Advanced Level MARK SCHEME for the October/November 2013 series 9084 LAW 9084/42 Paper 4, maximum raw mark 75 This mark scheme is published as an aid to teachers
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS ESTATE OF AVA CAMERON TAYLOR, by AMY TAYLOR, Personal Representative, UNPUBLISHED April 13, 2017 Plaintiff-Appellant, v No. 331198 Genesee Circuit Court DARIN LEE COOLE
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS DAVID SMITH, Personal Representative of the Estate of JOSEPH SMITH, Deceased, UNPUBLISHED June 22, 2001 Plaintiff-Appellant, v No. 219447 Wayne Circuit Court ROBERT S
More informationTHE LAW PROFESSOR TORT LAW ESSAY SERIES ESSAY QUESTION #3 MODEL ANSWER
THE LAW PROFESSOR TORT LAW ESSAY SERIES ESSAY QUESTION #3 MODEL ANSWER Carol stopped her car at the entrance to her office building to get some papers from her office. She left her car unlocked and left
More informationCalifornia Bar Examination
California Bar Examination Essay Question: Torts And Selected Answers The Orahte Group is NOT affiliated with The State Bar of California PRACTICE PACKET p.1 Question Manufacturer designed and manufactured
More informationWeek 2(a) Trade and Commerce
Week 2(a) Trade and Commerce Section 51(i) Commonwealth Constitution: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth
More informationPage Ohio St.3d 196 (Ohio 2011) 957 N.E.2d 3, 2011-Ohio HUFF et al., Appellees,
Page 196 130 Ohio St.3d 196 (Ohio 2011) 957 N.E.2d 3, 2011-Ohio-5083 HUFF et al., Appellees, v. FIRSTENERGY CORP. et al.; Ohio Edison Company et al., Appellants. No. 2010-0857. Supreme Court of Ohio. October
More informationCivil Law is known as Private Law. Regulates disputes between individuals; between parties; and between individuals and parties.
Civil Disputes Civil Law is known as Private Law. Regulates disputes between individuals; between parties; and between individuals and parties. The main purpose of Civil Law is to compensate victims. Civil
More informationNEGLIGENCE. Wrongs Act 1958 (Vic) s43 Negligence means failure to exercise reasonable care.
NEGLIGENCE Wrongs Act 1958 (Vic) s43 Negligence means failure to exercise reasonable care. Negligence is; - The failure to do something that a reasonable person would do (omission), or - Doing something
More informationTHE WILD GAME OF OCCUPIERS LIABILITY. Occupiers, Cyclists, and One-Eyed Jacks
Posted on: February 13, 2007 THE WILD GAME OF OCCUPIERS LIABILITY Occupiers, Cyclists, and One-Eyed Jacks February 13, 2007 David Hay Originally presented to the North Shore Bike Group Introduction I believe
More informationPRELIMINARIES 1 1. Involving public authority 1 2. Nature of harm 1 A. Bodily injury 1 B. Mental harm: psychological or psychiatric injury (WA 1958 s
PRELIMINARIES 1 1. Involving public authority 1 2. Nature of harm 1 A. Bodily injury 1 B. Mental harm: psychological or psychiatric injury (WA 1958 s 67) 1 C. Property damage 2 D. Pure economic loss 2
More informationIN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM v. Case No. 5D02-691
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003 DEBBIE CARTER, ETC., ET AL, Appellant, v. Case No. 5D02-691 CAPRI VENTURES, INC., ETC., ET AL, Appellee. Opinion
More informationIllinois Official Reports
Illinois Official Reports Appellate Court Bulduk v. Walgreen Co., 2015 IL App (1st) 150166 Appellate Court Caption SAIME SEBNEM BULDUK and ABDULLAH BULDUK, Plaintiffs-Appellants, v. WALGREEN COMPANY, an
More informationMAY 2007 LAW REVIEW PARK VISITOR TRESPASSER AFTER DARK
PARK VISITOR TRESPASSER AFTER DARK James C. Kozlowski, J.D., Ph.D. 2007 James C. Kozlowski From a liability perspective, does it matter whether the injury occurred at two in the afternoon or two in the
More information