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 124. 2 ( 1998) 72 ALJR 208. 3 Note 1 at 128-9. 4 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).
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 481. 7 Pyrenees Shire Council v Day [I9981 HCA 3. 8 (1998) 72 ALJR 208 at 214.
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 214. 10 (1998) 72 ALJR 208 at 216. 11 (1998) 72 ALJR 208 at 239. 12 (1993) 177 CLR 423.
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 240. 14 (1998) 72 ALJR 208 at 218 per Toohey and Gurnrnow JJ. 15 (1998) 72 ALJR 208 at 219. 16 (1998) 72 ALJR 208 at 225. 17 Unreported - Appeal No 1272 of 1993, 30th October 1998.
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.