RECONCILING 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 context of personal injury claims, continued until May 2001. Progressively, the High Court demolished old artificialities - which is not to say that such artificialities did not have a substantial lineage. The discrete rules pertaining to occupiers liability, liability for the escape of dangerous substances and liability of highway authorities were subsumed within the ordinary principles of negligence. 1 But the end point of the march, Brodie and anor v Singleton Shire Council, 2 also marked the beginning of a retreat. The former imperial march may now be likened to the retreat of the Grand Army from the gates of Moscow. There have been any number of candidates for the role of Marshall Kutuzov. 2 What I have just said about the march of the tort of negligence, in the period up to May 2001, is not to say that its progress was without difficulty. Particular problems arose, I refer to personal injury claims, with respect to the liability of public and statutory authorities, and with respect to liability for nervous shock. Most often, in the problem areas, the key question was whether the particular circumstances gave rise to a duty of care. Sometimes an issue of breach arose. 3 One matter was not in doubt, and so remains. Subject to there being a dispute as to the relevant facts, it is a question of law whether, in given circumstances, a duty of care exists; 3 but it is for the trier of fact to decide whether a duty has been breached. Historically, the task has been simplified because in some factual circumstances a 1 As to occupiers liability, see Hackshaw v Shaw (1984) 155 CLR 614 and Zaluzna v Australia Safeway Stores Pty Ltd (1987) 162 CLR 479. As to the escape of dangerous substances, see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. As to the liability of highway authorities, see Brodie and anor v Singleton Shire Council (2001) 206 CLR 512. The tide was running very strongly in the 1980s and 1990s. As counsel for the successful plaintiffs in the occupiers liability cases of Hackshaw and Zaluzna I can confidently say that my participation made not one whit of difference to the outcome; or, put another way, that at least it did not deny the plaintiffs success. 2 (2001) 206 CLR 512. 3 See, eg, Jaensch v Coffey (1984) 155 CLR 549 at 581-2 per Deane J. 1

duty of care has been discerned from the nature of the relationship of the parties for example, the duty owed by one road user to another, by employer to employee, by teacher to pupil, by occupier to entrant, by medical practitioner to patient. Nonetheless, the more that the critical issue is seen as being whether a duty of care is owed, the greater is the practical ability of the Court to decide the substantial outcome of litigation. 4 Brodie, the last of the line of cases in which what I have called old artificialities were swept away, was on one view also the first case in which, in modern times, the circumstances in which a duty of care would arise in a personal injuries case were delimited. Whether that was the effect of the decision is an aspect of Justice Beazley s paper. In Victoria, three Court of Appeal decisions, the last of which was Moyne Shire Council v Pearce 4 applied Brodie in accordance with this statement by Chernov JA 5 : A road authority in the position of the [Defendant] does not owe a duty to a user of a footpath (in which I include a surface used as a footpath) to prevent or eliminate hazards in it merely because it is reasonably foreseeable that they might result in injury being suffered by the user. Councils and the like bodies owe such a duty to ordinary pedestrians who take reasonable care for their own safety. 6 5 Whether or not Brodie should be so understood, it marked a distinct shift in the trend of High Court authority. Thereafter, in several contexts, a notion of personal responsibility has been made relevant to the question whether a duty of care arose. The way in which it has been made relevant to duty has not always been the same. Nor has it been made relevant to duty in every situation. Sometimes it has been made relevant to breach. 6 It is this development, and its implications particularly for trial judges, about which I will comment in a few moments. But first I should note that the particular 4 [2004] VSCA 246. 5 At [9] in Moyne Shire. 6 See also Burwood Council v Byrnes [2002] NSWCA 343; Hastings Council v Giese [2003] NSWCA 178; Boroondara Council v Cattanach [2004] VSCA 139; Greater Shepparton City Council v Davis [2004] VSCA 140. 2

development is only a fraction of what has been described as the reform of the law of negligence in recent years; reform being a word which calls to mind Lord Palmerston s famous remark: Reform. Reform. Aren t things bad enough already. 7 It is beyond the scope of my remarks to describe the raft of legislative changes which have been affected. But whatever provoked them, their effect does not sit uncomfortably with recent emphasis upon personal responsibility. That is, vigorous and repeated attempts by politicians of all persuasions to reduce the incidence of personal injuries claims, and to reduce the quantum of damages in successful claims, sit comfortably with the enunciation of a principle the effect of which is, or may be, to deny liability altogether in some cases where previously the outcome would have been resolved by application of the principle of contributory negligence. 7 Although the attempts of which I speak have been most obvious in recent years, fuelled by defendants groups 8 which complained about the unavailability or excessive cost of indemnity insurance, the genesis of the legislative response to the perceived problem stretches back, in my own State, 20 years. I have in mind the Accident Compensation Act 1985 and the Transport Accident Act 1986. So, even whilst common law development of the tort of negligence was ongoing, the beginnings of the recent reforms can be seen. Indeed, I recall that in 1989, shortly before I was appointed to the Court, I advised the Victorian Government on proposed amendments to the Accident Compensation Act. I was surprised though I should not have been to find that the responsible department was Treasury; and that the central question was how to depress the cost of the accident compensation system; not how to ensure that workers and their dependants were adequately compensated. 8 But that was a digression, just as it is a digression to observe that in the welter of complaint about the excessive cost of meeting personal injuries claims there was a steady focus upon the certain fact that insurance premiums had greatly escalated at about the turn of this century, and the fact that indemnity insurance was in some 7 Another version substitutes change for reform. 8 Most notably statutory bodies, voluntary associations and the medical profession. 3

instances unobtainable; and that there was an absence of focus upon the question whether the level of premiums was justifiable. The collapse of HIH was noted. Reference was made to its having aggressively underpriced in various areas of insurance in order to increase market share. Little if anything was said about the business impropriety of what it did, or the criminal conduct of its senior people. The terms of reference of the Commonwealth enquiry which led to the September 2002 Review of the Law of Negligence 9 may be said to exemplify this approach. Each term had as its end point limitation of liability or limitation of damages. 9 The Review deriving from the enquiry shows the way in which personal responsibility was perceived as a means of limiting liability. 10 The Panel sees its task as being to recommend changes that impose a reasonable burden of responsibility on individuals to take care of others and to take care of themselves, consistently with the assumption inherent in the first paragraph of the Terms of Reference that the present state of the law imposes on people too great a burden to take care of others and not enough of a burden to take care of themselves. 10 The perception that emphasis upon personal responsibility could achieve a limiting effect upon claims was not just the preserve of politicians. The Chief Justice of New South Wales, in a series of extra-judicial speeches which began, I think, with Negligence: The Last Outpost of the Welfare State 11 emphasised what he perceived to be the unreasonable lengths to which imposition of liability had extended, extension to a point at which senior judges had expressed alarm. He proposed that the Courts, by principle-driven reform, could right what had gone wrong; that is, without the need for multiple, distracting, and inconsistent, legislative reforms. In that context, he noted, inter alia, increased emphasis given to the autonomy of the individual; and the desirability of revisiting the undemanding nature of the foreseeability test. 9 The Terms were agreed in by the Commonwealth, State and Territory Ministers. 10 Although in the report itself there was no general recommendation that mirrored the pertinent outcome in Brodie. 11 (2002) 76 ALJR 432. 4

11 His Honour s contribution to discussion continues. As recently as 14 September 2005 he delivered a paper entitled Negligence: Is Recovery for Personal Injury too Generous?, in which he observed that The previously dominant idea that any personal failing is not your fault, that everyone can be categorised as a victim, has receded. The task is to restore an appropriate balance between personal responsibility for one s own conduct and social expectations of proper compensation and care. He went on to say that There are, of course, limits to the extent to which personal responsibility can operate. It is not appropriate to, in effect, restore the old rule that contributory negligence is a defence. 12 His Honour s last-mentioned remark takes me back to the problem, as some at least see it, of reconciling duty of care and breach. 13 To set the problem in context, I think it is necessary to identify the circumstances in which the High Court has relied upon personal responsibility to deny the existence of a duty of care; and to identify also situations in which personal responsibility has not been called in aid. 14 In Modbury Triangle 12 the occupier was held not to owe a duty of care to the plaintiff who had been injured by the criminal behaviour of third parties on its land. The decision did not turn upon personal responsibility of the plaintiff. No issue of personal responsibility could have arisen on the facts of the case. 15 In Agar v Hyde, 13 injured rugby players contended that the members of the controlling board had owed them a duty to monitor the operation of the rules of the game to ensure that they did not provide for circumstances where risks of serious injuries would be taken unnecessarily. It was held that no such duty existed. Personal responsibility was called in aid, in a manner reminiscent of voluntary 12 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. 13 (2000) 201 CLR 552. 5

assumption of risk. 14 16 Next, the plaintiffs in each of Rosenberg v Percival 15 and Graham Barclay Oysters Pty Ltd v Ryan and ors 16 failed. The decision in the former case turned on breach. The decision in the latter case, so far as it concerned the State of New South Wales and the local council, depended on absence of duty. Personal responsibility was not relevant to the outcome. 17 New South Wales v Lepore 17 was another case in which a plaintiff failed at the duty level. But, as with Modbury Triangle, the formulation of the duty of care in the context of a relationship where a duty of care had historically been said to exist did not depend upon any notion of personal responsibility. That concept was not relevant on the facts of the case. 18 In Cole v South Tweed Heads Ruby Football Club Ltd, 18 the very intoxicated plaintiff, injured when struck by motor vehicle, sued the leagues club at which she had drunk to excess. She claimed that the respondent had owed her a duty to protect her from harm in consequence of her having become intoxicated. A majority of the Court 19 held that her claim failed. Personal responsibility was to some extent called in aid, although the basis of the majority judgments was not the same. 19 Gleeson CJ decided the matter at the duty level. The respondent, he said, had owed some duty to the appellant; but not the duty alleged: The consequence of the appellant s argument... involve(s)... an unacceptable shifting of responsibility for personal choice. 20 20 So also, Callinan J held that no duty as contended had been owed. 21 Gummow and Hayne JJ, on the other hand, found it unnecessary to decide the duty 14 Per Gaudron, McHugh, Gummow and Hayne JJ at 583-584 [90]; and per Callinan J at 600-601 [127]. 15 (2001) 205 CLR 434. 16 (2002) 211 CLR 540. 17 (2003) 212 CLR 511. 18 (2004) 217 CLR 469. 19 McHugh and Kirby JJ dissenting. 20 At [18]. 6

question, 21 whilst warning that a duty must relate to concrete facts and not be cast in the abstract. 22 22 McHugh J, dissenting, said that the conduct of the plaintiff in drinking too much had been relevant to contributory negligence; 23 and that, particularly where the duty of care extended to protecting the appellant, it was unlikely that the free choice of the injured person would preclude a right of action. 24 23 Kirby J, also dissenting, observed that... whatever difficulties free-will assumptions pose for the law in normal circumstances, such assumptions are dubious, need modification and may ultimately be invalidated by reason of the particular product sold by the respondent, which had the capacity to destroy free-will. 25 24 Koehler v Cerebos (Australia) Pty Ltd 26 was an employer s liability case decided, having regard to the way that the case had been argued, at the level of breach. But the judgment of McHugh, Gummow, Hayne and Heydon JJ had a deal to say about formulation of the duty of care in a case of psychiatric injury. 25 In the context of breach, the employee s willingness to do the work which caused her the injury was held to be a significant, but not determinative, matter. It did not alert her employer to the fact that she was at risk of suffering the injury. 26 Looking beyond the facts of the instant case, there was, I think, a considerable hint that the circumstance only that an employee sustained injury whilst performing work stipulated by the contract of employment might deny a right of recovery in some cases. That hint, framed in the context of psychiatric injury, might be said to reveal the notion of personal autonomy: if you, the employee, choose to enter into a 21 At [81]. 22 At [82]. 23 At [34]. 24 At [38]. 25 At [90]. 26 [2005] HCA 15. 7

contract which requires particular duties, you cannot hope to successfully mount an action for psychiatric injury resulting from such work. 27 27 In Thompson v Woolworths (Queensland) Pty Ltd, 28 the question was not whether the respondent owed a duty of care to the appellant, or as to the general nature of the duty, but rather whether there had been breach. The respondent had been the occupier of premises on which the appellant was injured. But there had been more to the relationship than that. The appellant knew of the particular risk. But that did not preclude her recovering damages. Rather, contributory negligence was determined against her. The joint judgment of Gleeson CJ, McHugh, Kirby, Hayne and Hayden JJ referred to the concept of personal responsibility in that context. Thus: The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration. 28 Laybutt v Glover Gibbs Pty Ltd 29 was an employer s liability case. It was resolved at the level of breach. The only question was whether there had been sufficient evidence to go to the jury of a failure to give appropriate instructions although it may be said that the instructions which had not been given, and which the plaintiff said should have been given, pertained to a risk which was obvious. 29 Vairy v Wyong Shire Council 30 and Mulligan v Coffs Harbour City Council 31 raised a similar factual situation. The plaintiffs were young men who suffered very serious injuries in consequence of driving or plunging into water and striking the heads or 27 See at [26]-[31]. 28 [2005] HCA 19. 29 [2005] HCA 56. 30 [2005] HCA 62. 31 [2005] HCA 63. 8

necks on the sand below. In each case, at first instance, the trial judge had accepted that the defendant, a public authority, owed the plaintiff a duty of care to protect the plaintiff from unnecessary risk of physical harm. In Vairy, the trial judge held that breach had been established. In Mulligan, the contrary. 30 The reasoning in Vairy was not uniform. Neither was the result unanimous. Gleeson CJ, and McHugh and Kirby JJ, held that the evidence established breach, notwithstanding that warnings of dangers are not required in every situation; whilst McHugh J noted the failure of the parties to keep separate the issues of duty and breach. 32 The majority 33 upheld the conclusion of the majority in the Court of Appeal 34 that there had been no breach. Callinan and Heydon JJ called in aid the concept of personal responsibility 35, the acceptance of risks, which underlay Agar v Hyde although that case had been resolved at the duty level. 31 In Mulligan, the facts were less favourable to the plaintiff. There was no evidence of a particular risk above and beyond that which obtains when anyone dives head first into water of variable depth. The plaintiff failed at trial, and unanimously in the Court of Appeal and the High Court. Obviousness of the risk was not the decisive consideration; 36 rather, the question was what, in all the circumstances of the case, a responsible authority having the care and control of the area would have done in response to the foreseeable risk of diving injuries. 32 Neindorf v Junkovic 37 was an occupiers liability case. The ultimately unsuccessful plaintiff tripped and fell on an uneven surface in the driveway of the defendant s home whilst attending a garage sale. The case was resolved at the level of breach. The unevenness of the surface on which the plaintiff slipped was so ordinary, and so visible, that reasonableness did not require any action on the part of the occupier. 33 Kirby J expressed a strong dissent, saying, inter alia 32 At [29]. 33 Gummow, Hayne, Callinan and Heydon JJ. 34 Beazley JA had dissented. 35 See at [216]. 36 But see Callinan and Heydon JJ at [75]. 37 [2005] HCA 75. 9

This Court should call a halt to the erosion of negligence lability and the substitution of indifference to those who are, in law, our neighbours. The erosion, and the indifference, has gone far enough. 38 34 New South Wales v Bujdoso 39 was an unsuccessful appeal by New South Wales against a judgment in the Court of Appeal in favour of a prisoner who had been injured when bashed, for the second time, by fellow prisoners. Duty was not in issue; rather breach. In upholding the Court of Appeal s decision in favour of the respondent, the High Court rejected the submission that the respondent s expressed wish to stay at the particular gaol despite the first beating, this being to facilitate his rehabilitation, carried an implication that in some way [he], rather than the [appellant] was responsible for the injuries caused to him. 40 The prison situation in which the violence had been inflicted was compared with the situation which arose in Modbury Triangle 41. 35 Finally, there is Manley v Alexander. 42 The injured respondent, who had drunk too much alcohol, and who was at the critical time lying on the roadway, was struck and injured by a vehicle driven by the appellant. The appellant had been keeping watch on the respondent s companion, who had also drunk too much, and who was at the side of the road. In the event the appellant did not see the respondent before he struck him. The respondent was held entitled to damages, reduced by 70% for his contributory negligence. The appellant s personal autonomy to drink too much and then lie down in the middle of the road was dealt with, then, at the level of breach. 36 I think, from all of this, that the following propositions may be stated. First, as I understand it, a duty of care continues to arise in the case of certain relationships. 43 In those situations, the failure of the injured person to take reasonable care for his or 38 At [22]. 39 [2005] HCA 76. 40 At [39]. 41 At [44]. 42 [2005] HCA 79. 43 That is so despite Modbury Triangle and Lepore. In addition to some of the cases to which I have referred, Czatyrko v Edith Cowan University (2005) 79 ALJR 838 at 842-3, [12] exemplifies the point in an employer s liability context. 10

her own safety will be potentially relevant to deciding whether there has been breach of duty which depends upon the reasonable response of the defendant in all the circumstances and relevant to deciding whether the defendant has established contributory negligence on the part of the plaintiff. 37 Second, in other cases epitomised by Brodie and probably by Cole a duty of care will arise only in favour of an injured person who has taken reasonable care for his or her own safety. 38 Third, in still other cases 44 no duty of care will arise in consequence of the application of an approach akin to voluntary assumption of risk. 39 Fourth, given that the way in which particular cases have progressed to the High Court has affected the manner of their disposition, it is uncertain when personal autonomy, or its synonyms, will be relevant to the question whether any duty of care was owed. 40 Fifth, in the types of case described in my second proposition the issues of duty, breach and contributory negligence may easily be run together. I think that the point is illustrated by Moyne Shire v Pearce, to which I earlier referred. The injured plaintiff fell over a broken part of a concrete spoon gutter adjacent to the driveway outside her residence. The damaged section was readily observable. The damage had been present for some time, and the plaintiff knew of its existence. Evidently, she was insufficiently attentive on the critical occasion. The jury found negligence, assessed damages, and found contributory negligence of 45%. The Court of Appeal, by majority, held that it was not open to the jury to find... that the [plaintiff] exercised reasonable care for her own safety and that the [defendant] owed a relevant duty of care to the [plaintiff]. But then, assuming that a duty had existed, and focussing upon breach, one of the majority judges said this: 44 As in Agar v Hyde. 11

The jury found contributory negligence. The particulars of contributory negligence pleaded were all... of the nature of failing to keep a proper look-out. The contributory negligence found was, therefore, in the very conduct of crossing the drain. Thus, consideration of the [plaintiff s] conduct confirms the conclusion arrived at from consideration of the [defendant s] conduct... that, even if a duty of care was engaged, the jury s finding of negligence... was such as no reasonable jury could have reached. 41 As that judge approached the matter, the very same conduct was on the one hand decisive against a duty of care having arisen, and on the other hand, decisive against breach on an assumption that a duty had arisen. Justice Gillard, I add, wrote a dissenting judgment which touched upon the interrelationship of duty and breach. I think, in point of principle, that it had much to commend it in that connection. But it is at odds with what the law has been said to be, at least in Victoria, in cases akin to Ghantous. 45. 42 Sixth, it appears to be the case that McHugh J was of opinion that the care required of a plaintiff can be considered both at the level of duty and breach. In the unsuccessful special leave application in Byrnes, his Honour said: In other words duty does not begin until a point is reached where the plaintiff has taken reasonable care for his or her own safety in respect of certain defects and then the duty arises. Once that duty is engaged, then questions of contributory negligence come in. 43 In Moyne Shire, Justice Gillard postulated, as I understand it, that there could be such an outcome if the jury found that there had been inadvertence, but no want of reasonable care, this enabling a finding that a duty arose; but nonetheless a finding that in all the circumstances the plaintiff had failed to take reasonable care for his or her own safety, this leading to a finding of contributory negligence. If my understanding of his Honour s reasons is correct, this does not seem to be a satisfactory rationalisation. Mere inadvertence, or momentary inattention terms historically used as a counterpoint to contributory negligence - would be of that character whether considering duty or contributory negligence. 45 Ghantous v Hawkesbury City Council, decided with Brodie at (2001) 206 CLR 512. 12

44 Seventh, this was a matter particularly addressed by Justice Beazley, it does not follow from the circumstance that a risk is obvious that it must be concluded that a person suffering injury because the risk eventuates is not taking reasonable care for his or her own safety; which is not to say that obviousness of risk may not be a significantly pertinent circumstance in a particular case. 45 To those seven propositions I would add a comment and a plea. The comment is this. It may be said that there was an element of personal responsibility inherent in the resolution of M Alister (or Donoghue) v Stevenson 46. For, after all, it was there emphasised that the defect was not discoverable by inspection. Presumably, the result would or may have been different had the ginger beer bottle not been of dark opaque glass ; or if the appellant had... reason to suspect that it contained [something other than] pure ginger beer. But so formulating the duty of care ran no risk of producing disparate results at the levels of duty and contributory negligence; because until 1945 contributory negligence was a complete defence in England. Contrast the situation in Australia today. 46 Now the plea. There has been a vast expansion in the monetary jurisdiction of Magistrates Courts, and of District and County Courts, throughout Australia. At least in some States, there is concurrent, unlimited jurisdiction in personal injuries proceedings brought in the Supreme Court of the State and in its District/County Court. Judges of the High Court, and of State appellate Courts, should be very attentive, as I see it, to the fact that so much of the pertinent litigation in the States and Territories is now brought in what may be called second and third tier courts. It is, no doubt, correct to insist that litigation must be resolved on a case by case, factsensitive, basis. It must also be accepted, I think, that in some circumstances failure by a plaintiff to take reasonable care for his or her own safety will bear upon the question whether a duty of care arose, and also upon the issues of breach and contributory negligence; whilst in other cases it will bear only upon breach and contributory negligence. But those truths leave untouched issues of practical 46 [1932] AC 562. 13

concern to judges and magistrates who must decide cases, or charge juries, on a daily basis; and who must do so without the time to ponder and resolve, as best they can, difficult questions which remain unresolved even by the High Court. ---------------- 14