Trevorrow v State of South Australia [No5] (2007) 98 SASR 136 Liability of Statutory Authorities

Indigenous Cultural Awareness – the journey towards competence Why bother? Your assessment. How we are going to achieve cultural context and connect this with the law.

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Negligence – the steps of analysis Is the matter an established category of duty? (common law principles) Reasonable foreseeability (objective test) for both def. and plaintiff as member of class If not, “novel cause”- salient features. Nature of the harm Establish duty Forseeability Section 5B (1)of the CLA The Negligence Calculus s5B(2) Obviousness of risk Section 5C- burden of precautions Establish breach of duty Section 5D Assumption of risk (s5F) Remoteness Inherent risk Novus actus interveniens Establish causation Contributory negligence Volenti non fit injuria Consider defences

Torts? Trevorrow v State of South Australia [No5] (2007) 98 SASR 136. Misfeasance in public office Wrongful imprisonment Negligence In addition to the tortious actions were alleged breach of fiduciary duty and malicious prosecution. Your assessment requires you to only consider the tort of negligence.

Categories of relationship where duty is excluded or restricted by the Act Public authorities – esp those managing services for the benefit of the community or exercising regulatory function (Part 5) “Good Samaritans” (Part 8) Food donors (Part 8A) Volunteers (Part 9) Activities where there are inherent or obvious risk (5F-5I) Some recreational activities (ss5J-5N) Where the plaintiff consumes alcohol or drugs (Part 6) Criminal activity (Part 7)

The liability of statutory bodies Step 1 – duty of care 1. Is the exercise of statutory power policy/planning or is it operational? Sutherland Shire Council v Heyman (1985) 157 CLR 424. 2. Analyse the legislation. Does the Act preclude or prohibit a duty of care being found? Is there a statutory intention to cover the field or exclude civil liability? 3. Is it a case of misfeasance or nonfeasance?

Duty - Salient Features 4. The operation of the particular legislative scheme The consistency of finding a duty with the legislative scheme Foreseeability The vulnerability of the plaintiff and their reliance on the state to exercise that duty Control Proximity The power to take steps to alleviate an obvious risk. The floodgates principle – whether the finding of a duty would cause indeterminate liability to an indeterminate class of people.

Breach General principles 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.  

Breach- The Negligence Calculus (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

Section 5C CLA Other principles 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.  

Duty of public authorities under Civil Liability Act 2002 (NSW) Principles concerning resources, responsibilities etc of public or other authorities 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

Part B Assessment 1. Take a position. Argue it passionately and well. Remember this is 50% of the assessment marks. 2. Justify your position with good examples and if possible, extraneous material. There is plenty of critical material of how the Stolen generations loss has been (mis)handled. 3. Remember, this is a torts law assessment. Not a constitutional law assessment. You may think a bill of right is needed. That is something you may mention, but DO NOT devote your time to detailing how this would help. Answer the question. 4. The question implicitly asks the utility of redressing individualistically, rather than collectively. Cultural destruction is a collective loss.