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Re-assessing Reasonable Foreseeability in Light of the
Civil Liability Act 2002 (WA)
- Brian Nugawela -
(28 April 2008)
Reasonable foreseeability – overview of the common law
Summarily[1]:
[1]“On many occasions the one risk of injury may manifest itself or eventuate in a number of different ways and while the duty inquiry does not differentiate between the different ways in which the injury may eventuate (eg duty wrt general risk of injury by falling off a roof), the breach inquiry does (eg breach wrt falling through a skylight on the roof).
Breach of duty is only concerned with the way in which the risk of injury actually eventuated, leading to the plaintiff's injury (eg falling through skylight), and not with the other ways in which the risk could have eventuated but did not (eg falling over side of roof). If the manner in which the risk did in fact eventuate could not reasonably have been foreseen (i.e. was far-fetched or fanciful), then the response of the reasonable man to the risk of injury, which may have been effective had the risk eventuated in a way other than it did, would have been ineffective in preventing or reducing the injury actually complained of (although one would not need to get to the stage of inquiring what a reasonable response ought have been to an unforeseeable risk).
[2]Thus if the manner in which the risk eventuated was unforeseeable, there can be no breach of duty. This is quite distinct from the remoteness inquiry: the remoteness inquiry is only undertaken if a breach of duty has been established, proceeds on the assumption, implicit in the finding of breach, that the eventuation of the risk was reasonably foreseeable and looks at whether the type of injury suffered by the plaintiff was a reasonably foreseeable consequence of the fact that the risk eventuated…
The test of reasonable foreseeability (see ¶54-660 et seq.) as applied to the remoteness inquiry differs from the test of reasonable foreseeability as applied in relation to the breach inquiry. In determining whether a defendant is in breach of the relevant duty of care it is necessary to determine whether the event which occurred, causing or materially contributing to the injury complained of, was a foreseeable consequence of the alleged breach. In determining remoteness the test is whether the type of injury in question was a reasonably foreseeable consequence of the event which caused it…”.
[4]Tame v New South Wales [2002] HCA 35;(2002) 191 ALR 449 per Gleeson CJ at [12]:
“A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB said that a person "is not ... expected to anticipate and guard against that which no reasonable man would expect to occur". Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage. The present cases are concerned with the first topic. The subject of foreseeability was discussed by this court in Wyong Shire Council v Shirt, which was concerned with the second topic. (The duty of care was conceded). Reference was there made to the rather tendentious description of the requirement of foreseeability as "undemanding", a description that may be more or less accurate depending upon the context. It is important that "reasonable foreseeability" should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated”.
[5]Anterior to the breach question is the question of the content or scope of the duty of care. As succinctly summarized by Brereton J at first instance in Morgan v Owners of Strata Plan 13937 [2006] NSWSC 1019 at [32]-[33]:
“Was there a breach of duty by the Owners?
The duty of the Owners to Mr Morgan was that general duty of care owed by occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna[1987] HCA 7;(1987) 162 CLR 479; Hackshaw v Shaw[1984] HCA 84;(1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant’s presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt [1980] HCA 12;(1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited[2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson[2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term ‘reasonable’ and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett [2000] HCA 56;(2000) 205 CLR 166, 213 [166] - [167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54;(2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council[2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v
Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460]”.
[6]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 per Mason J :
“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stonemay nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable (person) in the defendant’s position would have foreseen that (his) conduct involved a risk of injury to the plaintiff or to a class of persons including the person. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable (person) would do by way of response to the risk. The perception of the reasonable (person’s) response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibility which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable (person) placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
[7]Wyong has withstood the test of time. After special leave was granted in Paua Nominees Pty Ltd v Miller, at the hearing of the appeal on 28 September 2005, the High Court rescinded the previous grant on the basis that the Wyong test applied by the Full Court of the Supreme Court of WA involved no departure from well settled principle. See also NSW v Fahy [2007] HCA 20 where the appellant’s challenge to the “far-fetched or fanciful” formulation was rejected at [52], [78], [79] (per Gummow and Hayne JJ), [100] - [133] (per Kirby J, in the minority but not on this point); contrast the obiter at [213] – [227] (per Callinan and Heydon JJ)
[8]But it is tolerably clear that reasonable foreseeability is (or should be) handled differently at the duty stage than at the breach stage of the inquiry. See Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 per Bryson AJ at [87]-[88],[90]:
“There may be some significance in the form of words used by the High Court in Sullivan v Moody, which does not directly cite these words used by Mason J in Wyong Shire Council v Shirt [1980] HCA 12;(1980) 146 CLR 40 at 48: “A risk which is not far-fetched or fanciful is real and therefore foreseeable”. In Sullivan v Moody at [42] this was recast without acknowledgement as: “foreseeable, in the sense of being a real and not far-fetched possibility”. As recast, the search is for the real so as to eliminate the far-fetched possibility, not for the far-fetched or fanciful so as to identify the real by failure of the search. The later formulation gives greater stress to the need for reality than the earlier. If there is anything to choose between the two passages it should be observed that Mason J was dealing with foreseeability in the slightly different context of breach of duty, and that the observation in Sullivan v Moody has the authority of a recent and unanimous decision of the High Court about the existence of a duty of care, not about its breach. Mason J’s formulation in Wyong Shire Council v Shirt has become a classic source in Australian law: in my respectful view reference to it should now give way to reference to Sullivan v Moody.
The question of foreseeability in the context of the existence of a duty of care is considered upon a higher level of abstraction than foreseeability in the context of breach of duty of care, which Mason J dealt with. The observations of Glass JA in the Court of Appeal of New South Wales in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639 illustrate the difficulties of foreseeability and its susceptibility to different interpretations: " The existence or non-existence of a duty owed by the defendant council to the plaintiff is considered upon a higher level of abstraction” (scil. than the breach question). Although Shirt v Wyong Shire Council was not disposed of on the reasons of the Court of Appeal, the judgment of Glass JA commands great respect and the passage at 639 should command at least as much respect as the more famous sentence at 641 of the same judgment referring to "the undemanding test of foreseeability which has now become received doctrine in the law of negligence”.
More is required for attributing a duty of care to guard against economic loss than a decision on reasonable foreseeability of loss. If there is no reasonable foreseeability of loss, the enquiry stops. If there is, the enquiry proceeds to an array of considerations of which it cannot be said that authority shows in what order they are important or which of them are categorically important so as to be necessary for or so as to exclude a conclusion that there is a duty of care”.
The Act – its application
[9]Other than actions for professional negligence, the Act applies to all personal injury claims for incidents that occur after 1 January 2003 (see the Compilation table in Reprint 5 October 2007), although 1 December 2003 is probably a more important datum in a practical sense [see s.5A(3)], unless they come within the exceptions set out in s.3A
[10]By s.5A(3a), the provisions concerning actions for damages arising out of professional negligence (Division 7 of Part 1A) takes effect from 9 November 2004.
[11]In my opinion, there seem to peculiarities in the drafting of s.3A, such that (for example) whilst for instance intentional assaults are expressly said to be not affected by Parts 1A, 1C, 1D, 2, and s.10A (tariffs for damages for non-pecuniary loss), Part 1B does continue to apply to actions for intentional unlawful acts[2]. By way of another example, Parts 1A, 1B and 1D and even s.10A tariffs for damages for non-pecuniary loss may apply to motor vehicle third party claims[3]. The point is that one has to be careful in determining what provisions of the Act apply to the broadly defined “personal injury damages” relating to “personal injury” and “harm” (s.3).
[12]Interestingly also, s.4A of the Act permits contracting out in some circumstances, so that (for example) although Part 1A, 1B, 1D and s.10 non-pecuniary loss tariffs may in some circumstances appear to exclude the operation of the Motor Vehicle (Third Party Insurance) Act 1943 by way of constructive or implied repeal, it is conceivable that by again contracting out of those Parts (s.4A), the MV Act may once again be roped-in.
[13]Beyond sounding the cautionary note above concerning the scope of application of the Act, it is not my intention to presently delve into the niceties of the application of the Act and its interaction or potential conflict with other legislation pertaining to personal injury[4].
[14]My paper is limited to considering the relevant constituents of the Act insofar as they relate to the common law concept of reasonable foreseeability. The Act does not in my view concerns itself with remoteness of damage in s.5C(1)(b) and s.5C(4) as part of the causation inquiry. I will also attempt to structure the contents of my paper in accordance with the advertised programme.
[15]Part 1A, Division 2 (i.e. section 5B) – “Duty of care”[5]
“5B. General principles
(1) A person is not liable for harm caused by that person’s fault 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);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(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”.
Commentary
[16]There is a view that the statutory test in s.5B is identical to its commonlaw predecessor, at least at an elemental level. See Doubleday v Kelly [2005] NSWCA 151 at [16] per Bryson JA:
“In determining the existence and scope of duty of care, both as articulated in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 (Mason J) and as restated in Pt.1A Div.2 of the Civil Liability Act, it is necessary to come to a decision about the response of a reasonable person in the position of the appellants to the foreseeability of risk of injury; even though there is a foreseeable risk of injury it may be a reasonable response to take no precaution against it”.
[17]It is probable that the actual taking of inadequate precautions is not intended to be covered by this section (when read literally), because the actual taking of precautions (albeit inadequate) will mean that the risk of harm would have in fact been foreseen anyway. In other words, a defendant who actually foresees an insignificant risk may not have the benefit of the defence.
s.5B substantive requirement or procedural defence? Onus of proof
[18]However inHalverson v Dobler [2006] NSWSC 1307 (a medical negligence case) affirmed in Dobler v Halverson [2007] NSWCA 335, s.5O of the NSW Civil Liability Act (the equivalent of s.5PA of our Act) was held to operate by way of defence eventhough the title to the section was headed “standard of care”. At [180]:
“Conflicting submissions were made as to the effect of s5O. The defendant argued that the section (which is titled “Standard of care for professionals”) sets the standard of care to be applied in all professional negligence cases. On this view, in order to establish negligence the plaintiff must prove that the provision of professional service by the defendant was not widely accepted in Australia by peer professional opinion as competent professional practice. The plaintiff submitted that s5Ois more properly characterised as a special defence that applies in professional negligence cases. Accordingly, the standard of care is still the standard that was endorsed in Rogers v Whitaker, but if a defendant is found to be negligent under this standard he or she can avoid liability if they can establish that they acted in a manner which was widely accepted in Australia by peer professional opinion as competent professional practice”.
[19]And later:
“[182] In my view the section is intended to operate as a defence. The section is expressed so that “a person practising a profession … does not incur a liability in negligence” if a certain state of affairs can be “established.” The italicised words go to the issue of liability, not to the issue of negligence, although in my view this is of little consequence. There is force in the plaintiff’s submission that the fact that the test is expressed in the negative indicates that Parliament did not intend to effect a more radical change in the standard of care to be applied in professional negligence cases.
[183] The defendant’s argument that s 5Oforms part of the definition of negligence in actions against professionals is based for the most part on the fact that the section is titled “standard of care for professionals.” Under the Interpretation Act 1987 (NSW), section headings are not to be taken as constituting part of the Act in which they appear (s 35(2)). They are extrinsic materials to which a court may have regard (s 34(2)(a)). However, I am satisfied that it is not necessary to resort to extrinsic material in this case. In any event the section heading must give way to the clear words of the section”.