Written by: Mohammad Kashefi, LLB (Hons)
Finding the relevant law
There are many entities that would fall under the category of a public authority. Public authorities inter alia, include; councils, police and water authorities. In this paper, I will narrow down the focus on negligence actions against public authorities. In negligence actions, the relevant state law must be looked at first. The focus of this paper is on Wrongs Act 1958 (Vic) and the principles of common law with respect to negligence. Further, as we are dealing with public authorities, the enabling legislation that confers powers and liabilities to the relevant public authority must also be identified and the relevant provisions applied to determine the liability a public authority.
In order to bring an action in negligence against a public authority, we must also satisfy the basic elements of a negligence claim. This means to prove on the balance of probabilities, that the public authority owed us a duty of care, the duty was breached by the public authority and as a result of the breach, we suffered loss/damage.
Liability of Public Authority in the Wrongs Act
In determining whether a public authority (‘authority’) has a duty of care or has breached their duty, the relevant principles of the Wrongs Act must be ‘considered’, namely Section 83. Section 83 states:
In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (amongst other relevant things):
- 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;
- 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 proceeding relates);
- 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 proceeding relates.
Section 83 of Wrongs Act sets out what the court will consider to establish liability on a public authority. With accordance to Section 83 of Wrongs Act, the court will take into account a public authority’s financials and other resources; the broad range of activities of the public authority (not merely the matter at concern); and any evidence of their compliance with their general procedures and applicable standards. In addition, in proceedings for an alleged breach of a statutory duty by a public authority, a plaintiff must prove that the failure of the authority in the circumstances was so unreasonable that no authority having functions of the authority in question would have considered the act to be reasonable of its functions; (section 84 Wrongs Act).
Sections 83 and 84 of the Wrongs Act make too plain the level of protection of public authorities. Both sections create factors which can be difficult to establish against public authorities and easy to argue by public authorities in their favour. It is important to note that, the principles within the Wrongs Act are not intended to replace common law, but supplement and clarify them. Therefore, to determine liability of a public authority, the relevant provisions of the Wrongs Act should be considered in conjunction with common law principles.
a) The Enabling Legislation
By way of example, let’s say that Melbourne Water is in control of a Sewerage pipe and over the years the pipe has been known to residence of the area to be faulty and at times and it has overflown. If the pipe bursts and causes damage to our property, we will have an action against Melbourne Water. The first thing we need to do is to find the enabling legislation. Melbourne Water is a Victorian Water Corporation as per the definition provided under section 3 of the Water Act 1989 (Vic) (“Water Act”). Hence the enabling legislation that regulates Melbourne Water as an entity is the Water Act.
Section 85 of the Water Act gives a water authority the right to sue, be sued, acquire and dispose of property. section 157 the Water Act specifically deals with the liability of public authorities. This section gives a person the right to sue an authority for intentional or negligent conduct for the flow of water due to the work of an authority and extends the liability to sewerage services. Pursuant to section 173 of the Water Act, an authority that has ‘sewerage district’ is responsible to:
- manage the disposal of sewage;
- identify and plan the future needs of the community relating to sewerage services;
- implement programs for reuse of wastewater;
- investigate into any matter which relates to sewerage services; and
- to educate the public about any aspects of the sewerage.
In determining whether a flow of water occurred as a result of the negligence of an authority, matters such as; planning, design, construction, maintenance and any failures of the authority are to be taken into account; (section 157 Water Act).
In this case, we would need to bring an action under section 157 of the Water Act against Melbourne Water, arguing negligence. To establish negligence, section 173 of this act is to be considered. If section 173 is applied in respect with this case, it is argued that Melbourne Water was responsible to manage the Sewerage pipe. They knew about the issue; namely that the sewerage pipe was faulty and they failed to implement a plan to deal with the issue to prevent possible blockage from happening again in the future. As per section 173 of the Water Act they also failed to educate the public with respect to the possibility of a burst. Our claim is also supported by section 157 of the Water Act, in that, the negligence of Melbourne Water related to design, construction and maintenance of the Sewerage pipe and Melbourne Water failed to maintain it to avoid future blockage of the sewer.
b) Common law
Common law has struggled to develop a guiding principle by which a public authority may be obliged to exercise its statutory powers; (Stuart v Kirkland-Veenstra (2009) 237 CLR 21, at 260). In Crimmins v Strevedoring Finance Committee (1999) 200 CLR 1 it was held that the relevant public authority owed a common law duty to exercise its statutory powers to encourage safe working. In that case the court considered the degree of ‘control’ over contracts of employment, conditions of workers and employers. To the contrary in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, it was held that the relevant public authority did not owe a common law duty to exercise their duty to prevent or reduce pollution leading to contamination of oysters.
In Amaca Pty Ltd v New South Wales (2004) 132 LGERA 309 (‘Amaca’), a worker who contracted mesothelioma as a result of exposure to asbestos was paid out by Amaca. Amaca then sued the state of NSW, on the basis that the relevant department of the state had contributed to the plaintiff’s loss by failing to exercise its statutory powers to inspect work sites and to give safety directions. In Amana, the plaintiff’s case failed. After applying Crimmins Case, the court concluded that the ‘control’ exercised by the state came nowhere near the extraordinary control exercisable by a public authority as per Crimmins. A set of common law principles were developed in Amaca to determine whether a public authority owes a duty of care. In Summary the principles are:
a) the totality of relationship is relevant for duty of care;
b) the category of control of a situation that contains a risk of harm;
c) a duty of care does not arise merely because a public authority has statutory powers, the exercise of which ‘might’ prevent harm;
d) mere fact that a statutory power has been exercised previously does not mean that it must be exercised again in future;
e) knowledge that harm may result from failure to exercise a statutory power on itself is not sufficient to create a duty of care;
Thus, after identifying the enabling legislation, the above-mentioned principles should be applied to our case; as per the preceding arguments, duty of care is well established as there is a relationship between us and Melbourne Water. There is clearly a control of a situation by Melbourne Water that contains a risk of harm to the public; in that Melbourne Water is a public authority in control of the sewerage pipe and responsible for maintaining the property. As per their statutory functions illustrated above, they are to investigate issues and implement plans to eliminate the issues. Therefore, had the exercise of their power been more diligent, they could have prevented the harm from occurring.
Although it is possible to bring an action against public authorities for negligence, this should only be done after careful review of the relevant matter. It is important to review the enabling legislation that confers powers to the public authority to understand their powers and limits. The state legislation is drafted in a way to provide ample protection to public authorities. Even though it may seem that a public authority may be liable for a negligence action, sections 83 and 84 of the Wrongs Act make it clear that the public authorities liability is subject to the functions they exercise, the level of financial resources they have and the public authorities liability is determined by reference to a “broad range of activities” not merely by reference to the matter to which the proceeding relates. Furthermore, the public authority may rely on evidence of its compliance with general procedures and applicable standards. Finally, in determining whether a public authority is liable for damage/loss, the courts look at the practice of other relevant public authorities whilst keeping the factors of section 83 and common law in mind.
After considering what we have to prove to hold a public authority responsible for negligence actions, it is argued that bringing actions in negligence against public authorities are not only problematic, but extremely difficult. Due care should be exercised when litigating against public authorities and actions should only be brought in gross negligence situations and where there is strong evidence that the relevant public authority is responsible for the damage/loss.
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