Locating the Pertinent Law
A public authority could include a wide variety of organisations. Councils, the police, and water authorities are examples of public authority. I shall concentrate on negligence claims against public bodies in this essay. The pertinent state statute for negligence cases must be reviewed first. The Wrongs Act of 1958 (Victoria) and the common law’s negligence principles are the main topics of this essay. Additionally, because we are dealing with public authorities, it is necessary to identify the enabling law that grants the relevant public authority’s rights and liabilities as well as apply the pertinent sections to assess that authority’s liability.
We must also meet the prerequisites for a negligence claim in order to file a lawsuit against a public entity. It means to demonstrate, on the basis of a preponderance of the evidence, that the public authority owed us a duty of care, that duty was broken, and that as a result of the broken duty, we incurred loss or harm.
Public Authorities’ Responsibility for Wrongs Act
The applicable principles of the Wrongs Act, specifically Section 83, must be “considered” in establishing whether a public authority (the “authority”) has a duty of care or has violated that obligation. Article 83 declares:
A court must take into account the following guidelines (among other pertinent factors) while deciding whether a public authority owes a duty of care or has violated one:
The financial and other resources that are reasonably accessible to the authority for the purpose of exercising those responsibilities limit the functions that must be performed by the authority;
The duties that must be performed by the authority must be determined in light of its wide range of activities (and not just in light of the subject matter of the procedure);
As proof of the correct performance of its duties in the matter at the centre of the process, the authority may rely on documentation of its adherence to applicable standards and general procedures.
The criteria the court will use to determine whether a public authority is liable are outlined in Section 83 of the Wrongs Act. According to Section 83 of the Wrongs Act, the court will consider a public authority’s finances and other resources, the public authority’s wide range of activities (not just the issue at hand), and any proof of their adherence to their standard operating procedures and applicable standards.
Additionally, according to Section 84 of the Wrongs Act, the plaintiff in a case alleging a public authority breached a statutory duty must show that the authority’s failure to act reasonably under the circumstances would not have been accepted by any other authority performing the same functions as the one in question.
The Wrongs Act’s Sections 83 and 84 make the degree of protection provided to public authority far too clear. Both parts introduce elements that can make it tough to argue against public authorities and simple for them to do so. It is significant to highlight that the Wrongs Act’s guiding principles are meant to augment, not to replace, common law.
Therefore, the pertinent Wrongs Act provisions and common law principles should be taken into account when determining a public authority’s obligation.
3.2 Example
a) The Enabling Legislation
As an illustration, suppose Melbourne Water is in charge of a sewerage line that has occasionally overflowed over the years and is known to the locals to be defective. We will file a lawsuit against Melbourne Water if the pipe explodes and damages our property. Finding the enabling laws is the first thing we must do. According to section 3 of the Water Act 1989 (Vic) (“Water Act”), Melbourne Water is a Victorian Water Corporation. Thus, the Water Act serves as the enabling law that governs Melbourne Water as an organisation.
A water authority is granted the right to bring legal action, be sued, and purchase and sell land under Section 85 of the Water Act. Public authorities’ liability is particularly covered in section 157 of the Water Act. According to this clause, authorities are liable for sewerage services when they intentionally or negligently cause water to flow as a result of their work. The following responsibilities of an authority with a “sewerage district” are mandated under section 173 of the Water Act:
- Manage sewage disposal
- Determine and plan for the community’s future needs for sewerage services
- Implement programmes for wastewater reuse
- Look into any situation involving sewage services.
- To inform the public about all facets of sewage systems
According to Section 157 of the Water Act, factors such planning, design, construction, maintenance, and any authority failings must be taken into consideration when assessing whether a flow of water was caused by carelessness on the part of the authority.
In this situation, we would need to file a claim against Melbourne Water under section 157 of the Water Act, alleging negligence. Section 173 of this Act must be taken into account in order to prove carelessness. Melbourne Water is said to have been in charge of managing the sewerage pipe if section 173 is applied in this circumstance. They were aware of the problem, namely that the sewerage line was defective, but they neglected to put a strategy in place to address it in order to stop such blockages from occuring again in the future.
They also did not inform the public about the potential for a rupture as required by section 173 of the Water Act. Section 157 of the Water Act, which states that Melbourne Water was negligent in the design, construction, and maintenance of the sewerage line, and that Melbourne Water neglected to maintain the pipe to prevent further sewer blockages, also supports our claim.
b) Common law
According to Stuart v. Kirkland-Veenstra (2009) 237 CLR 21, at 260, common law has struggled to provide a guiding principle under which a public entity may be required to exercise its statutory authorities. According to the ruling in Crimmins v. Strevedoring Finance Committee (1999) 200 CLR 1, the relevant public authority has a common law obligation to use its legislative authorities to promote safe working.
In that instance, the court took into account the level of “control” over employment contracts, labour conditions, and corporate policies. On the other hand, it was determined in Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540 that the relevant public authority did not have a common law obligation to act in accordance with its responsibility to prevent or limit pollution that could contaminate oysters.
In the case of Amaca Pty Ltd v. New South Wales (2004) 132 LGERA 309 (the “Amaca” case”), an employee who developed mesothelioma after being exposed to asbestos received compensation from Amaca. The state of NSW was then sued by Amaca on the grounds that the appropriate department had failed to use its legal authority to monitor work sites and issue safety directives, which had contributed to the plaintiff’s loss. The plaintiff’s lawsuit was unsuccessful in Amana.
The court reached the following conclusion after applying the Crimmins Case: the ‘control’ exercised by the state fell far short of the extraordinary power exercisable by a public authority under Crimmins. Amaca established a series of common law rules to determine whether a public authority owes a duty of care. In brief, these guidelines are:
a) The entirety of the connection bears on the obligation of care.
b) The type of control over a circumstance where there is a danger of harm
c) A public authority does not automatically owe a duty of care just because exercising certain statutory powers “might” prevent harm.
d) Just because a statutory power has been used once doesn’t mean it has to be used that way again.
e) Even knowing that harm could occur if a statutory power is not used is not enough to establish a duty of care.
After determining the enabling legislation, the aforementioned principles should be applied to our situation because, according to the arguments made above, there is a link between us and Melbourne Water and as a result, a duty of care is well established. Melbourne Water is a public entity that controls the sewerage line and is in charge of maintaining the property, therefore it plainly has control over a situation that poses a danger of harm to the general public.
According to the statutory duties described above, they are required to look into problems and put strategies in place to solve them. They could have avoided the harm if they had been more careful in how they used their power.
Even while it is permissible to sue public officials for negligence, you should only do so after carefully reviewing the pertinent information. In order to comprehend the authority’s capabilities and constraints, it is crucial to analyse the enabling legislation that grants it authority.
Public authorities are given a lot of protection thanks to the way the state legislation is written. Even though it may appear that a public authority may be liable for a negligence claim, sections 83 and 84 of the Wrongs Act make it clear that the liability of public authorities is dependent on the functions they perform, the amount of financial resources they have, and the “broad range of activities” they engage in, not just the subject of the proceeding.
Because of the way the state’s laws are established, public authorities are given a lot of protection. The Wrongs Act’s sections 83 and 84 make it clear that, despite the appearance that a public authority might be liable for a negligence claim, the liability of public authorities is based on the duties they carry out, the amount of resources they have, and the “broad range of activities” they engage in, not just the matter at hand.
It is suggested that bringing negligence claims against public authorities is not only problematic but also exceedingly challenging after evaluating what we must prove to hold a public authority accountable for conduct in carelessness. where bringing legal action against public entities, due care should be taken, and cases should only be brought in cases of egregious carelessness and where there is solid proof that the offending public entity is to blame for the loss or harm.
If you have any further questions, please contact our Legal-Litigation Lawyer Nikola Fratric on (03) 9999-1122 or by email nik.fratric@adclegal.com.au.