VCE Stuff > VCE Legal Studies
Brendan's legal news
costargh:
Tomorrow
3.00-5.15
15 minutes reading time
2 hours writing
13 questions
12 of which must be answered
The final question gives an option of part a or b to answer
brendan:
Schoolies in trouble 'could sue'
"As about 30,000 teenagers begin arriving on the Gold Coast today for the week-long Schoolies celebration, a local lawyer believes the Queensland Government could be held liable for injury and sexual assault compensation claims.
Gold Coast lawyer Bruce Simmons said by taking over official control of Schoolies Week, the State Government had essentially assumed responsibility for the teenagers attending."
The Common Law:
"True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive."[1]
"In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."[2]
[1] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 664 [321] per Callinan J.
[2] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 35 [82] per McHugh J.
costargh:
Lol thats funny ^^^
Whats your view on that Brendan? (I'm genuinely interested, not taking the piss lol)
I am not sure what to think when I read that lol
brendan:
I know the Wrongs Act 1958 and the common law, but i don't know the queensland statutory regime regarding this issue.
brendan:
Section 35 of the Civil Liability Act 2003 (QLD):
?The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty--
(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 the functions;
(b) the general allocation of financial or other resources by the authority is not open to challenge;
(c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with its general procedures and any 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 36 of the Civil Liability Act 2003 (QLD):
?(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.?
Section 35 codified many of the common law principles regarding the liability of Public Authorities conveniently summarised in McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 35 [82].
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests?
Yes. In the present case the risk of harm of the kind charged was reasonable foreseeable in the sense that it was "real and not far-fetched": Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268 per Gleeson CJ.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm?
Mr. Simmons described the risk of harm as being ?injury and sexual assault?, committed by third parties and not the State government themself.
Gleeson CJ observed in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 265 that:
?Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil , or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions.?
His Honour then went on to state (at 267):
?The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 261, per Lord Mackay of Clashfern...
It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour (Mason P, in W D & H O Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-359, indicated a negative opinion on that question, and gave cogent reasons for that indication). It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated.?
Mr. Simmons argued that the State government assumed responsibility for the illumination of the car park. That argument confuses two different meanings of responsibility: capacity and obligation. The relevant question is whether the State government assumed an obligation to care for the security of persons in the position of the plaintiff by protecting them from attack by third parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 264 per Gleeson CJ.
Accordingly, I find that it cannot be stated that the State government had the requisite control over the unpredictable criminal behavior of 3rd parties.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm?
I will finish this later.
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