ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161 - NSWCA 2008 case summary — Zoe

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ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

[2008] NSWCA 161

Court of Appeal (NSW)|2008-07-16|Before: Beazley JA, Giles JA, Campbell JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2008-07-16

Before

Beazley JA, Giles JA, Campbell JA

Source

Original judgment source is linked above.

Judgment (474 paragraphs)

[1]

TORT - negligence - duty of care - linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft - whether duty of care owed by employer - whether duty of care owed by pilot of aircraft - whether operator of aircraft vicariously liable for actions of pilot - whether direct application of notion of proximity is a safe guide to when duty of care exists - whether causal connection between impact and injuries - whether finding of causation is consistent with finding of no duty - AVIATION - Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight - s 10 and s 11 Damage by Aircraft Act 1999 (Cth) - construction of expression "caused by" in s 10(1)(d) Damage by Aircraft Act - whether narrow construction of provision appropriate - whether common law concept of causation applicable - whether voluntary assumption of risk available as defence to action for damages under s 11 - whether contributory negligence available as complete defence or defence to action for damages under s 11 - whether circumstances falling within s 10(1) of Act amount to a "wrong" within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 - whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings - circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant - whether owner and operator of aircraft can recover contribution from employer of linesman towards their liability to pay damages under the Act - s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - STATUTORY INTERPRETATION - Second reading speech - aid to construction - s 15AB (Cth) - JURISDICTION, PRACTICE AND PROCEDURE - Jurisdiction - Federal jurisdiction - claim for damages arising under Commonwealth Act - s 76(ii) - (Cth) - whether provisions as to contributory negligence under State legislation applicable by State court exercising federal jurisdiction - - - s 79 (Cth)

[263]

100 In deciding whether Mr Stubbs owed a duty of care to Mr Cook, it is necessary to bear in mind that all of the cases on which Aircair relies come from times when the understanding of the circumstances in which a duty of care rises was not quite the same as it is today. In particular, it is to be observed that in Daley their Honours explicitly relied on "the principle of proximity" (though with an explicit statement of what they understood by it). Direct application of the notion of "proximity" can no longer be seen as a safe guide to when a duty of care exists: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [7]- [10] 193-194 per Gleeson CJ, [25]-[27] 197-198 per Gaudron J, [70]-[82] 208-212 per McHugh J, [191] 251 per Gummow J, [245]-[247] 268-270, [255] 273, [259] 275, [267] 277-278, [279]-[287] 283-286, [292]-[296] 288-289 per Kirby J, [330]-[335] 300-303 per Hayne J, [389] 318-319, [393] 321-322, [398]-[400] 323-324, [406] 326 per Callinan J. More recent High Court authority has referred to proximity as a doctrine that is "rejected" (Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [29]- [30], 563-564 per McHugh J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [236], 624-625 per Kirby J) "no longer ... the criterion of a duty of care" (Graham Barclay Oysters Pty Ltd v Ryan at [99], 583 per McHugh J), "one that has not served as a unifying doctrine" (Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [53], 341 per Gaudron J), and "not only difficult to define but difficult to apply" (Tame at [257], 405 per Hayne J). In Prestige Property Services Pty Ltd v Choi [2007] NSWCA 363 Mason P (with whom Hodgson JA and Handley AJA agreed) said at [36] that a submission that a duty of care was based on proximity "had an old-fashioned and unhelpful ring about it." In my view, it is necessary to decide whether a duty of care was owed by looking in a more particular fashion at facts relating to the particular relationship in which Mr Stubbs and Mr Cook stood.

[380]

163 Examination of Glanville Williams at 198-222 shows that when contributory negligence was available as a defence at common law is a matter of considerable complexity. For example, if the consequences of which the plaintiff complains were intended by the defendant, no defence of contributory negligence is available: Quinn v Leathem [1901] UKHL 2; [1901] AC 495 at 537 per Lord Lindley. For the tort of deceit (which can be committed either intentionally or recklessly: Derry v Peek (1888) 14 App Cas 337) contributory negligence of a gullible plaintiff, or of a plaintiff who negligently failed to check the accuracy of the statement made, is not a defence: Central Railway Co of Venezuelan v Kisch (1867) LR 2 HL 99. However contributory negligence can be a defence to the unintended consequences of wilful wrongdoing: Butterfield v Forrester [1809] EngR 175; (1809) 11 East 60, 103 ER 926. It may also be a defence to an action against a master for the wilful tort of his servant, and to an action based on strict liability where the loss was caused through the wilful tort of the defendant's servant: Bradley v Waterhouse (1828) M & M 154[1828] EngR 440; , 173 ER 1114, 3 Car & P 318, 172 ER 438. The situation may be different where the plaintiff actually intends to bring the damage on himself, rather than merely being careless of his own interests. A person whose goods are stolen after he or she has been careless for their safety can nonetheless recover them, or their value, from a bona fide purchaser from the thief: Scholfield v Earl of Londesborough [1896] AC 514 at 522 (an intentional tort in that proof of an action or actions by the defendant showing an intention to assert dominion over the goods would be an essential part of the plaintiff's case). These examples by no means exhaust the complexity of the topic. More recent authority continues to assert that there is no invariable rule about whether contributory negligence is a defence to a tort based on the wilful action of the defendant: State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [104]- [106], 522-523; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [25]; Lane v Holloway [1967] EWCA Civ 1; (1968) 1 QB 379 at 392-393; Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at [67]- [68]; Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VicRp 57; [1989] VR 617 at 637-638; P Vout (ed), Torts: The Laws of Australia, 2nd ed (2007) Thomson Legal & Regulatory Group par [33.9 .600]; J G Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at 316 ff; F Trindale & P Cane The Law of Torts in Australia, 4th ed (2007) Oxford University Press at 688-689; Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell par [3.36]-[3.49].