Romeo v Conservation Commission

Romeo v Conservation Commission - [1998] HCA 5 - HCA 1998 case summary — Zoe

[21]

The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right [178] . However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertance of the entrants. While account must be taken of the possibility of inadvertance or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety [179] . For example, it would be neither reasonable nor just to impose upon a body such as the Commission an obligation to erect secure climb-proof fencing along the entire elevated headland of the reserve against the risk of injury suffered by the occasional visitor bent on suicide. In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct [180] .

[76]

What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. If Dixon J was intending to state the scope of the duty of care of a public authority exhaustively, I do not consider that such a statement of the scope of that duty can stand with later decisions of the Court - particularly Nagle . It would be a statement of the scope of the duty which is unduly restricted and it would proceed from an unstated premise that public authorities which manage land owe a different and more limited duty of care from the duty which others managing land owe. This premise can no longer be accepted. If it is a statement of the scope of duty, it is a statement which may be seen to have been much influenced by the then current distinctions between the duties of care owed by an occupier to particular classes of entrant as well, perhaps, as by what Dixon J described as the then "present chaos" which had overtaken "the law of torts" [48] . But in any event what is the "reasonable measure of precaution for the safety of users of premises, such as a wharf, who come there as of common right" is not frozen for all time. The reasonableness of measures of protection must be judged according to the prevailing standards of the day. Moreover, for my part, I doubt very much that Dixon J was intending to give a comprehensive or exhaustive statement of the scope of the duty owed by a public authority such as Kingborough Corporation. The respondent corporation in that case was found not to have taken reasonable care to prevent injury to the public through dangers arising from the state or condition of the premises which were not apparent and were not to be avoided by the exercise of reasonable care. It was not necessary to consider whether it would have been liable in other, different, circumstances. 1. (1939) 62 CLR 179 at 210. 2. Aiken (1939) 62 CLR 179 at 208What Dixon J (at 206) called "the already well-known statement of Lord Atkin in Donoghue v Stevenson " [1932] AC 562 was then but seven years old.

Parties

Applicant/Plaintiff:

Romeo

Respondent/Defendant:

Conservation Commission

Cases Cited (51)

High Court of Australia Brennan CJ Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ Romeo v Conservation Commission (NT) (D584/1996) [1998] HCA 5

Lipman v Clendinnen (1932) 46 CLR 550 at 554 2. Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 335-336see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-579

If in any statute any intention can be discovered that the council's control or occupation of the jetty shall or shall not carry with it a duty towards persons lawfully using it to take reasonable care by guarding, lighting or warning for their protection from such a danger as befell the plaintiff, that intention is of course decisive. But, though it is often said that the liability of a public authority in such a matter depends upon the intention of the statute, the truth is that in most cases the statute stops short after establishing the relation of the public authority to the structure or work with which it is concerned and goes no further than defining or describing the nature and degree of its control, authority or occupation, the function it is to perform and the powers it may exercise. It leaves to the general law the definition of the duty of care for the safety of the individual which flows from the position in relation to the structure or work in which it has placed the public authority. The conclusion that such a duty does or does not result and the measurement of the duty thus become matters of principle; and, however much reliance may be placed upon processes of interpretation, except in the rare case of an actual intention appearing on the face of the statute, to give any answer to the problem necessarily means that some general principle of liability is applied, or, what amounts to the same thing, that some presumption has been invoked in favour of a recognised head of liability. Although his Honour said that "control and management spells occupation" [27] , he was unable to assimilate the duty of a statutory authority having control and management of premises to the duty owed by an occupier to any of the three distinct categories in which entrants were then placed - invitees, licensees and trespassers [28] . The power of management and control authorises a public authority to safeguard an entrant against dangers on the premises but it does not, or does not necessarily, empower the public authority to regulate entry by the public on to the premises. The public may be entitled to enter as of right. The power of management and control is thus to be distinguished from occupation as a source of liability. However, by treating the statutory powers of control and management as, or as the equivalent of, de facto occupation, Dixon J [29] was able to treat the duty of the public authority to an entrant as a duty arising under the general principle of Donoghue v Stevenson [30] . 1. Aiken (1939) 62 CLR 179 at 204 2. Aiken (1939) 62 CLR 179 at 203 3. Aiken (1939) 62 CLR 179 at 207 4. See Aiken (1939) 62 CLR 179 at 206 5. [1932] AC 562.

Paris v Stepney Borough Council [1951] AC 367 at 375, 380, 386, 390. 2. See Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342 Bus v Sydney County Council (1989) 167 CLR 78 at 90 Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 272-273[1993] AustTorts Rep ¶81-234 at 62,402; Northern Territory v Shoesmith (1996) 5 NTLR 155 at 158

a reasonable man, taking account of the chances against an accident happening, would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. 1. [1951] AC 850. 2. Bolton v Stone [1951] AC 850 at 869

For earlier cases see, eg, Sutherland Shire Council v Heyman (1985) 157 CLR 424 Nagle v Rottnest Island Authority (1993) 177 CLR 423and Pyrenees Shire Council v Day (1998) 192 CLR 330Previous cases included Aiken v Kingborough Corporation (1939) 62 CLR 179 Schiller v Mulgrave Shire Council (1972) 129 CLR 116and Wyong Shire Council v Shirt (1980) 146 CLR 40 2. This was the description by Lord Keith in Murphy v Brentwood District Council [1991] 1 AC 398 at 471-472of the attempt by Lord Wilberforce to simplify the principles in Anns v Merton London Borough Council [1978] AC 728 at 751-752 3. This was the description used by Sopinka J in The Liability Of Public Authorities: Drawing The Line, Tort Law Review, vol 1 (1993) 123, at p 149. 4. Masel, Are Rulings on Proximity Reasonably Foreseeable?, Insurance Law Journal, vol 6 (1993) 59, at pp 66-67. 5. Bardsley v Batemans Bay Bowling Club Ltd (unreported; Court of Appeal of NSW; 25 November 1996) at 2-3, per Mahoney P. 6. (1993) 177 CLR 423. 7. Trindade, The Liability Of Public Authorities To The Public In Negligence, Tort Law Review, vol 2 (1994) 69. 8. Gleeson, High Court Presents Problems For Park Managers, Environmental and Planning Law Journal, vol 10 (1993) 225, at p 225. 9. Berns, Judicial Paternalism and the High Court, Alternative Law Journal, vol 18 (1993) 202. 10. Malcolm, The Liability and Responsibility of Local Government Authorities: Trends and Tendencies, Australian Bar Review, vol 7 (1991) 209, at pp 220-221.

Just v British Columbia (1989) 64 DLR(4th) 689 at 691-693, per Sopinka J. 2. See, eg, Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 279, per Clarke JA. 3. Allen, Liability of a public authority as occupier: Romeo v Conservation Commission of Northern Territory, Torts Law Journal, vol 5 (1997) 7. 4. See also Masel, Are Rulings on Proximity Reasonably Foreseeable?, Insurance Law Journal, vol 6 (1993) 59, at p 67. 5. Sopinka, The Liability Of Public Authorities: Drawing The Line, Tort Law Review, vol 1 (1993) 123, at p 151. 6. Cekan v Haines (1990) 21 NSWLR 296 at 306-307cf Phillis v Daly (1988) 15 NSWLR 65 at 77 Dugdale, Public Authority Liability: To What Standard?, Tort Law Review, vol 2 (1994) 143; Fleming, The Economic Factor in Negligence, Law Quarterly Review, vol 108 (1992) 9. 7. See, eg, Stovin v Wise [1996] AC 923 8. Heyman's Case (1985) 157 CLR 424 at 456-457, per Mason J.

(1994) 123 FLR 71

(1994) 123 FLR 84

(1939) 62 CLR 179

(1993) 177 CLR 423

(1985) 157 CLR 424

(1980) 146 CLR 40

(1972) 129 CLR 116

(1939) 62 CLR 214

(1932) 46 CLR 550

(1997) 188 CLR 313

(1998) 192 CLR 330

(1984) 155 CLR 306

(1991) 171 CLR 506

(1987) 162 CLR 479

(1984) 155 CLR 614

(1982) 56 ALJR 87242

(1993) 82 LGERA 268

(1995) 123 FLR 84

(1957) 97 CLR 202

(1975) 132 CLR 201

(1984) 154 CLR 311

(1997) 189 CLR 520

(1984) 155 CLR 549

(1986) 160 CLR 16

(1986) 162 CLR 340

(1986) 162 CLR 376

(1988) 164 CLR 539

(1991) 172 CLR 243

(1994) 179 CLR 520

(1995) 182 CLR 609

(1997) 188 CLR 159

(1957) 97 CLR 337

(1989) 167 CLR 78

(1996) 5 NTLR 155

(1994) 123 FLR 71104

(1990) 21 NSWLR 296

(1988) 15 NSWLR 65

(1988) 12 NSWLR 293

(1985) 156 CLR 7

(1993) 62 SASR 562

(1989) 17 NSWLR 553

(1964) 38 ALJR 309

(1963) 110 CLR 40

(1966) 115 CLR 458

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (51)