Wheelahan & Anor v City of Casey & Ors

Wheelahan & Anor v City of Casey & Ors - [2011] VSC 15 - VSC 2011 case summary — Zoe

[55]

The categories of case in which a duty of care with respect to pure economic loss is to be found are properly to be seen as special. Foreseeability of loss, and an unbroken chain of causation, are necessary elements, but by themselves are not sufficient. An additional element which must be present has been variously described as involving one or more of known reliance or dependence of the plaintiff; the assumption of responsibility by the defendant; or the control exercised, or exercisable, by the defendant over the circumstances affecting the plaintiffs interests. What ultimately determines whether a duty of care arises is the character of the relationship between the plaintiff and the defendant. Matters such as those which we have just mentioned, and others, bear upon the resolution of that question in the particular circumstances of particular cases; though not all of those matters will be at the forefront in every case. The question to be answered is whether, having regard to the salient features of the particular case, the connection between the parties is sufficiently close - though not necessarily physically close - as to give rise to a duty of care. When the defendants acts or omissions arise in connection with the discharge of statutory duties or the performance of statutory functions, the statutory framework is itself a salient feature to which consideration must be given.

To those considerations should be added the following: Three policy considerations are pertinent in every case. First, that the effect of a decision should not lay a defendant open to claims which are indeterminate as to the class or number of potential claimants, time or amount. Second, that the effect of a decision should not be to unduly hinder ordinary commercial transactions (or, be inconsistent with normal business standards). Third, that a decision should not have the effect of intruding into another area of the law.

Also to be borne in mind is the fact that the pertinent law has been developed cautiously, incrementally, and by analogy. So, for example, in Perre v Apand Pty Ltd McHugh J said this:

... We have the established categories, a considerable body of case law and the useful concept of reasonable foreseeability. If a case falls outside an established category, but the defendant should reasonably have foreseen that its conduct would cause harm to the plaintiff, we have only to ask whether the reasons that called for or denied a duty in other (usually similar) cases require the imposition of a duty in the instant case.[24]

[57]

This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

These salient features include:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.[26]

[110]

(a) First Duty to Residents;

(b) Second Duty to Residents; and/or

(c) Third Duty to Residents.

Particulars

Had LMS discharged its First Duty to Residents, it would have ascertained and advised that the Energex LFG System was defective and needed to be totally revamped or replaced with a new gas collection system. Had such a recommendation be made, it would have been accepted by Energex, SITA and/or Casey, and consequently the subsurface migration of landfill gas from the Southern Cells into the Brookland Greens Estate would have been prevented or significantly retarded.

Had LMS discharged its Second Duty to Residents and advised that a comprehensive assessment of the landfill site should be immediately conducted, Energex, SITA and/or Casey would have accepted such advice. An inspection would have revealed the site specific conditions and complexity of the landfill and of the need to design and install a trial gas extraction system, and a complete gas extraction system, that was suited to the Stevensons Road Landfill, having particular regard to its depth, its history of issues with groundwater and leachate management, the heterogeneity of its waste profile, the compartmentalisation of waste, and the perching of water within the landfill. A landfill gas extraction system designed, constructed and installed in 2005/2006, that was suited to the Stevensons Road Landfill, would have maximised the prospect of landfill gas being effectively extracted from the site, with the effect of preventing or significantly retarding the subsurface migration of landfill gas from the Stevensons Road Landfill into the Brookland Greens Estate.

Had LMS discharged it Third Duty to Residents, it would have designed a landfill gas extraction system that was suited to the Stevensons Road Landfill, and which would have maximised the prospect of landfill gas being effectively extracted from the site, with the effect of preventing or significantly retarding the subsurface migration of landfill gas from the Stevensons Road Landfill into the Brookland Greens Estate.[37]

At a glance

Court

Decision date

Before

Source

Judgment (132 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)