Category Archives: Civil

October 8, 2014 · 4:07 am

Getting to know the ‘Reasonable Public Authority’

 

In Curtis v Harden Shire Council [2014] NSWCA 314, Basten JA of the NSW Court of Appeal undertook the difficult (and much needed) task of a comprehensive interpretation of section 43A of the Civil Liability Act 2002. The section is applicable in negligence actions brought against a public authority (eg. the Crown or a local council) where the complaint involves its exercise of a ‘special statutory power’, ie. something the authority has power to do that other ordinary folk do not.

 

The facts in Curtis involved the exercise of a fairly common ‘special statutory power’, the installation of traffic signs. In performing road works, Harden Shire Council had covered the surface in a layer of loose gravel. A woman lost control of her vehicle whilst driving on the road in question and fatally collided with a tree.

 

Proceedings were brought by her de facto partner for negligence on the part of the council for failing to erect either a reduce speed sign or a slippery road sign. The council defended this allegation on the basis that section 43A provided it with a complete defence. Section 43A states that Council would not be liable unless its failure to exercise the power to erect the signs was:

 

…so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

 

This kind of language is familiar to most lawyers not only for its turgidity but also because it echoes perhaps the most well-known of all administrative law concepts, Wednesbury unreasonableness.

 

With its awkward wording, section 43A (as does the Wednesbury standard) appears to set the standard of reasonableness at an indeterminately high level. However by more clearly defining how the test should operate in practice, Curtis goes some way towards demystifying the metes and bounds of the section.

 

Assuming it owes a duty of care, Curtis says there is a range of reasonable responses an authority in the defendant’s position should provide in order to be deemed to have acted reasonably. Whether the response in the particular matter at hand is within that range is not simply an evaluative determination the judge conducts on the face of the decision itself. Instead, a closer inspection of the evidence should reflect one way or another, what a public authority having the same expertise and powers as the defendant, and acting reasonably, should have done in response to the risk which eventuated and caused the accident (see Basten JA at [277-279] with Bathurst CJ (at [6]) and Beazley P (at [224] agreeing).

 

The difference with a Wednesbury analysis is that Basten JA’s approach involves looking behind the decision making process, rather than simply looking at the reasonableness of the decision on its face (ie. the Wednesbury approach).

 

But how do we get to know who this reasonable public authority really is?

 

At trial, the plaintiff’s case included evidence from an ex-employee of Harden Shire Council who was a technical adviser within the Council at the time of the accident. He had not given a statement/affidavit and neither the plaintiff nor Council’s own expert made any reference to his evidence in their reports (or elsewhere). This makes the writer suspect his evidence took the Council by surprise.

 

The witness gave the opinion that a sign notifying a recommended speed limit or that the road was slippery should have been installed; especially since as he described it, the road was like ‘walking on marbles’. He was of course, in as good a position as anyone to give such an opinion.

 

So whilst he was not presented to the Court as an expert in the traditional fashion, the witness embodied the hypothetical ‘reasonable public authority’ and therefore greatly assisted the Appeal Court in finding that Council’s omission was outside the range of what could be considered reasonable for an authority in its position.

 

The plaintiff may have been fortunate that it had such a willing and persuasive witness at its disposal on this key issue. Litigation lawyers well know that this is often not the case.

 

Nevertheless, in the writer’s view, Basten JA’s findings dictate that future cases in which a 43A question arises will normally require opinion from a suitably qualified expert about what was a reasonable range of behaviours for an authority in the same position as the defendant. As his Honour stated at [279]:

 

…the court must view the matter through the eyes of a responsible public authority, having particular expertise and functions.

 

The Court’s decision also reinforces a critical distinction between the law’s treatment of the ‘reasonable person’ and ‘reasonable public authority’ in this area of torts.

 

PS – an interesting question around burden of proof also arises here. Once, it is established that what the authority did (or failed to do) truly involved the exercise of a “special statutory power”, s 43A says that there is no liability unless the action exceeds the elevated level of unreasonableness it prescribes. This is a matter for the plaintiff to prove even though the section raises matters that are much more exclusively within the knowledge of the authority.

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September 18, 2014 · 3:01 am

High Court decision in Highway Hauliers tightens wriggle room on refusals

Another chapter in the ongoing battle between insurers and their insureds regarding the reach of section 54 of the Insurance Contracts Act (Cth) 1984 was recently decided by the High Court; in the insured’s favour this time.

Section 54 seeks to strike a balance between permitting insurers to include terms in an insurance policy that prevent their level of risk from increasing after the policy has commenced, versus unfairly relying on technicalities in drafting to deny the insured a valid payout.

If the effect of the insurance policy is to allow the insurer to deny coverage only by reason of some act of the insured occuring after the policy has been entered, the insurer’s right to deny indemnity is limited to a situation in which there is a causal relationship between the particular act in question and the actual loss. If there is no causal relationship, but the insurer’s interests are nevertheless prejudiced, section 54 also permits the insurer to reduce its libility to the extent such prejudice can be defined in monetary terms.

Maxwell v Highway Hauliers Pty Limited [2014] HCA 33 was an invitation to the High Court to delineate where the line between fairly limiting risk and avoiding indemnity should lie.

Highway Hauliers was in the business of freight transport and owned a fleet of trucks. The vehicles were insured under a policy which included an endorsement that all drivers undertake and receive a particular rating in a nominated driver safety attitudinal test (ie. the policy stated that no indemnity would be provided unless this condition was satisfied).

The drivers of trucks involved in the accidents said to trigger the policy had not undertaken the requisite test and the insurer invoked the term to deny liability.

At first instance and in the WA Court of Appeal the insurer conceded that the drivers’ failure to undertake the testing was not in any way causally related to the accident. In fact, the validity of the test was never established. Therefore, relying on section 54, the insured successfully claimed that the insurer’s denial of liability was invalid becuase the omission bore no causal relationsip to the loss suffered.

Nevertheless, the insurer was granted special leave in the High Court to use the case as a vehicle to test the meaning and effect of section 54. In principal, the argument put by the insurer was reduced by the High Court to this (at 17]):

[A] ‘claim’ to which s 54(1) refers is limited to a claim that is an insured risk.

Effectively, the insurer argued that the policy endorsement was simply a means of defining the scope of coverage. Therefore, on this argumemt, the failiure to have the truck drivers tested meant that the ‘claim’ never made it within the scope of the policy in the first place. As such, section 54 had no work to do, there being no valid ‘claim’.

In the end, the Court was unattracted to this argument and therefore able to dispose of the argument quite simply and with perhaps a somewhat disappointingly (but understandably) brief analysis.

In picking up an aspect of its earlier decision in Antico v Heath Fielding Pty Limited (1997) 188 CLR 652 the Court cited with approval the following words (appearing at CLR 659 of Antico):

[n]o distinction can be made, for the purposes of the section, “between provisions of a contract which define the scope of cover, and those provisions which are conditions affecting the entitlement to a claim”.

Not great news for insurers obviously.  For example, had the decision gone the other way (ie. a finding that a ‘claim’ must be found to fall within the scope of the policy before section 54 has any work to do), it would have provided a means of limiting risk through policy drafting which more narrowly defined the scope of cover.

The effect of Highway Hauliers is to make plain the position that it doesn’t matter whether the limitation on coverage the insurer seeks to enshrine in the policy is treated as an exclusion, endorsement or forms part of identifying the insured risk, section 54 will limit the insurer’s ability to deny liability on account of the actions of an insured unless those actions are causally linked to the loss itself. It seems a fair result, but one which now further confirms the strict limits facing insurers when seeking to deny liability.

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July 14, 2014 · 2:34 am

‘Hot tubbing’ can be anything but ‘just, quick and cheap’

 

With its racy moniker and perceived potential to address the kinds of reservations McClellan CJ raised in Wood v R [2012] NSWCCA 21 (at around [465-470]), the arrival of the expert conclave procedure in this jurisdiction was received with considerable optimism.

 

In theory at least, by the expert having to face-off with their peers, professional pride will supress the willingness to express a one-eyed opinion tailored to the needs of one’s paymaster. Having the experts brought together before the trial to establish the major areas of difference also has the potential of saving valuable court time for debating areas of genuine controversy.

 

In my experience however, us lawyers find it hard to stay out of the process enough to let these advantages bring their ‘just, quick and cheap’ imperative to fruition.

 

The battle simply shifts to areas like how the experts are actually briefed (eg. agreeing upon the assumptions upon which the experts will base their opinion). In fact this is probably the first bit of advice I can give: beware of being railroaded into agreeing a set of assumptions which promotes the opponent’s case in favour of your own. These assumptions can become close to accepted fact in the case, even though we all know from Makita that the underlying facts upon which the opinion is based must each be proven.

 

Nevertheless, Heydon J’s ‘counsel of perfection’ as it is sometimes called, is not always so closely observed amid the cut and thrust of a trial. If we are not careful, assumed facts have the power to take on the status of established folklore.

 

In fact, in some cases agreed assumptions are simply not appropriate. For example, where there is an issue of causation of psychiatric injury. Perhaps more that any other discipline, psychiatry is an area about which minds will differ radically (no pun intended). Part of the reason for this is that a psychiatrist can place differing emphasis, or indeed little or none, on the many various background experiences that make up a plaintiff’s pre and post-accident life. Telling all experts within the conclave which facts they can take into account in rendering their opinion has obvious difficulties in this regard.

 

Another criticism and danger to be mindful of, is that expert conclaves promote a survival of the fittest environment among the experts themselves. The contest becomes one of who is quickest to the mark in finding the ‘alpha’ expert, whose credentials, personality or both will see the others bow to their will.

 

Then there’s the logistics of getting the experts together who, in my experience, seem notoriously difficult to coordinate.

Despite all the work of getting them together in one place to refine their various opinions into something vaguely collective, so many of the joint reports I have seen are nothing more than a cut and pasted collection of the relevant parts of each expert’s individual report.

 

For the conclave process to be ‘just’ practitioners need to exercise great vigilance, but to do so is rarely ‘quick and cheap’.

 

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