Category Archives: Negligence

Pokemon Go: a change of landscape for insurers and gamers alike

As a concerned parent, I have recently had cause to discuss with few fellow mums and dads the whys and wherefores of the Pokemon Go ‘phenomenon’; which, like the word ‘crisis’, has become one of those hyperbolic usages that characterises this age of sensationalism we are living in.

In line with accepted best practice parenting, one particular couple said they took the immersive approach, having decided to spend last Saturday afternoon playing it with their 12-year-old son.

Their rather tame introduction took them as far as the local shops in search of the nearest Pokemon to capture, which for the uninitiated, is the principal aim of the game. And sure enough, right there, smack bang in the middle of the road (in reality, well sort of) was the coveted creature.

It was at this point in telling the story that the boy’s father made the observation that the Google Map data used to determine the player’s location and distribute the various Pokemon is not vetted. Therefore players could well be led onto a busy road in search of glory; or off a cliff perhaps. Yikes!!

However, could or should it be? The conventional wisdom among gamers is that Pokemon are distributed by operation of an algorithm (a bit like the mysterious way Google sees some people’s websites arrive higher up the list of search responses than others). Therefore, it seems to be somewhat random.

The game’s terms and conditions say players should “be aware of [their] surroundings and play safely. …[and take] responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies … reasonably necessary for any injuries.”

But what about the 5 year-old child who all alone embarks on the same trip to the shops on a Pokemon Go quest and is busy standing in the middle of the road trying to make a catch when a car screams around the corner…

Even if such a disclaimer would have any force at law, surely it couldn’t be used to protect against this kind of claim.

Subject to a contributory negligence reduction (which would be little or none for a child of this age), this situation would be the responsibility of the CTP insurer. However, if I were the CTP insurer, I’d be ready for battle with a cross claim for contribution from the game provider. Surely such a tragic result is foreseeable enough to give rise to a duty of care on its part. The misplaced Pokemon could perhaps be likened to the ‘snail in the bottle’ a la Donoghue v Stevenson.

Then the question arises as to how reasonable it is to expect the system to be sufficiently controlled by the provider so as not to put its users in such obvious peril. That would make for a fascinating debate, though it may never reach a courtroom given it would likely result in the scrutiny of the top secret Pokemon distribution algorithm itself.

Airbnb now offers complimentary landlord style insurance to its subscribers whose use of the property as a short term rental might see them excluded by a conventional policy. So I’m sure there is an insurer brave enough to take on this new risk at the right premium, something I’d be strongly recommending if it hasn’t been done already.

Apparently, there’s already a Russian bank already offering to insure users themselves (https://www.rt.com/business/351813-pokemon-go-sberbank-insurance).

Watch this space (no pun intended).

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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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Contributory Negligence: spotlight on both parties…and elsewhere?

Naturally, the primary focus of any defendant arguing contributory negligence is on the conduct of the plaintiff. At its heart however, contributory negligence is an apportionment exercise. That is, one requiring the conduct of both plaintiff and defendant to be placed alongside each other and examined.

 

Then the alchemical process of comparing the behaviour of each litigant is undertaken, a pair of percentages produced and ultimately, if made out, an amount by which the plaintiff’s claim should be reduced.

 

Basten and Macfarlan JJA’s judgments in Gordon v Truong [2014] NSWCA 97 highlight two important aspects of this process.

 

In Gordon the defendant collided with a pedestrian and admitted liability in negligence pre-trial. However, on the question of liability there still remained the issue of the plaintiff’s alleged contributory negligence for failure to keep a proper lookout. The trial judge assessed this at zero and the defendant appealed.

 

 

The plaintiff, Mr Truong was about half way across three traffic lanes when he was hit. Upon Basten JA’s calculation, he had more than enough time to see the defendant’s car and take evasive action. This was enough for his Honour to vary the trial judge’s decision and make a finding there should be a 35% reduction to the plaintiff’s award due to his contributory negligence.

 

However, Basten JA had a problem with the dearth of evidence and submissions regarding the driver’s breach of duty at the first instance trial; a somewhat natural consequence of his liability having been admitted. This gave his Honour cause to offer the salutary reminder (at [19]):

 

…the plaintiff could fairly submit [t]hat because the proof of contributory negligence lay with the driver, who had an interest diminishing his degree of responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.

    

Therefore the first learning Gordon offersis that where the defendant’s liability is admitted and contributory negligence is alleged, the court must still be given the opportunity to assess the extent of the defendant’s culpability through sufficient evidence and submissions; rather than putting it to one side as it was in this case.

 

The Court of Appeal in Gordon was still comfortable to infer the driver’s culpability from the surrounding facts and found him similarly responsible for failing to keep a proper lookout.

 

Then came the mysterious process of determining the percentages of blame. In NSW section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 says the apportionment is based upon what the court thinks is ‘just and equitable having regard to the claimant’s share in the responsibility for the damage’. Yet the standard of reasonableness applicable to the assessment of the claimant’s conduct is said to be the same as that defendant, ie. the ‘reasonable person’ (per s5R of the Civil Liability Act 2002). However the content of that hypothetical standard would obviously be different.

 

What’s interesting is the different way the majority of Basten and Macfarlan JJA dealt with the apportionment exercise.

 

Basten JA picked up some passages from the Review of the Law of Negligence: Final Report (September 2002) a document which provided key background and rationale for the Civil Liability Act 2002. These parts of that document seem to discourage (as by implication does perhaps section 5R) treating the obligation of motorists and pedestrians to keep a proper lookout any differently based upon for example, the greater potential of the motorist to cause serious harm.

 

Instead Basten JA simply made a less than resolute assessment of what he thought each party’s role in the accident would have been and agreed with Macfarlan JA’s apportionment of 35% contributory negligence.

 

Macfarlan JA however, did not feel so constrained and picking up the observations of the High Court in Pennington v Norris (1956) 96 CLR 10 at 16, noted at [50]:

 

Relevant to the apportionment exercise in this case is in my view the fact that the appellant was in charge of a fast moving vehicle that had the potential to do great harm to people or things in its path, whereas the consequence of carelessness on the part of the plaintiff was more likely to be, as it was, only harm to himself.  

 

The common law most certainly permits this kind of approach to contributory negligence apportionment, ie. looking at broader concepts of blameworthiness (including by implication at least, public policy matters). However, Basten JA’s restraint provides some food for thought. His Honour’s approach seems to imply that any justification for an approach by which motorist and pedestrian should be treated differently simply because of the former’s greater propensity to cause harm is not necessarily borne out in the relevant legislative provisions.

 

This is of particular interest in light of Basten JA’s observation at [14] that contributory negligence is ‘a creature of statute in this jurisdiction’.

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