PUBLIC LIABILITY

I have been tasked with providing an overview of the essentials of prosecuting a public liability claim as informed by the operation of the Civil Liability Act 2002 (“CLA”). 

Whilst it is customary in revisionary papers to apologise to seasoned practitioners for stating the “bleeding obvious”, the application of the CLA to claims involving negligence has added a layer of complexity to this area of law which presents a minefield even to an experienced practitioner. Although the CLA was enacted almost 20 years ago, both lawyers and judges have effectively ignored the wide-ranging effects of this legislation. 

Early in the piece, in 2007, the court in Markey v Scarborough Surf Life Saving Club Inc [2007] WADC 194 at [89], criticised the Plaintiff for his failure to properly plead an action in negligence. The Statement of Claim only pleaded the accident and damage.

In 2010, in The Department of Housing and Works v Irene Smith No 2 [2010] WASCA 25 at [53] and [54] His Honour Justice Buss, made the following comments: – 

“The submissions made to this court on the interaction of the common law principles, the Occupiers’ Liability Act 1985 (WA) (the ‘OLA’) and the Civil Liability Act 2002 (WA) (the ‘CLA’) were deficient.  Counsel for each of the parties said that it was unnecessary to determine the correct interaction between the common law, the OLA and the CLA because the outcome of the appeal would not be affected by whatever principles or combination of principles were applicable.

I do not accept that the appeal should be decided on this unsatisfactory basis.  Applicable statutory provisions cannot be disregarded.  The court must identify the proper legal framework and determine the appeal according to it.”

In 2012, in Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [ No 2] [2012] WASCA 212 at [47], Chief Justice Martin stated as follows: –

“The parties have taken the same approach on appeal. Neither at trial nor on appeal have the parties directed submissions to the interrelationship between the common law and the two statues, or as between the two statutes themselves, given that they cover, to some extent the same field. Because this court lacks the benefit of submissions or argument on these important issues, this case does not provide an appropriate vehicle for their resolution. This is regrettable. It seems that much tort litigation in this State is being conducted as if the legislation had never been passed, on the basis, as here, that the application of the legislation would make no material difference to the outcome.”

More recently in Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17 at [150], the Court of Appeal criticized the Trial Judge in the following terms: –

“The task of the judge was to consider separately, each of the identified precautions and make findings (one way or another) as to whether the failure to take relevant precaution was causative of the plaintiff’s injury. His Honour’s reasons, with respect, tend to obscure, rather than illuminate, the findings which it was necessary for his Honour to make under s 5B and s 5D of the Civil Liability Act.”

Firstly, I wish to make it clear that my reference to the above cases is not intended to embarrass either counsel or the bench as to any percieved shortcomings on their part.  It is effectively to illustrate that the personal injuries fraternity have largely been asleep at the wheel when it comes to the application of the CLA.

In the short time available to me, I hope to draw out and focus attention on what are the essential ingredients in successfully pursuing a Public Liability claim.

What do we mean by Public Liability?

As the name suggests, Public Liability claims encompass injuries that occur in public places such as parks, leisure centres and sporting venues. It also includes injuries on private premises such as rental premises, shopping centres and school yards. A large proportion of these claims deal with duties imposed upon Occupiers of premises as provided by the provisions of the Occupiers Liability Act. It is therefore necessary to consider the interrelationship between the CLA and the Occupiers Liability Act. Time prohibits me from doing so on this occasion, as such comparison warrants the provision of a separate seminar. I commend to you the article “Occupiers’ Liability and Civil Liability Legislation’, jointly authored by Brenda McGivern and Peter Hanford and reported in 2015 in the Melbourne University Law Review.

The fundamental elements of an action in negligence

When pursuing an action in negligence, one needs to establish: 

  1. A duty of care existing between the Plaintiff and the Defendant; 
  2. A failure of the Defendant to meet the requisite standard of care commonly described as a breach of duty;
  3. The Plaintiff having suffered injury; and
  4. A causal nexus between the Plaintiff’s injury and the Defendant’s breach.

The CLA was enacted to limit the scope of potential liability for negligence by: 

  1. Modifying the elements of breach of duty and causation; 
  2. Limiting a duty of care owed by certain parties such as professionals, public authorities, volunteers and food donors; 
  3. Imposing plenary restrictions on damages; and
  4. Introducing defences to negligence claims. 

The CLA prescribes certain relationships where a duty of care will not exist.

Section 5I(1) states that a person (impliedly the controller or supervisor of recreational activity) does not owe a duty of care to a Plaintiff engaging in recreational activity where a risk warning (as defined by the section) is provided. 

Section 5O(1) states that a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

Section 5S(1) states that a Defendant does not owe a Plaintiff a duty of care not to cause the Plaintiff mental harm, unless the Defendant ought to have foreseen that a person of normal fortitude might in the circumstances have suffered a recognised psychiatric illness if reasonable care was not taken. 

Duty of care

The Ipp Review was not tasked to provide a general formula where a duty of care would exist for very good reason. For over 70 years, the High Court has anguished as to whether to devise a universal formula for the existence of a duty of care. The High Court’s anguish was best expressed by Justice Kirby in Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337at [244]:

“The search for a simple formula may indeed be a will-o-the-wisp”. It may send those who pursue it around in never ending circles that ultimately bring the traveller back to the very point at which the journey began”

Accordingly, the existence of a duty of care was left for determination by common law precedent and the incremental approach of deciding new cases on their own facts and deciding as to whether it was reasonable in all the circumstances to impose a duty of care. In deciding whether it is reasonable to impose a duty of care, the court will have regard to the following matters including: 

  1. Reliance by the plaintiff on the defendant. See Hill v Van Erp (1997) 188 CLR 159.
  2. An assumption of the responsibility by the defendant. See Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.
  3. The defendant’s knowledge of and control over the conditions from which the risk of injury arises. See Crimmins v Stevedoring Industry Finance Committee (1998) 200 CLR 1.
  4. The plaintiff’s dependence on the defendant to exercise reasonable care in the defendant’s undertaking. See Perre v Apand Pty Ltd (1999) 198 CLR 180.
  5. The vulnerability of the plaintiff to harm from the defendant’s conduct. See Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [23].
  6. The physical, geographical, and commercial propinquity of the parties, in the activities of each in which one suffered and the other caused, the harm. See Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

In order to follow the court’s reasoning in making a determination as to the existence of a duty of care where no established relationship existed, I would recommend you read paragraphs 128 to 145 of the Miloradovic decision. 

Standard of care and breach

The test for standard of care is provided by s 5B of the Civil Liability Act. 

Division 2 – Duty of care

5B General principles

  1.  A person is not liable for harm cause by that person’s fault in failing to take precautions against a risk of harm unless – 
    1. The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and 
    2. The risk was not insignificant; and
    3. In the circumstances, a reasonable person in the person’s position would have taken those precautions.
  1.  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) – 
    1. The probability that the harm would occur if care were not taken; 
    2. The likely seriousness of the harm; 
    3. The burden of taking precautions to avoid the risk of harm;
    4. The social utility of the activity that creates the risk of harm. 

Commentary

Section 5B of the Civil Liability Act is non-controversial in that it includes a restatement of what was known at common law as the Shirt calculus. However, there are a number of refinements, which should not be ignored. Those refinements are as follows:

  1. The section is prefaced by the term “risk of harm.” As was stated by Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 at [59] 

“it is only through the correct identification of the risk that one can assess what a reasonable response to the risk would be.” 

It is not a straight-forward exercise to properly formulate a risk of harm in that it should not be framed too generally and should not be formulated too specifically as to represent the harm that actually materialised. This difficulty was illustrated in the recent WA Court of Appeal decision of Nikolich v Webb [2020] WASCA 169. 

Ms Nikolich had brought a claim in negligence against the owner of short-stay accommodation after she suffered personal injuries when she slipped and fell on a wet bathroom floor. Ms Nikolich was unsuccessful in establishing a breach of duty of care by the owner. On appeal, Ms Nikolich unsuccessfully challenged the trial judge’s findings that the risk of injury was obvious and the owner thereby did not owe her a duty of care pursuant to s 50 of the Act. In the course of argument, Ms Nikolich challenged the trial judge’s identification of the risk of harm as being “the risk of a person slipping and falling on the wet bathroom floor.” In finding that the trial judge was correct in his identification of the risk, the court stated at [68] and [69]:

“It is for the parties to identify the legal and factual target that is contended for; it should not be something for the trial judge to tease out of questioning of counsel or by after-the-event consideration of how the case was run. Proper articulation of the relevant risk of harm should be the norm whenever the CLA’s provisions fall to be applied. 

In identifying the risk of harm: 

  1. The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
  2. The risk must be defined, taking into account the particular harm that materialised and the circumstances in which that harm occurred. 
  3. What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, for example because:
  1. It obscures the true source of the potential injury;
  2. It too narrowly focusses on the particular hazard, which caused the injury; or 
  3. It fails to capture part of the plaintiff’s case”.
  1. What was previously required at common law as “reasonable foreseeability” has now been separated into three elements, namely:
  1. Foreseeability where the risk was known or should have been known;
  1. The risk is not insignificant; and 
  2. A reasonable person would have taken precautions to guard against the risk. 
  1. At common law, the test of a risk coming to fruition was that of not being far-fetched or fanciful. Section 5B now imposes a test of not insignificant. The application of the term “not insignificant” was designed to overcome what was perceived as being too low a hurdle in establishing foreseeability. 

The term fell for judicial consideration in the recent case of Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205. 

In that case, Ms Lightfoot was a passenger in the defendant’s boat on a dolphin watching tour. As the boat navigated a reef passage, a large wave caused it to rise and fall sharply resulting in Ms Lightfoot rising out of her seat and coming down hard on her buttocks. Ms Lightfoot sustained a back injury as a result. Ms Lightfoot was unsuccessful at first instance and appealed the decision of the trial judge on two grounds, namely that her injury was foreseeable and secondly that the Respondent had failed to discharge its duty of care by navigating an alternative passage. 

The Court of Appeal at [55] held that; 

“s 5B of the CLA requires the risk to be ‘not insignificant’. This imposes a more demanding standard than the common law test of foreseeability, albeit not by very much.” 

The Court of Appeal identified the “risk of harm” as being the risk that a passenger would be injured as a result of a boat encountering a large swell or wave while travelling through the reef passage. The Court of Appeal arrived at the conclusion that the risk of harm was not foreseeable and not insignificant in that there was nothing in the prevailing conditions which would have alerted a reasonable person in the skipper’s position to a foreseeable and not insignificant risk that a large swell or wave might be encountered in the reef passage, which could cause injury to a passenger. 

The case highlights that in interpreting the phrase ‘not insignificant’ the assessment to be made:

  1. Prospectively and not retrospectively. In other words, knowledge (whether active or constructive) must be assessed at the time of the negligent act,
  2. From the perspective of a reasonable person having at his disposal all the information available to the defendant at the time. 
  1. The final element of 5B, (‘the Shirt calculus”) is to weigh up the conduct of the reasonable person. It should be noted that s 5B(2) provides a non-exhaustive list, thus enabling other factors to be considered should they be thought relevant to the conduct of a reasonable person. 

Causation

The test for causation is provided by s 5C of the Civil Liability Act. 

5C General principles

  1.  A determination that the fault of a person (the tortfeasor) caused particular harm comprises of the following elements:
    1. That the fault was a necessary condition of the occurrence of the harm (factual causation); and 
    2. That it is appropriate for the scope of the tortfeasor’s liability to extend to the harm caused (scope of liability).
  1.  In determining, in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) – 
    1. Whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
    2. Whether and why the harm should be left to lie where it fell.
  1.  If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault – 
    1. Subject to paragraph (b), the matter is to be determined by considering what the injured person who have done if the tortfeasor had not been at fault; and
    2. Evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible. 
  1.  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor. 

5D Onus of proof

In determining liability for damages of harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 

Commentary

The following matters concerning the section warrant consideration:

  1. The particular harm referred to in the section refers to the harm that materialised and therefore must be viewed in contradistinction to the harm referred to in s 5B. 
  1. The section changes the test of causation in respect of negligence cases. At common law it was sufficient that, as a matter of ordinary common sense and experience, the defendant’s negligence should be regarded as having ‘materially contributed’ to the harm, in the sense that the contribution was not negligible: McGhee v National Coal Board [1973] 1 WLR 1; Western Australia v Watson [1990] WAR 248, 286; Lyle [40].
  1. Section 5C requires a plaintiff to prove that the negligence was a necessary condition of the occurrence of the harm. Factual causation is established through the application of the “but for” test. In circumstances where there are multiple causes of the plaintiff’s harm, the plaintiff must establish, on the balance of probabilities that, but for the defendant’s negligence, the plaintiff’s injury would not have occurred. 
  1. In circumstances where there is an evidentiary gap which precludes a finding of factual causation on the “but for” analysis s 5C(2) falls for consideration. Such cases will include circumstances where it is difficult to ascertain contributors to the harm (Bonnington Castings v Wardlaw [1956] AC 613) or where the state of medical science makes it impossible to prove the cause of the injury (cases of mesothelioma). 
  1. Section 5C(2) allows causation in an “appropriate case” to be dealt with in accordance with “established principles”. 
  1. The CLA does not define what is meant by “appropriate case” nor “established principles”. 
  1. The High Court in Strong v Woolworths Limited T/AS Big W and Anor [2012] HCA 5 dealt with the NSW equivalent provisions of s 5C and acknowledged that the High Court had not yet considered and made a judicial pronouncement on the operation of the equivalent provision of s 5C(2). 
  1. Judge Derrick in Sunday John Mabior v Child Adolescent Health Service [2018] WADC 12 at [812] provided by way of dicta, that the common law test of negligence could be applied in 5C(2). 

Contributory negligence

Section 5K prescribes the standard of care that is required of a person who suffers harm. 

5K Standard of contributory negligence

  1. The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
  1.  For that purpose – 
    1. The standard of care required of that person who suffered harm is that of a personal person in the position of that person; an 
    2. The matter is to be determined on the basis of what that person knew or ought to have known at that time. 

Commentary 

Section 5K, unlike its Eastern States counterparts, does not provide a total defence to the plaintiff’s claim. Section 5S in NSW allows for a 100% reduction if the court considers such reduction just and equitable. 

The standard applicable is an objective one being that of a reasonable person in the plaintiff’s position. 

It should be noted that the standard is directed to the risk harm that has been identified by the plaintiff and therefore allegations of contributory negligence should respond to the risk of harm and should not be cast in general terms such as failure to take reasonable care or failure to take any steps to avoid a risk of harm etc. 

The effect of section 5K of the CLA fell for consideration by the Court of Appeal in Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212.

The unfortunate 23 year old plaintiff was born with a number of disabilities including cerebral palsy, intellectual disability, profound deafness, near blindness, inability to speak and spastic diplegia. In 2006 he attended the Aquatic Centre in South Hedland. He mounted a diving block and dived into the shallow end of the swimming pool striking his head on the bottom of the pool, fracturing his cervical spine, rendering him a quadriplegic. He sued the Town of Port Hedland as the owner of the swimming pool and the YMCA who managed the swimming pool. The trial judge found for the plaintiff in his claim against the Town of Port Hedland holding that it breached its duty to him in failing to remove the diving blocks which were known to pose a danger to users of the swimming pool. The trial judge found that the plaintiff had contributed towards his injuries and apportioned liability 90/10 in the plaintiff’s favour. In construing the principles in section 5K, the trial judge determined that he was required to apply the standard of care required of a reasonable adult without the disabilities suffered by the plaintiff. By a majority, the Court of Appeal upheld the plaintiff’s appeal on this issue albeit for different reasons. Chief Justice Martin at [232] found that the section properly construed requires the court to determine whether the plaintiff has failed to take reasonable care for his or her own safety by reference to the conduct that might be expected of a reasonable person in the position of the plaintiff, having any physical defects or incapacities suffered by the plaintiff, or if the plaintiff is a child or is elderly, having regard to the infirmities that would generally be associated with such an age. The objective nature of the test to be imposed requires the court to exclude from consideration idiosyncrasies of temperament, behaviour or personality. Applying such reasoning, the Chief Justice concluded that the trial judge was wrong to assess contributory negligence without regard to the plaintiff’s disabilities. The Chief Justice honed in on the plaintiff’s blindness as being the most relevant in the circumstances. He concluded that whilst the plaintiff was able to see well enough to respond to the invitation posed by the presence of the diving blocks, he was deprived of the ability to ascertain the risk of diving into water which he was unable to assess as shallow. The Chief Justice went on to state that the question of whether intellectual disability is excluded from the operation of section 5K of the CLA is best left for determination in the context of a case where it is critical to the outcome.

Justice McLure approached the question differently. Her Honour was not persuaded that a finding of contributory negligence was open on the evidence. In this regard, her Honour affirmed that the starting point was the onus of proof in establishing contributory negligence which lay on the Town of Port Hedland. Her Honour adopted the trial judges finding that the diving blocks situated at the shallow end of the pool constituted an invitation to users to either dive or jump. An assessment as to the reasonable conduct of a pool user would call for assumptions to be made as to their level of experience and familiarity with the South Hedland Aquatic Centre. Justice McLure was not prepared to draw an inference that a reasonable adult or adolescent would be familiar with the risks associated with diving from blocks into a swimming pool. Accordingly, based on this reasoning the Town’s breach of duty, in failing to remove the diving blocks, exculpated the plaintiff appellant from any form of contributory negligence.

Ironically, the efforts invested by Justice Ipp in attempting to ensure that the CLA applied the same objective standards of care to injured plaintiffs as to tortfeasors appears to have been undone by the wording of section 5K. If CJ Martin’s analysis is correct then section 5K has changed the common law position to the advantage of the injured plaintiff.

Obvious Risk

The term obvious risk is found in Division 4 of Part 1A in its application to recreational activities and in Division 6 of Part 1A in its application to assumptions of risk.

The relevant sections provide as follows:-

5H. No liability for harm from obvious risks of dangerous recreational activities 

        (1) A person (the defendant ) is not liable for harm caused by the defendant’s fault suffered by another person (the plaintiff ) while the plaintiff engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity. 

        (2) This section applies whether or not the plaintiff was aware of the risk. 

        (3) This section does not apply if — 

  1. the plaintiff has requested advice or information       about the risk from the defendant; or 
  2. the defendant is required by a written law to warn the plaintiff of the risk. 

(4) Subsection (3) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 

5F. Term used: obvious risk 

  1. For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. 
  1. Obvious risks include risks that are patent or a matter of

common knowledge. 

  1. A risk of something occurring can be an obvious risk even

though it has a low probability of occurring. 

  1. A risk can be an obvious risk even if the risk (or a condition

or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 

5N. Injured person presumed to be aware of obvious risk 

  1. In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. 
  1.  For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 

5O. No duty to warn of obvious risk 

  1.  A person (the defendant ) does not owe a duty of care to another person (the plaintiff ) to warn of an obvious risk to the plaintiff. 
  1. This section does not apply if — 
  1. the plaintiff has requested advice or information about the risk from the defendant; or 
  2.  the defendant is required by a written law to warn the plaintiff of the risk; or 
  3. the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant. 
  4.  Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 

Commentary

The question as to what constituted an obvious risk within the meaning of dangerous recreational activity fell for consideration in Dixon v Apostolic Church Australia Limited [2017] WADC 88. The Plaintiff suffered injuries when she lost control of a go-kart she was driving and crashed into a tree. The Plaintiff sued a number of defendants including the Apostolic Church who organised the go-karting event. The Apostolic Church raised a number of defences including that of obvious risk associated with a dangerous recreational activity pursuant to s5H CLA. The trial judge found that the go-karting activity was not a dangerous recreational activity but in the event that such finding was wrong, her Honour went on to consider whether the activity posed an obvious risk within the meaning of s5F CLA. Her Honour determined that the section required her to ascertain what would have been apparent to a reasonable person in the position of the Plaintiff. In conducting that enquiry, the trial judge found that it would not have been apparent to a reasonable novice driver how readily the racing go-kart could lose traction on a corner and that it might not be so easy to regain control. Although the bollards and trees on the western side of the course were protected by barriers, the risk of the go-kart hitting these obstacles at speed was not obvious. Her Honour found that to an inexperienced go-kart driver it appeared as though appropriate safety precautions had been taken. Her Honour ultimately found that the risk of a participant losing control of a kart, veering off the track and hitting a stationary object and suffering injury was not obvious. This was the risk of harm that had been agreed on by the parties during the course of the hearing. The case highlights the need to identify the risk of harm before applying the test of obviousness as provided by s5F CLA. 

The Court of Appeal has been called upon to consider the operation of s5O in two recent cases, namely Keven Gors by his Plenary Administrator Janet Christine Gors [2020] WASCA 164 and Nikolich v Webb [2020] 169.

In Nikolich the Court of Appeal made the following observations:-

  1. The obviousness of a risk is a question of fact [90],
  2. An ‘obvious risk” is one which is clearly apparent or easily recognised or understood [91]
  3. The test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account personal characteristics of the plaintiff; for example whether he or she was a child [91];
  4. Identification of the risk asserted to be obvious is an essential preliminary task in the determination of a defence under 5H [93];
  5. The identification of the risk is to be undertaken prospectively and without the benefit of hindsight [94];
  6. For the purposes of s50, the specification of the risk must nevertheless be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case [94].

In Gors, the Court of Appeal found that on its proper construction the operation of the section was not conditional on a plea of volenti.

A finding of obvious risk under s5F eliminates the defendant’s duty of care insofar as it involves a warning of such a risk [133].

S5O was only concerned with a duty to warn, leaving the defendant’s duty to take reasonable care otherwise unaffected. [112] 

Damages for Non-Pecuniary Loss

9. Restrictions on damages for non-pecuniary loss (general damages) 

  1. If the amount of non-pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss. 
  1.  If the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A. 
  1.  If the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows — 

        Amount A – (Amount assessed – Amount C)

  1. In this section — 

        Amount A has the meaning given by section 10; 

        Amount C has the meaning given by section 10; 

        non-pecuniary loss means — 

            (a)         pain and suffering; and 

            (b)         loss of amenities of life; and 

            (c)         loss of enjoyment of life; and 

            (d)         curtailment of expectation of life; and 

            (e)         bodily or mental harm. 

10A. Tariffs for damages for non-pecuniary loss 

  1. In determining damages for non-pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. 
  1. For that purpose, the parties to the proceedings or their counsel may bring the court’s attention to awards of damages for non-pecuniary loss in those earlier decisions. 
  1. This section does not alter the rules for the determination of other damages. 

Commentary

Section 9 does not seek to codify the assessment of non-pecuniary loss but merely imposes restrictions on the amounts that may be awarded. The principles to be followed in assessing damages are to be found in the common law as was affirmed by the Court of Appeal in Houlahan v Pitchen [2009] WASCA 104 at [107].  Newnes JA states:-

“ The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125. The amount must be proportionate to the situation of the particular plaintiff. While the court is entitled to refer to earlier cases for the purpose of establishing the appropriate award in the proceedings (s10A, Civil Liability Act), it is not a proper approach to endeavour to extract from the amounts awarded in earlier cases some norm or standard to determine the award by reference to that: Planet Fisheries (125).”

Section 9 imposes a threshold in the awarding of damages. Where damages are assessed at not more than $22,500 then no damages are to be awarded. Damages assessed at more than $22,500 are subject to a deduction as per the statutory equation until the assessed amount reaches $88,000.

At the end of each financial year amounts A and C are increased pursuant to section 13(3) of the CLA.

The provisions for restricting awards for non-pecuniary loss in the CLA are mirrored in the Motor Vehicle (Third Party Insurance) Act 1943, with the one exception being that the CLA does not impose a statutory cap.

The principles for the awarding of damages, would indicate that similar injuries with similar consequences should attract similar awards irrespective of whether the injury was inflicted by a motor vehicle or a defective premises. Accordingly, this anomaly in the legislation remains unresolved.

Section 10A CLA alters the common law position and allows the court to consider earlier decisions of the court or other courts in making an appropriate assessment.

In Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, Judge Herron at [716] expressed the view that assessment of damages in courts in other states should be approached with caution, because assessments of general damages from state to state varied.

Damages for Pecuniary Loss

11. Damages for loss of earnings 

  1.  In assessing damages for loss of earnings, including in an action under the Fatal Accidents Act 1959, the court is to disregard earnings lost to the extent that they would have accrued at a rate of more than 3 times the average weekly earnings at the date of the award. 
  1.  In subsection (1) — 

loss of earnings means — 

            (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or 

            (b) future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity. 

  1. For the purpose of this section, the average weekly earnings at the date of the award is — 
  1. the amount estimated by the Australian Statistician as the average weekly total earnings of full-time adult employees in Western Australia for the quarter ending most recently before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or 
  1.  if the Australian Statistician ceases to make the estimate of the amount referred to in paragraph (a), the amount fixed by, or determined in accordance with, the regulations. 

Commentary

Section 11 imposes a ceiling on the amount of damages which can be awarded for pecuniary loss representing 3 times the average weekly earnings for full-time adult employees in Western Australia as published by the Australian Bureau of Statistics.

The average weekly earnings published by the Australian Bureau of Statistics are Gross sums. In accordance with the usual assessment of economic loss, calculations are made on after tax earnings. The logical assumption is that tax needs to be deducted from the statutory cap. As no Western Australian court has as yet considered the operation of the section, the position remains as yet uncertain. 

12. Damages for provision of home care services 

  1.  This section deals with the awarding of damages for gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is sought by a member of the same household or family as the person. 
  1.  No damages are to be awarded for the services if the services would have been, or would be, provided to the person even if the person had not suffered the personal injury. 
  1.  If the amount of damages that could, if this subsection did not apply, be awarded under subsection (5) or (7) is Amount B or less, no damages are to be awarded for the services. 

        (4) In subsection (3) — 

  Amount B has the meaning given by section 13. 

        (5) If the services are provided or to be provided for not less than 40 hours per week, the amount of damages awarded for them is not to exceed the amount calculated on a weekly basis at the rate of — 

            (a) the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter; or 

            (b) if the Australian Statistician ceases to make the estimate referred to in paragraph (a), the weekly amount fixed by, or determined in accordance with, the regulations. 

(6) In subsection (5)(a) —

relevant quarter means — 

            (a) the quarter in which the services were provided; or 

  1.  if at the date of the award an estimate as referred to in subsection (5)(a) is not available to the court for that quarter or the services are yet to be provided, the most recent quarter for which such an estimate is available to the court at the date of the award. 

       (7) If the services are provided or to be provided for less than     40 hours per week, the amount of damages awarded for them is not to exceed the amount calculated on an hourly basis at an hourly rate that is one-fortieth of the weekly rate that would be applicable under subsection (5) if the services were provided or to be provided for not less than 40 hours per week. 

Commentary

Section 12 both informs the common law and restricts the damages that were available to the plaintiff at common law.

The starting point is to determine the services that are required by the plaintiff to satisfy his need resulting from the defendant’s wrong.

The services must have been reasonably required by the plaintiff as the result of his physical condition attributable to the accident. See Griffiths v Kerkemeyer (1977) 139 CLR 161 at 164.

In determining the needs of the plaintiff, the relationship between the plaintiff and the person providing the services needs to be considered. See Van Gervan v Fenton (1992) 175 CLR 327 at 340-341.

The award of damages under this head of damage must be proportionate to the magnitude of the loss suffered by the plaintiff. See Hodges v Frost (1984) 53 ALR 373 at 381.

Section 12 sets a rate per hour based on one-fortieth of the average weekly total earnings of all employees in Western Australia which is currently $33.37 per hour.

Section 12 imposes a threshold currently set at $7,000. If the total cost of gratuitous services does not exceed $7,000, no sum is recoverable under this head of damage.

Section 12 also imposes a maximum claimable sum per week based on 40 hours per week of the average weekly total earnings of all employees in Western Australia which is currently $1,335 per week.

Pleading a negligence action where the Civil Liability Act applies

As I detailed at the onset of this discussion, the profession has come under attack from the Court of Appeal as to its persistent failure to properly address the requirements of pleading an action in negligence, which is affected by the CLA. 

In order to overcome these objections, I suggest that the following need to be included in a Statement of Claim: 

The relationship between the parties should always be pleaded in any event. 

Where the relationship is a recognised relationship imposing a duty of care, the content of that duty of care should be pleaded. 

If the relationship is one that has not been previously recognised, then material facts militating towards a duty of care should be pleaded. Those facts should include the following:

  1. Reliance of the plaintiff on the defendant; 
  2. An assumption of responsibility by the defendant; 
  3. The defendant’s knowledge of and control over the condition from which the risk of injury arises; 
  4. The plaintiff’s dependence on the defendant to exercise reasonable care in the defendant’s undertaking;
  5. The vulnerability of the plaintiff to harm from the defendant’s conduct; 
  6. The physical, geographical and commercial propinquity of the parties, in the activities of each in which one suffered and the other cause, the harm; and
  7. The existence of statutory powers to take action.

In pleading breach of duty, the following matters should be pleaded:

  1. The risk of harm against which precaution should have been taken; 
  2. The defendant’s knowledge of risk of harm, either actual or implied; 
  3. An allegation that the risk of harm was not insignificant supported by particulars; 
  4. An allegation that a reasonable person in the defendant’s position would have taken specific precautions against the risk of harm supported by particulars. 

In pleading causation, the pleading should either plead factual causation pursuant to s 5C(1) or facts supporting the allegation that case is an appropriate case within the meaning of s 5C(2) and the established principles upon which the plaintiff relies. 

The pleading should then identify and particularise the damages suffered flowing from the breach. 

The CLA also requires a defendant to specifically plead the statutory defences that it seeks to rely on and in so doing there is a need to analyse the requirements of each defence and plead the material facts that support such defence and to inform the plaintiff of the case that he or she must meet.

A plea of contributory negligence will not be satisfied by pleading generic failure to exercise proper case for the Plaintiff’s own safety but will need to address the specific “risk of harm” identified in s5B and need to plead the specific acts or omissions contended by the defendant.

Similarly, if the defendant wishes to rely on “obvious risk” as a means of denying a duty of care in respect of a dangerous recreational activity or a duty to warn, the specific provision of the CLA needs to be pleaded. The specific risk that is said to be obvious needs to be pleaded as well as the factual basis upon which it is contended that the risk was obvious to the plaintiff.

In the final analysis the provisions of the CLA require personal injury practitioners to engage in intellectual rigour which better crystalizes the issues between the parties and leads to more efficient and just outcomes.

Raoul Cywicki

Barrister-At-Law

Sir Clifford Grant Chambers

9 June 2021