Romeo V Conservation Commission Of The Northern Territory : Liability Of Public Authority For Negligence

Discuss about the Case of Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.

The key issue in Romeo v Conservation Commission of the Northern Territory[1] case is whether the authority is liable for not creating a barrier along the two-kilometre-long cliff. Alternatively, it was argued that whether it is the duty of the Conservation Commission for erecting a warning sign near the car park for warning people about the danger of the cliff. The issues in the case are linked with breach of duty, obvious risk and calculus of negligence.

Negligence is referred to a breach of the duty of care which causes injury or loss to an entity or a person to which the duty is owed. There are three essential elements of the law of negligence which include the duty of care, breach of such duty and damages. The calculus of negligence is defined as a process of determining whether a legal duty has been breached or not. As per the principle of common law, a duty of care is not present in a circumstance where a person has voluntarily assumed a risk which then materialises. An obvious risk is referred as a risk which would have been obvious to a reasonable person[2]. The High Court of Australia faces an issue of ascertaining the liability of a public authority based on the principles of common law. The case is considered as a successor of Nagle v Rottnest Island Authority[3] case in which the judgement was given that statutory authorities have to strictly implement policies for avoiding liability in case of negligence[4]. In Romeo v Conservation Commission of the Northern Territory case, the court never disputed that the authority did not have a duty of care, but, the judges argued that the issue is nature, content and origin of the duty of care of the authority.

In this case, the appellant argued that the Conservation Commission of the Northern Territory has a duty to erect fencing across the cliff in order to prevent people from falling off the cliff. There was no adequate lighting, no warning sign regarding the danger near the cliff and n barrier or fence to prevent people from falling off the cliff. The principle of old occupiers liability has been changed by the doctrine of general negligence as provided in the case of Australian Safeway Stores v Zaluzna[5]. The statement given by the appellant, in this case, is provided based on an out-dated definition of the liability. However, the appellant took the reliance on law that the commission should have taken the right step of erecting a fence near the cliff to prevent people from falling off the cliff. It was argued that in order to impose a duty, the risk is necessary to be foreseeable. It was argued in the case that probability of someone falling off the cliff is substantially high, especially considering the fact that a large number of people visit the place and most of them are youth and alcohol consumption is common at the place[6]. On the other hand, the respondent argued that in the case of Nagle was a distinguishable one and the duty of public authority was too great in order to control the land which was in use of the public.

Calculation of Negligence and Obvious Risk

As per the facts of the Nagle case, authorities are responsible for preventing any injuries at the island, and they were also encouraging people to swim near the island. However, authorities failed to warn people about the risk of diving in the water due to which they have breached their duty toward the general public because it might result in causing injuries to the public[7]. In this situation, it is reasonable to understand that a guard against the foreseeable risk is necessary. The Nagle case was distinguished because it failed to warn regarding a foreseeable danger and there should be a warning sign to avoid any danger. In this case, the judgement given by Dixon J was based on the case of Aiken v Kingborough Corp[8] in which it was held that a duty is owed by the public authority if the safety of the public is controlled by the authority to prevent injury which might cause loss or injury to the general public[9]. The question is whether the commission should have erected fences across the cliff is related to resources and budget allocated by statute and not the aspect to e adjudged by the court.

As discussed in the rule above, it has been cleared that just because there was a foreseeable risk, it does not enforce that there is a requirement to do anything about the risk. It is not right to apply the decision of past authority in this case which provides that it does not matter how remote a risk is, if it is foreseeable then the authority should take action to prevent people from getting injured. Each circumstance has different measures which should be determined by the court in order to assess the duty of care of a party[10]. Following are different arguments which were given in the case:

Low probability: It was argued by the respondent that no injury has occurred in the area in last 100 years which means that the probability of harm was substantially low.

Fencing: Putting of fencing would damage the main attraction of the area which was its natural look.

Limited resources: The defendant is a public authority, and its resources are limited and spending them on accidents that are improbable means it would reduce the resources that could be spent on something important.

High burden: The burden of erecting a fence across two kilometres of the cliff is high, and it would be costly, and it would damage the attraction of the site.

Obvious risk: The risk was obvious, and the plaintiff should have known regarding the risk.

The appellant argued that the authority must take proactive actions for preventing any injury from occurring due to the foreseeable danger. An obvious example of Nagle case was given in which it was held that the authority has a burden to take appropriate action to avoid any injury to happen[11]. However, it was provided that based on this case, an inordinate burden is put on the authority and Hayne J argued that the Nagle case did not put any new principle to the said case. The Toohey, Gummow and Hayne provided that this case should be read in the light of the judgement of Nagle case. On the other hand, Kirby J argued that the principle given by this case should be rejected and forgotten completely[12]. Other than the majority of judges, Hayne J alone argued that the risk was obvious and the accident occurred due to lack of care by appellant herself. This argument results in limiting the factors which were given in the Aiken case.

Liability of Public Authority

The key issue in the case which was regarding the standard of care which was owed by the authority towards public and whether the authority has breached such care. The main arguing point between minority and majority of judges was the fact that how much was it necessary to erect fencing across the cliff[13]. Gaudron J argued that areas near the car parking should be fenced however McHugh J stated that there are other areas as well where fall might occur. The majority of judges which include Gummow, Kirby, Toohey and Hayne JJ believed that the authority should have put fencing across the two kilometres of the cliff. The minority judges argued that there could also be contributory negligence in the part of the appellant, however, Gummow, Kirby and Toohey JJ agreed on the fact that an agreement regarding causation has made between the authority and the party which means that there is a breach of duty[14]. However, none of the high court judges was committing themselves on a thorough statement or examination in respect of the issues of the case.

Conclusion

Based on the argument of the appellant it was held that the Commission has a duty of care regarding protection of the public, however, it was held that there is no substantive ground for breach of duty. A duty of care was owed, but the respondent did not breach that duty. It was provided that although the risk was foreseeable, the court is required to analyse all the circumstances of the case. It is necessary to consider how a reasonable person would have reacted to such risk. The argument of the respondent was accepted which provided that over 100 years no injury had occurred which proved that probability of injury was low. On the other hand, measure taken for protection would be substantially expensive. For a reasonable person, the danger would be obvious because it was a cliff. Conclusively it was held that the occupier could not be held liable because it is reasonable to assume that entrants will take reasonable care and the authority cannot be held liable for people who are under the influence.

Brenda, M and Handford P, "Two Problems Of Occupiers' Liability: Part Two-The Occupiers' Liability And Civil Liability Legislation" (2015) 39 Melb. UL Rev.

Burns, K, “It’s Not Just Policy: The Role of Social Facts In Judicial Reasoning In Negligence Cases” (2013) 21(2)  Torts Law Journal

Butler, D, Employer Liability For Workplace Trauma (Routledge, 2018)

Eburn, M and Geoffrey C, "You Own The Fuel, But Who Owns The Fire?" (2017) 26(12) International Journal of Wildland Fire

Giles, R, "Duty Of Care, Scope And Breach" (2009) 9(2) Journal of the Judicial Commission of New South Wales

Goudkamp, J, "The Defence Of Joint Illegal Enterprise" (2010) 34 Melb. UL Rev.

Jurkovsky, P, "The Tort Of Negligence, Standards Of Care And Vicarious Liability" (2012) 130 Law and Ethics: Australia and New Zealand

Lunney, M, A History Of Australian Tort Law 1901-1945 (Cambridge University Press, 2018)

Stapleton, J, "Factual Causation" (2010) 38(3) Federal Law Review

Stickley, A et al, "Predictive Technology And Natural Hazards: Risk For Australian Planning Authorities?" (2016) 8(1) International Journal of Law in the Built Environment

Aiken v Kingborough Corp (1939) 62 CLR 179

Australian Safeway Stores v Zaluzna (1987) HCA 7

Nagle v Rottnest Island (1993) HCA 76

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431