Background of the Case
In the said case the plaintiff was socializing and drinking around certain cliffs that were being managed by the Defendant.[1] She by mistake walked off this cliff thereby injuring her self seriously in the process. The defendant was sued by the plaintiff on the account that there was a failure on the part of the Defendant to provide a fence so that the risk could have been prevented.
Issue
The High Court of Australia in the said case was reengaged in the difficult issue of the liability of a public authority which was there under common law. This area of law, as has been noted by Kirby J. in the said judgment has been described as being unsettled, unsatisfactory which lacks practical and foreseeable outcomes and as operating as inefficiently and ineffectively. This case is considered to be another successor to the case of Nagle v Rottnest Island Authority[2] a decision that had placed on the statutory authorities a heavy onus for avoiding any type of liability in case of negligence. It was never disputed in the said case that there was duty of care which was owed by the authority. However the issue in the case was the nature, content and origin of the said duty and the application of authorities which were relevant and this was dealt in the Court’s six separate judgments.
Therefore the main issues that were raised in the said case was with respect to:
- Breach of Duty
- Calculus of negligence; and
- Obvious Risk.
Rule of Law
The case of the appellant in the said case was that there was a breach of duty on the part of the Commission towards the plaintiff to prevent her from falling as they had not installed lighting that was adequate, there was no warning that was given with respect to the cliff’s presence or there was no barrier or fence that had been erected by them on the edge of the cliff.
There has been a replacement of the old occupiers’ liability with the principles of general negligence in the case of Australian Safeway Stores v Zaluzna[3], it appeared in this case that the statement of the appellant was framed in the terms of this liability which was outdated. However, reliance had been placed by the appellant at the time of argument on the rule of law that has been established under the Nagle case that there should have been positive steps that the Commission should have taken with respect to the prevention of fall from the cliff. It was argued that all that is necessary for imposition of a duty was that the risk was foreseeable that there was a chance that there was someone who could fall down the cliff, especially given that that many visitors to the place, were youthful and exuberant and there was also a possibility which was there of alcohol consumption. On the other hand it was argued by the respondent that the case of Nagel was a distinguishable one, and even if the case wasn’t a distinguishable one, it needed to be spawned as putting upon the public authorities a duty which was too great of controlling the land which was in use by the public. In the case of Nagle[4] the island was being controlled by the statutory authorities had encouraged the public to swim over there to was found that there was breach of duty to care towards the swimmers as there was failure on the part of the statutory authority to warn with respect to the dangers that were there of diving into the water and striking on the rock that was submerged. The standard of care was set down in the case by majority as ‘the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed.’ Taking into account ‘the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her, own safety." Angel J. the trial judge in this case had refused the case of appellant. The Nagel Case was distinguished on the basis that in that case there was a failure to warn regarding a danger which was hidden where if there would have been a warning sign the same would have acted as a deterrent that was effective. The trial judge in its judgment relied on the judgment by Dixon J in the case of Aiken v Kingborough Corp[5]. in which there was duty that was owed by the public authority which was described as ‘... [t]he member of the public, entering as of common right, is entitled to expect care for his safety measured according to the nature of the premises ...[T]he public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise ofordinary care.’ The operational/policy distinction was also invoked by Angel J. which was explained in the case Sutherland Shire Council v Heyman[6], where it was maintained that there should not be deciding upon questions related to policy by the court which was entrusted by the legislature upon the statutory authority. The decision of the commission as to whether or not there should have been positive steps to sign or fence the area would have involved questions relating to resources and budget allocation which by statute was the Commission’s responsibility and not the aspect to be adjudged by the court.
Application
On application of the rules of law it was opined in this case that only because there was a foreseeable risk it does not mean that there is requirement to do something. It is not correct to read the past authority as that any risk that can be reasonably foreseen however, remote the same might be, must in every situation be guarded against. There should rather be measures and these measures would be determined by inquiring into the circumstances that were relevant. The factors which were considered in this case were[7]:
Low probability: There was no injury that had occurred in the area in the last 100 years hence the probability of harm was low.
Limited Source: Since the defendant is a public authority the resources are limited and spending money for accidents that are improbably would mean siphoning resources from something important.
Obvious Risk: The Plaintiff should have known regarding the danger that was obvious.
The fencing would damage the ‘Natural’ look of the area.
High Burden: The burden is very high for erecting a fence everywhere therefore the risk would be costly as well undermining aesthetic site’s attraction.
There are various interesting examinations of rules of law that have been furnished in the case of Romeo from various different perspectives relating to the liability for negligence of a public authority that is exercising over a land control, it was a case which precedentially rather perplexing for the application of the rules of law. There was diversity which is was with respect to the expressed judicial opinion, even amongst those judges which formed the majority while applying the rules of law to the case, thereby making the said case not entirely satisfactory on the question of whether there has been a proper application of the various authorities which are there.[8] The example which is obvious is the rule of law which was established in the case of Nagle, on one hand it was lamented by the Chief on one hand that there was an inordinate burden that had been placed on the public authorities yet it was insisted by Hayne J. on the other hand that there was no new principle that was being established by the Nagle Case and all of the judges except the Chief Justice seems to have applied the principle established in the said case. It was even acknowledged by Kirby J. that there was a considerable criticism that this case subjected to. The Aiken Case was also given a weight that was differing by the majority judges. Brennan CJ was certain that this case completely defined the standard of care which was relevant. For Toohey, Gummow and Hayne, all thought that it was required that it should be read in the light of the Nagle case[9]. Kirby J. on the other hand insisted that the same should be rejected and the forgotten completely. It is quite interesting to note that all the majority judges, expect Hayne J. perhaps, considered that there was an obviousness with respect to the danger and a lack of care by appellant herself, thus limiting the factors which had been enunciated in the case of Aiken. The issues that was central to the case was with respect to the standard of care that was owed and whether there was breach of such standard of care, a point that was critical for separation of most of majority from the minority was the fact as the how much it was required of the cliff to be fenced according the case of appellant.[10] It was thought by the minority Gaudron J. that only the area which was near the car park was to be fenced, to which it was added by McHugh J that there were other areas as well from where it was likely that the fall would occur. It was however believed by the majority Gummow, Kirby, Toohey and Hayne JJ believed that it would be important for the Commission to fence the entire cliff for two kilometers, had the argument of the appellant been made out. Though, interestingly the issue was that of “causation” which could not be divided along the lines of majority and minority. The minority judges obviously thought that there was a proof of causation although it was agreed by them that there could also have been contributory negligence but Gummow, Kirby and Toohey JJ there was an agreement regarding causation being made out had there been a breach in duty of erecting a fence of wire.[11] The issue further was that there was compounding of the case further by the mysterious manner in which the girl had fallen off the cliff which could not be resolved conclusively. With respect to the distinction between policy/operation among those who even had mentioned the issue none of the High Court judges were prepared really to committing themselves on a thorough examination or a statement that was definitive with respect to the issue.
Conclusion
The concept that there were certain kinds of decisions which are non-justifiable which were made by the governmental authority does appear to exist as a principle which is recognizable, but the only conclusion which can be drawn certainly about this case is that the ratio of this case shall not come to play in the case where on substantive grounds a matter can be dispensed such as there being no substantive ground for breach of duty. There might be a sense of relief that is felt from the public authorities who have been given the charge of the management and control of the land of the public including the insurers, for the Nagel case does not appear to yield the outcome in their favor and that a risk which is foreseeable is not equalt to foregone conclusion that there will be a liability on the authority. Although there does not exist a coause for complacency, as there is no settlement in this area of law and there are a number of interpretation which can be provided by this case on the public authorities liability since Nagel.
References
Aiken v Kingborough Corp [1939] 62 CLR 179 at 209
Australian Safeway Stores v Zaluzna [1987] 162 CLR 479
Nagle v Rottnest Island Authority [1993] 177 CLR 423
Romeo v Conservation Commission [1998] 151 ALR 263
Sutherland Shire Council v Heyman [1985] HCA 41
