Breach of Statutory Duty: Problem Q.

Advise all parties of their rights and liabilities in tort.

Parties
Party Tort Facts
NSW Parks and Breach of Statutory duty Statutory authority for Green
Wildlife Service Negligence National park
Legislated requirement for
responsibility for proper care and
maintenance of national parks and
wildlife
The South Coast Contributory negligence to Protested back-burning
Green Coalition (& fire
Ben Boyd)
Sam (Ranger) Intentional Torts (trespass Threatened Ben if you are not
to person Assault, careful, we might just burn off
Battery) anyway. Thats fix you and your
greeny mates
Was assaulted by Ben (Ben through
possum dung at him)
Ben (Protester) Intentional Torts (trespass Threatened by Sam
to person Assault, Battered Sam
Battery)
South Coast Branch Negligence Statutory authority that
of Rural Bush Fire recommended to GNP to back-burn
Service Has statutory discretion to require
hazard reduction
Did not choose to use this discretion,
did mail, but not formal application
to back-burn
Department of Main Negligence Forbidden to smoke
Roads Trespass to property Smoked anyway
May have caused bushfire
Carlo (Bushwalker) Death (re: who can sue) Died of smoke inhalation
Negligence Wife was dependant
Was in park
Sue (greenhouse Negligence Neighbouring land
owner) Trespass to Land Destroyed by fire
Harry (trailer park) Pure Economic Loss Fire reduced tourism reduced income
Minor Actions

Ben v Sam (Battery)

- Sam throwing faeces at Ben would probably constitute a battery
- The requisite elements are:
o Intentional (either deliberate, reckless or negligent)
o Direct (requiring immediacy of action, directness of act and lack of an intervening act)
o Contact with the body (requiring a touch in anger, with hostility)
- Application to facts
o Bens act would be considered deliberate, responded by throwing ... dung at Sam
This would satisfy that the act was intentional (Holmes v Mather?)
o Direct causation. There is no issue of causation or novus actus interveniens
Satisfying directness (Hutchins v Moughan)
o Contact with the body
Missile touch is still a touch (Pursell v Horn water splashing, considered battery, no need
to establish touch, other than by the water)
- It is most likely that Ben would succeed in this claim
- Provocation is not available as a defense in tort

Sam v Ben (Assault)

- Bens threat to Sam If you are not careful, we might just burn off anyway. Thatd fix you and your greeny
mates
- The elements are:
o Intentional (intention =/ intention to follow through: Rixon V Star City Pty Ltd Proof of assault
requires proof of intention to create ... an apprehension of imminent harmful or dangerous
conduct ... not ... proof of an intention to follow it up or carry it through)
o Act or Threat (Stephens v Myers)
Words alone (Barton v Armstrong, R v Ireland)
o Apprehension of imminent harmful conduct (Brady v Schatzel; ex p Brady, Barton v Armstrong)
o Regarding conditional threat (Tuberville v Savage only conditional threat, Rozsa v Samuels
conditional threat w action, Police v Greaves extremely threatening conditional threat)
- Application of facts
o Intention to create apprehension of imminent harm
Nature of threat, esp. Specificity shows intent to create fear
Thus satisfied
o Act or threat
Threat, however, is words alone
There is no precedent for words alone, in person, constituting an assault, it is possible that
the action would fail here
o Apprehension of imminent harmful conduct
There is no evidence on the apprehension of harm by Sam
o Conditional threat
Again, this weakens the threat, as in Tauberville v Savage
Since it was not accompanied by any actions, and that the condition was not difficult to fulfil,
it is most probably that the assault action would fail here
- Given the weaknesses in the element act or threat and the lack of evidence of apprehension of imminent
harm, it is most probable that the action would fail

P v South Coast Green Coalition (False Imprisonment)

- Elements:
o Direct
o Intentional
 o Total deprivation of liberty
o Without reasonable means of escape
- This matter would fail immediately since:
o The green coalition only blocked one of many park entrances/exits, thus failing to satisfy without
reasonable means of escape
o No-one individual plaintiff was affected by the blockade, and thus no one was deprived of their
liberty

Green National Park v South Coast Green Coalition (Trespass to land)

- Elements:
o Direct
o Intentional
o sets foot upon his neighbours close
o Without permission
o Without lawful justification
- Application:
o Direct and intentional are not in contention
o On Ps property satisfied by camped on park land
o Without permission satisfied by despite being told by Park rangers that they were in breach of
regulations forbidding camping in the park
- However: D might have the defence of Lawful justification because of their protest, on govt land
- It is most likely that P will succeed in this action, and should proceed

Green National Park v South Coast Green Coalition (Nuisance)

- To do

Major Actions
Sue v NSW Parks and Wildlife Service (Negligence)

Elements
- Duty of Care
- Breach of Duty
- Causation
- Remoteness

Step by Step
Is it governed by the CLA? (s3B)

- Negligence is not excluded under s3B

Proportionate liability (s34)

- All defendants are to be served (s35A), and damages apportioned as required by the court to a total of 100%
(s45) with no several liability (ss(4)) except for cases of personal injury (s34(1)a))
- GNP is only one of the concurrent wrongdoers in this matter (alongside South Coast Green Coalition, South
Coast Branch of Rural Bush Fire Service and the Department of Main Roads)
- Re: vicarious liability of DMR?

Duty of Care

- There is no established duty for statutory authorities

o Sues property was outside of the park, therefore nullifying the occupiers established duty of care
- As such, the duty of care of the statutory authority must be established
 o First: leg^n internal to problem question to which the authority is subject: responsible for proper
care and maintenance of national parks and wildlife
Implies a duty to act properly
However, whether this includes back burning is moot, and thus preventing forest fires by
back burning must be seen as a discretionary power
Potential misfeasance (not proper[ly] caring properly or, more likely, nonfeasance, did not
properly care)
o Establishing the duty of care for a statutory authority (defn in s41) Things to consider:
Functions required to be exercised are limited by funding CLA s42(a)
Previous actions, as well as their half-hearted attempts imply an ability to excersize
this power
Allocation of resources is not up to the courts ss(b)
This is not in issue
Function must be considered in light of all functions of this power ss(c)
This is a central responsibility of this statutory authority?
Evidence of compliance with general procedure of all functions as evidence of specific
compliance ss(d)
Not used to create a duty
McHugh J in (Crimmins v Stevedoring Industry Finance Committee)
Would a reasonable public authority reasonable foresee that its acts or omissions
may result in an injury to the plaintiff or her interests?
o Yes, they wanted to back-burn and were thus aware of the risks of not doing
it
Was the authority in a position to control the situation which brought about the
harm?
o They could have prevented the harm
Was the injured person vulnerable?
o Yes, sue would not be able to prevent the harm herself
Did the authority know or out it to have know of an existing risk to the class of
persons who included the plaintiff?
o Ought to have perceived the fire spreading
Would the imposition of a duty of care impose liability for policy/quasi legislative
functions?
o Nope?
Is there any policy reason to deny a duty of care?
o Nope
However, duty of care has only been imposed twice in the HC
Pyrenees Shire Council v Day
Crimmins v Stevedoring Industry Finance Committee
Therefore improbable
o Previous excercise of a function does not impose a duty (s46)
o Plaintiff must have standing to sue, Wednesbury Test ss44(1)
Probably satisfied?
o It is improbable that the statutory authority would be satisfied

Breach of Duty

- S 42, see above

- S 5B
- S 5C
- Amica allows us to use not the but for test but operating and substantial cause, allowing for multiple
plaintiffs

Remoteness
 - 5D(1)a factual causation
- 5D(1)b scope (duty of care did apply to this breach)

Defences
Inherent risk/Obvious risk?

- 5H/I
- More w regards to failure to warn

V South Coast Green Coalition

- Not sure how to go about Duty for these pps
- However, would probably fail on foreseeability, causation and remoteness?

V South Coast Branch of Rural Bush Fire Service

- Duty would be established as per NSWP/W, but easier, since they had a duty

V DMR
- Vicarious Liability
- However, may not have caused the fire (there was a probability)
- Would fail under Causation

Other Plaintiffs
Carlo
- Died
- Family would sue under Compensation of Relatives Act
o Would be limited by S1
- Was in the park, therefore duty of care of NSWP/W would be definitely established

Harry
- Case of Pure Economic Loss (Not negligent Misstatement)
- Third-party injury under Pt 4 CLA
o Policy
Indeterminate liability
Not indeterminate since is identifiable (places who depend on park for income)