Advise Sharon in her action in negligence.

1. The council’s liability in negligence

A/ Duty of care

As it was held in Donoghue v Stevenson [1932] AC 562 at 580, per Lord Atkin duty of care arises when anyone is engaged in an act, which one can reasonably foresee would be likely to injure another person. A duty of care will also depend on the existence of a relationship of proximity between the plaintiff and defendant. In Sharon’s case a relationship of proximity is demonstrable (see section 2)a below).

1) Statutory/public authorities

Statutory/public authorities, such as councils, can be held liable for their actions just like anyone else accordingly McHugh J comments in Crimmins the authority should have known the conditions of the waterfront. Authorities empowered to control and manage properties are liable as other occupiers as it was held in Nagle v Rottnes Island Authority  (1993) 177 CLR 423. In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458 Mason J said that a public authority, which exercises statutory power and/or performs statutory duty could be subject to common law duty of care. In Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 the statutory body held liable for negligently causing personal injury.

2) Occupier’s liability

An occupier is one who has significant control over the premises that he or she ought to realise that any failure on their part in to make the premises safe may cause harm to a visitor to the premises: What v Lacon (1966) UK (S. Blay, Torts, 4th ed, LBC Information Services, Sydney, 1999, p. 85).

Thus the occupier is often liable for the injuries suffered by the person who entered that land the occupier controls. The type of the occupier and the circumstances in which Sharon – as a lawful entrant upon the land - entered on to the beach is relevant because:

1. It establishes that a proximate relationship between Sharon and the council existed: Sutherland Shire Council v Heyman, Nagle v Rottnes Island Authority, Australian Safeway Stores v Zaluzna (1987) 162 CLR 479; 69 ALR 615 High Court of Australia. With special regard to the fact that members of the community have right to enter areas opened to the public, such as beaches, thus Sharon was an entrant as of right and owed duty of care: Aiken v Kingborough Corp (1939) HCA and Burrum Corp v Richardson (1939) HCA.
2. The council as an occupier should take reasonable care to avoid injury to persons using the property, the occupier also must clean the property and removing rubbish, and the periodic inspection of the property is required too: Drotem Pty Ltd v Manning [2000] NSWCA 320. In cases, such as Brodie, Crimmins, Barclay and Pyrenees Shire Council v Day (1998) 192 CLR 330 courts have recognised that a public authority owes a duty of care regarding a failure to act or exercise a power referring claims for compensation for physical injury, and the council’s level of control over the safety of the person is significant and exclusive.

3) Culpability

In Pennington v Norris (1956) 96 CLR 10 the High Court held that the culpability of both the defendant and the plaintiff should be compared, and the apportionment of liability was twenty percent to the plaintiff since he had put only himself at risk, while the apportionment of liability was eighty percent to the defendant as the defendant had put others in the community, including the plaintiff, at risk of injury. Thus so far as the Pennington-like comparison between the council and Sharon’s negligence is concerned, the former should be regarded more culpable than the latter.

2. The council defences to the action in negligence

A/ Contributory negligence

It might be said that Sharon failed to take reasonable care for her own safety by walking on the beach at dusk, however it is likely and foreseeable that members of the community may use the beach any time of the day. Even if it would have been likely that Sharon’s injury would have been prevented had she been walking on the beach at daylight, her failure to do so does not necessarily constitute contributory negligence. In Wynbergen v The Hoyts Corporation (1997) 149 ALR 25 the High Court compared the relative importance of the acts of the parties in causing the injury. Thus Sharon’s failure as walking on the beach at dusk might cause her injury, it did not contribute to the accident leading to the injury. Consequently the council’s negligence was more important than Sharon’s failure for the purposes of the analysis made in Wynbergen’s case, since the accident would probably not have happened at all ‘but for’ the council’s negligence. Because the council was more culpable than Sharon, it should bear a higher proportion of the loss.

B/ Voluntary assumption of risk

When an injured person said to be assumed risks, courts can take a narrow view of the risks assumed. However the injured person must fully comprehend what the risk is. Given the facts, a finding of contributory negligence is unlikely: Insurance Commissioner v Joyce (1948) HCA. Thus the council ought to prove not only that Sharon was aware of the risk but also comprehend the consequences of it. In the given circumstances it cannot be said that Sharon voluntarily submitted herself to such risk and the defence should accordingly fail.

3. Conclusion

If Sharon proves that the council could have reasonably foreseen the risk and prevented the injury, Sharon would succeed in an action for damages in the tort of negligence and awarded damages for both medical expenses and personal distress as loosing her chances to participate in the Olympics in Athens. If the council can prove that Sharon voluntarily assumed the risk of such injury and she failed to take precautions for her own safety that contributed the injury (causal connection is necessary), then Sharon’s action would fail due to the reduced standard of care.

By analogy with the facts in the case given, the elements of negligence action by Sharon against the council have arguably been established. Therefore Sharon is likely to succeed in her action against the council, subject to any defences, which may be successfully argued by the council. However it might be noted that “… in the category of cases involving public authorities, the principles determining whether a public authority owes an individual a duty of care in respect of its acts or omissions have been unsettled” (Ben Zipser, part time lecturer, School of Law, UWS, in TORTS LAW 200008 – Book of Readings Volume 1, p. 91).

Part B

1. Power of the council

Councils operate as a body corporate under Ch 9 of the Local Government Act 1993 (NSW) (LG Act). Section 68 of Ch 7 of LG Act ordains to protect public health and ss 191 and 192 of Ch 8 grants powers of inspection and investigation to the council in order to enabling it to exercise its functions such as, among others, protect public health and safety.

2. Duty of care and causation

Division 2 and 3 of the Act determine the principles by the terms of which:

1. The risk was foreseeable and significant.
2. The harm was serious.
3. The burden of taking precautions to avoid the risk of harm or similar risk of harm was not onerous and indeed the protection of the public health and safety requires such precautions.
4. There was no social utility of the activity that created the risk of harm.
5. In Sharon’s case it is relevant to the determination of factual causation to determine what Sharon would have done if the council had not been negligent and the matter must be determined subjectively with regard to all circumstances: Sharon could have participated in the Olympics in Athens.

3.  Assumption of risk

Contrary to common law, under Division 8 section 5S of the Act contributory negligence can defeat Sharon’s claim if she is found to be negligent in duty of care of her own safety and a court may determine a reduction of 100% if the court thinks it just and equitable. It is maybe “… because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence” (Review of the Law of Negligence – First Report (2002) < (12 April 2004)).

However the council should prove that:

1. The risk was an obvious risk – including risks that are evident or matters of common knowledge - even if there is a low probability of occurrence of such risk and the risk as such is not physically observable: Division 4 s 5F.
2.  Sharon was aware of the type of the risk, even though she was not aware of the risk’s precise nature and occurrence: Division 4 s 5G.

3. Conclusion

After analysis of the facts discussed in relation to the Act, Sharon can fit her facts within the scope of the principles of the cause of action on which she is basing her claim. Consequently she would succeed in an action for damages in the tort of negligence and awarded damages for her loss under the Civil Liability Act 2002 (NSW) as she could under the common law.

Bibliography

Texts

Blay S, Torts, 4th ed, LBC Information Services, Sydney, 1999

Butterworths – Concise Australian Legal Dictionary, 2nd ed, LexisNexis Butterworths Australia, 1998

Chisholm R & Nettheim G, Understanding Law, 6th ed, LexisNexis Butterworths Australia, 2002

Davies M & Malkin I, Butterworths Tutorial Series - Torts, 4th ed, LexisNexis Butterworths Australia, 2003

Hutchinson T, Researching and Writing in Law, Lawbook Co, Australia, 2002

Luntz H & Hambly D, Torts – Cases and Commentary, 5th ed, LexisNexis Butterworths Australia, 2002

McGlone F & Rowell C, Butterworths Questions and Answers - Torts, Butterworths Australia, 2002

Meek M, The Australian legal system, 3rd ed, LBC Information Services, Sydney, 1999

Stuhmcke A, Legal Referencing, 2nd ed, LexisNexis Butterworths Australia, 2001

TORTS LAW 200008 – Book of Readings Volume 1, Compiled by Susan Fitzpatrick, Autumn 2004, University of Western Sydney, College of Law and Business, School of Law

Williams G, Learning the Law, 10th ed, Stevens & Sons, London, 1978

Websites

A Guide to the Civil Liability Act 2002 (NSW), January 2003, <http://www. usyd.edu.au/lec.subjects/torts/materials/dbg_CLA_2002_guide.pdf> (12 April 2004)

Australian Sports Commission, Insurance Report, Ernst & Young, January 2003, <http://www.ausport.gov.au/asc/corpdocs/insulegal.pdf> (12 April 2004)

Macdermott B, Risk arising from the Civil Liability Amendment (Personal Responsibility) Act 2002, Law Society Journal, March 2003, p. 48. < > (12 April 2004)

Review of the Law of Negligence – First Report, 2002, < (12 April 2004)

Review of the Law of Negligence – Terms of Reference, Principles Based Review of the Law of Negligence by a Panel of Eminent Persons, 2002, <(12 April 2004)

Cases

Aiken v Kingborough Corp (1939) HCA

Anns v Merton London Borough Council [1978] AC 728

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479; 69 ALR 615 High Court of Australia

Brodie v Singleton Shire Council (2001) 75 ALJR 992

Burrum Corp v Richardson (1939) HCA

Caledonian Colleries Ltd v Speirs (1957) 97 CLR 202 at 220

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; (1999) 167 ALR 1 High Court of Australia

Donoghue v Stevenson (1932) UK

Drotem Pty Ltd v Manning [2000] NSWCA 320

Graham Barclay Oysters Pty Ltd v Ryan  (2002) 77 ALJR 183

Hughes v Lord Advocate (1963) UK

Insurance Commissioner v Joyce (1948) HCA

Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501

Nagle v Rottnes Island Authority  (1993) 177 CLR 423

Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR362

Pennington v Norris (1956) 96 CLR 10

Perre v Apand Pty Ltd (1999) 198 CLR 180 at 230

Pyrenees Shire Council v Day (1998) 192 CLR 330

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263

Shaddock v Parramatta City Council (1980-81) 150 CLR 225 per Mason J at 250

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458

Wynbergen v The Hoyts Corporation (1997) 149 ALR 25

Wyong Shire Council v Shirt (1986) 146 CLR

Statues

Civil Liability Act 2002 (NSW)

Local Government Act 1993 (NSW)

Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth)