The proper approach to duty, risk and breach under the Civil Liability Act, 2002

Fairall v Hobbs [2017] NSWCA 82

 

  1. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [11] it was emphasised by the plurality that it was of the “first importance” to identify the proper starting point, which, both in that appeal and here, was the Civil Liability Act, without which there was a “serious risk that the inquiries about duty, breach and causation will miscarry”.
  2. As Meagher JA said in Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151 at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

  1. What was required in this case was that the primary judge should clearly identify the risk (or risks) of harm in respect of which the second defendant below was obliged to take precautions. It is against that risk of harm that the court would then have been in a position to determine the second defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second defendant’s response, or lack of response, to that risk: see RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]-[61] per Gummow J.
  2. The need to identify the “risk of harm”, and to satisfy each of the requirements in s 5B, has been emphasised in numerous subsequent cases in this Court: Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]-[72] and [83] ff; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139]-[160]; and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100]-[129].