The duty of care of a public authority

A recent Queensland decision^[1] raises the important issue as to when a pubic authority, in the exercise of its statutory powers, will owe a common law duty of care to the public.

In 2012, a three-year old child was hit and fatally injured in the carpark area of a Hungry Jack’s restaurant complex. The driver of the vehicle that struck the child on a pedestrian crossing developed a psychiatric injury following the accident and sought to recover damages for personal injuries against the restaurant owners, the architects who had designed the redeveloped restaurant facility and (relevantly for this note) the Brisbane City Council (Council), which had approved the redevelopment, including the location of the pedestrian crossing. The Council denied it owed a duty of care to the plaintiff and argued that, in any event, any breach of duty did not cause the psychiatric injury (for which it argued the plaintiff also was contributorily negligent).

General principles

Public authorities (including state and local authorities) undertake a number of public functions, which can give rise to a duty of care to an individual or a class of individuals. The principles can be stated broadly as follows.[2]

• The existence or otherwise of a common law duty of care owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime.[3]
• A public authority, which is under no statutory obligation to exercise a power, generally owes no common law duty of care to do so.
• However, it may by its conduct attract a duty of care that requires the exercise of the power where:

• the authority, in the exercise of its functions, has created a danger;
• the circumstances of the authority’s occupation of premises or its ownership or control of a structure attracts to it a duty of care; or
• the authority acts so that others rely on it to take care for their safety.

• The Civil Liability Act modifies the common law in various respects, including to limit the functions required to be exercised by the authority to the financial and other resources that are reasonably available to it[4] and to provide that an act or omission of the authority is only wrongful if, in the circumstances, it is so unreasonable that no authority having those functions could properly consider it to be a reasonable exercise of them.[5]

Some examples

In Pyrenees Shire Council v Day[6], the High Court held that the local government, which possessed a statutory power to protect persons and property in its local government area from fires, owed the owners of a house that was destroyed by fire a duty of care to warn them of a defect in the house’s chimney which the local government had identified in an inspection a number of years earlier and warned the then-tenants about (they did not inform the owners). The duty arose because the Council had statutory powers to protect the owners, had inspected the premises, had actual knowledge of the danger and had a significant and special degree of control over the safety from fire of the premises.

In Crimmins v Stevedoring Industry Finance Committee[7], the High Court found that a statutory authority had a duty of care to a worker who it had exercised a statutory control over to assign to workplaces at which the worker was exposed to asbestos, leading to disease. The authority’s control over the circumstances in which the worker was employed was a key element of the imposition of the duty.

In Bamford v Albert Shire Council,[8] the Queensland Court of Appeal held that the local government owed a duty of care to a purchaser of land the subdivision of which the local government approved when it had information that showed the land was not fit for residential purposes in circumstances where this was a matter the local government was required by statute to consider.
In Butler v Queensland,[9] the Queensland Supreme Court held that the State owed a duty of care to the subsequent purchasers of land which experienced subsidence due to the collapse of underground pillars in disused coal mines that had been approved and inspected by the State in the knowledge that there was an intention on the part of the owners of the surface land to development that land for residential purposes. The duty was to use reasonable care and skill in the formulation of the conditions of approval and in the inspection of the relevant mines.

In Alex Finlayson Pty Ltd v Armidale City Council,[10] Burchett J in the Federal Court held that a local government owed a duty of care to subsequent purchasers of land which the local government knew was contaminated but which it recommended for rezoning and approved for subdivision for residential development without making any attempt to clean up the contamination or warn the purchasers. The duty of care arose because the local government took positive steps by its recommendation and approvals, and by doing so created a danger.

Decision

The court in Bryant held that the Council did not owe a duty to the plaintiff in the exercise of its statutory approval powers (including the imposition of conditions) in relation to the redevelopment of the Hungry Jack’s premises.[11] The pedestrian crossing was on privately owned land, in no way under the control of the Council and, after the approval, the Council had no role in its construction or maintenance.

The court found that a duty of care is not owed by the Council in its guise of a planning approval council, as opposed to, for instance, a road authority. The issue was compounded to given a legally recognised duty of care to avoid pure psychiatric injury is in a different class or category to a duty of care to avoid reasonably foreseeable physical injury.

Key takeaway

While a plaintiff will have a high threshold to overcome to establish that a local government owes a duty of care in its capacity as an assessment manager, the decision in Bryant v Competitive Foods Australia is a timely reminder to public authorities to properly assess any safety concerns arising out of development proposals. The decision is being appealed. The appeal may provide further guidance about the nature and extent of duties in these circumstances.

[1] Bryant v Competitive Foods Australia Pty Ltd & Ors [2018] QDC 258 (Jarro DCJ)

[2] See Amaca Pty Ltd v New South Wales (2004) 132 LGERA 309

[3] Stuart v Kirkland-Veenstra (2009) 237 CLR 215

[4] Civil Liability Act 2003 (Qld) s 35

[5] Civil Liability Act 2003 (Qld) s 36

[6] (1998) 192 CLR 330.

[7] (1999) 200 CLR 1.

[8] (1997) 97 LGERA 33.

[9] [2013] QSC 354 (Boddice J).

[10] (1994) 51 FCR 378.  The judgment was upheld on appeal – Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9

[11] [2018] QDC 258 at paragraphs [49] – [54].

Authored by:

Stafford Hopewell, Partner

Sarah Day, Associate