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Precedent (Australian Lawyers Alliance) |
DUTY CONTENT UNDER THE CLA
By Richard Douglas QC
Assessing, pleading and proving a negligence claim was a comparatively simpler proposition 15 years ago. What has changed?
The answer is the Ipp legislation enacted early this millennium in the states and territories. Guided by such legislation, courts now engage in much greater scrutiny of a duty of care liability cause.
Only by properly identifying the duty content can the standard of care owed by the putative wrongdoer be considered, in light of the evidence adduced, so as to adjudicate whether there has been a breach of duty. This article addresses the basal elements and proper formulation of the duty content.
‘A duty of care at common law is the duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid a specified loss to another person, or to a person within another specified class.’
So wrote Gageler J in Brookfield Multiplex Ltd v Owners Corporations Strata Plan 61288.[1] Each element his Honour identified is critical in the formulation of the content of any duty of care owed by a defendant to a plaintiff.
The simplest example is the instance of motor vehicle negligence.[2] The duty content of a defendant driver is to:
‘... exercise reasonable care in and about management and control of the vehicle so as to obviate or minimise the foreseeable and not insignificant risk of injury to other road users.’[3]
Beyond that circumstance, the duty content is more challenging to formulate. The outcome is necessarily fact-sensitive.
While the incident or event which causes harm is necessarily in focus, the content of the duty requires framing prospectively, lest hindsight intrude. Thus, incorporating the specific features or elements of such incident or event within the duty content must be eschewed, but that which occurred must nonetheless generally inform duty content.
In Woolworths Ltd v Ryder,[4] Basten JA, writing for the court, neatly identified the vice under consideration:
‘Identifying a duty is a prospective exercise, focusing on the standards of careful conduct reasonably expected by the community. One problem is to formulate a duty in terms which would fit the known facts. If the duty is too narrowly drawn by reference to that which is found to have to have been done or omitted, there will be a real danger of erroneously applying hind-sight. If the duty is drawn too broadly, it will provide no guidance in identifying the boundaries of acceptable levels of care in particular circumstances.’
Proper formulation of the duty content is afforded guidance by the content of the breach provision contained in the relevant state or territory Ipp legislation.[5] For convenience, I will refer to s9 of the Civil Liability Act 2003 (Qld) (QCLA), that provision being broadly representative:
‘9 General principles
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.’ (emphasis added)
The duty content elements are to be found in the QCLA s9(1) preface, and paragraphs (a) and (b) thereof. Only with duty content formulated informed by those elements can the paragraph (c) breach question be answered.
In turn, the duty content ought to inform the proper pleading of the plaintiff’s liability case.
In Garzo v Liverpool/Campbelltown Christian School Pty Ltd,[6] it was written of the NSW analogue of QCLA s9:
‘[59] ... in a claim in negligence to which the Civil Liability Act applies, it is necessary that the pleading identifies and articulates the material facts upon which the plaintiff relies to establish each of the elements required by [QCLA s9(1)].
[60] As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the “risk of harm” in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a court in a position to determine the defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant’s response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J in RTA v Dederer (2007) 234 CLR 330 at [59]–[61].
[61] A proper pleading will also need to plead whether it is part of the plaintiff’s case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable..., or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation.’ (emphasis added)
These are matters which need be expressly pleaded so as to comply with the relevant pleading rules. For example, and representatively, in Queensland, r150 of the Uniform Civil Procedure Rules 1999 (Qld) provides:
‘150 Matters to be specifically pleaded
(1) Without limiting rule 149, the following matters must be specifically pleaded—
...
(k) motive, intention or other condition of mind, including knowledge or notice;
...
(2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.’
The vice too often appearing in a statement of claim is the making of ‘rolled up’ pleas of requisite knowledge of a risk of harm, without pleading the material facts from which such knowledge in the defendant (if corporate, a particular natural person on its behalf) falls to be inferred.[7] In the hands of a capable defendant lawyer, such pleas ordinarily would be the subject of a strike-out application.
Identifying the risk of harm in the formulated duty content is critical to adjudication of breach. Modern seminal authority on the issue is Roads and Traffic Authority of NSW v Dederer[8] and, in particular, the reasons for the judgment of Gummow J (Hayne J agreeing). His Honour predicated, helpfully, that in each case it is necessary to focus on the ‘true source of the potential injury’.[9] Although not an Ipp legislation case, such jurisprudence has been followed consistently in the cases decided under that legislation.
The critical task of identifying and characterising the prospective risk of harm is emphasised by Boon v Summs of Qld Pty Ltd.[10] The plaintiff, during a work break on a footpath area adjacent to the work site, being a place where employees of various site contactors habitually congregated, was cut by a sharp knife wielded by the defendant’s employee. The employee, a Mr Summerfeldt, crouched and cut an orange. He rose without sheathing the knife, and then turned, slashing the plaintiff as he moved nearby.
The trial judge dismissed the claim, identifying the risk as the cutting of the orange with a knife. The decision was overturned on appeal:
‘[27] The [plaintiff] appellant’s principal challenge to the analysis of risk is centred upon the learned trial judge’s statement ... that the appellant had failed to establish that a reasonable person in Mr Summerfeldt’s position would have foreseen that using a sharp knife to peel an orange during lunch would have involved a risk of injury to persons nearby, including the appellant. The appellant submits that the adoption of the peeling of an orange with a sharp knife as the relevant frame of factual reference for risk analysis was wrong and led to an erroneous conclusion with respect to breach of duty.
[28] In Roads and Traffic Authority NSW v Dederer, Gummow J, with whom Hayne J agreed, stressed the importance of the correct identification of actual risk to the assessment of breach of duty. His Honour observed that it is only through the correct identification of risk that one can assess what the reasonable response to the risk would be.
[29] The guidance given by Gummow J in Dederer requires a precise identification here of what it was that exposed the appellant to risk of injury. To my mind, it clearly was the conduct of Mr Summerfeldt in rising from a crouched position with a knife in his hand, the knife having a long, sharp blade which was unsheathed. The risk of injury to the appellant arose because, as Mr Summerfeldt was moving to an upright stance, the blade might have struck a passer-by such as the appellant.
[30] I am unable to agree with her Honour that the relevant conduct on Mr Summerfeldt’s part was using the knife to peel an orange. The mere actions involved in peeling the orange with the knife did not expose the appellant to any relevant risk.
[31] Once the appropriate risk is identified, the inescapable conclusions are that there was a foreseeable risk that a passer-by such as the appellant might have been struck by the blade of the knife; that Mr Summerfeldt ought reasonably to have known, at least, of that risk; and that the risk was not an insignificant one. The last conclusion is fortified by the admitted fact that the location where the incident occurred was frequently traversed by workers.
[32] A further and no less inescapable conclusion is that a reasonable person in Mr Summerfeldt’s position would have taken the simple precaution of looking properly to see if there was any person approaching his vicinity before he began to rise. Alternatively, he could have retracted the blade on the knife before he began to rise. The manner in which the accident occurred demonstrates that he took neither precaution.
[33] In my view, these intermediate conclusions compel an ultimate conclusion that Mr Summerfeldt acted negligently and that his negligence caused the appellant’s injury. It is not in issue that the [defendant] respondent is vicariously liable for negligence on Mr Summerfeldt’s part in circumstances such as those. The appellant’s case should not have been dismissed for want of proof of negligence.’ (emphasis added, footnotes deleted)
Necessarily the formulation of the duty by reference to risk is fact-sensitive. In some instances, the facts necessitate definition of the risk of harm with greater particularity.[11] In Uniting Church in Australia Property Trust v Miller,[12] Leeming JA (Basten and Simpson JJA agreeing) wrote:
‘It is clear that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances ... There may commonly be a range of appropriate formulations of the generality of the risk of harm. It is unrealistic to expect there will be a single canonically “right” characterisation of the risk of harm.’
A duty of care may be owed to an identified individual, for example, a professional client, vehicle passenger, service user, or like known or observed individual or corporate body.
More often the injured person, prospectively, is an unidentified member of a class, for example, road or public facility user, entrant to premises, statutory information user.
As to a class duty beneficiary, the general features or traits of the class, including the moment of risk to class members, is a critical consideration in fleshing out the duty content. Difficulties may arise with truncation or sub-categorisation of the class; for example, sighted or blind pedestrians, child or elderly entrants to premises, experienced or dilettante professional clients.
If, however, a known individual or entity is owed a duty then the duty content – and, in turn, standard of care owed – may be enhanced or diminished in the particular circumstances. Examples of enhancement include:
• First, a personal or corporate client of a defendant professional, who or which is known to harbour lack of commercial sophistication, attracting a higher standard of care discharge.[13]
• Second, a known existing individual who is known to harbour an existing physical or psychological disability, permanent or temporary, with consequent heightened risk of injury, thereby attracting amplification of the standard of care.[14]
Examples of diminished duty content, however, also feature in the authorities. This result, also, turns upon prior knowledge of, and dealings with, the known (cf class) duty beneficiary.
In Shaw v Thomas,[15] the plaintiff, a 10-year-old boy by the name of Cameron Thomas, was injured when he fell while climbing out of a bunk bed located at the home of a friend with whom he was staying. He sustained serious injury and sued the friend’s parents, the defendants, as occupiers of the home. Macfarlan JA, speaking for the New South Wales Court of Appeal, wrote that the greater risk to a wider class was irrelevant to the duty content of the known plaintiff:
‘The extent of the obligation of an occupier is that of an occupier exercising reasonable care to prevent injury to an entrant “using reasonable care on his [the entrant’s] part for his own safety” (Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42 ; (2007) 234 CLR 330 at 345-346 quoting Indermaur v Dames [1866] UKLawRpCP 32; (1866) LR 1 CP 274 at 288). As indicated in the plurality judgment in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 ; (2005) 221 CLR 234, “the weight to be given to an expectation that the other [person to whom the duty is owed] will exercise reasonable care for his or her own safety is a matter of factual judgment... The respondent submitted that the relevant duty in the present case was a duty of care owed by the appellant to the class of persons of whom Cameron was one, that is, a class constituted by the substantial number of children who from time to time visited and stayed at the appellants’ home....I do not accept this submission. As the reference above to the statement in Wyong Shire Council v Shirt demonstrates, a relevant duty of care is owed to a plaintiff or to a class. The concept of a duty being owed to a class of persons is relevant where the identity of the plaintiff is unknown to the defendant. It is not in my view relevant where, as here, the plaintiff is well known to the defendant and a reasonable person in the defendant’s position would have foreseen a risk of injury to the particular plaintiff...Accordingly, in this case, the extent of the appellants’ duty is to be determined by reference to their relationship with and knowledge of Cameron. The matters to be considered do not include the capabilities or likely conduct of other children falling within the class referred to in the respondent’s submissions. Such other children may, for example, have been younger or less agile than Cameron.’ (emphasis added)
In Quadriplegic Centre Board of Management v McMurtrie,[16] the plaintiff employee sued the defendant employer in respect of injury sustained in an assault by a patient, Mr RJ, upon whom the plaintiff was attending as a nurse assistant. On appeal, the Court of Appeal of Western Australia concluded against the plaintiff’s contention that the defendant ought to have warned her of prior assaults of nurses perpetrated by Mr RJ. Pullin JA (Newnes JA agreeing) wrote:
‘There is an additional factor which is also relevant to the question about whether or not the appellant was obliged to give a warning to the respondent and that arises out of the fact that Ms Brown gave evidence that not long before 24 May 2001, she had given an instruction to the respondent that she was not to enter Mr RJ’s room. This instruction was given because, as already mentioned Ms Brown had formed the view that the respondent was not following protocol. The trial judge found that Ms Brown gave such an instruction. His Honour therefore rejected the respondent’s evidence that she had never been given such an instruction.....This evidence is relevant because a defendant’s duty of care must be shown to be owed to the individual plaintiff, even though the duty may be proved to exist by showing that the defendant owed a duty of care to a class of persons of whom the plaintiff was one..... The class of persons owed the duty in this case, if it existed, would have been owed to nursing assistants whose job it was to attend to Mr RJ. The respondent was not in that class because she had been given an instruction not to attend to Mr RJ because of the respondent’s failure to follow the protocol.’ (emphasis added)
DEFENDANT’S KNOWLEDGE OF RISK
Assessing the response of a reasonable person in the position of the person owing the duty of care certainly entails objective consideration, without regard to the idiosyncrasies of such person. As the High Court in Allen v Chadwick[17] – echoing the approach adopted almost two decades ago in Carrier v Bonham[18] – wrote:
‘It is important here to bear in mind that a defendant who inflicts harm on another by unreasonable conduct is not excused from liability in negligence because of a reduced personal capacity for reasonable decision-making.’
That stated, one of the critical considerations in duty content formulation, so as to permit breach adjudication, concerns proof of what the defendant knew, or what a reasonable person in such defendant’s position ought reasonably to have known of, and about, the prospective risk of harm.
Thus, the knowledge may be actual (that is, direct or imputed) or constructive (that is, reasonably ought to have known) in character.
Direct actual knowledge of a risk is more difficult to prove. Usually it can be proved only by proof of a defendant’s documents which address the risk, or by admissions in pleadings or at trial.
Careful attention is required in instances where knowledge is sought to be attributed to a defendant, in particular a corporate defendant, by dint of knowledge acquired by its employees or officers:
• First, actual knowledge may be imputed to the defendant by reason of such employee or officer being the ‘agent to know’ facts of a particular kind on account of his or her managerial remit in the defendant’s enterprise.[19]
• Second, proof of knowledge – direct actual or constructive – will be fraught where the knowledge acquired is that of non-managerial staff, in circumstances where they fail to pass on to their employer facts pertaining to the risk per se, but in particular where the knowledge was gained shortly prior to the damaging event. In such circumstances, the safest course for a plaintiff would be to plead against the defendant, in the alternative, vicarious liability for the employee, on account of failing himself or herself to take remedial steps or to report the subject matter of the risk, hoping then breach of duty by the employee can be proved.[20]
The usual subject matter for pleading and proof is constructive knowledge. The issue is fact-sensitive. For example, in the sphere of occupier’s liability, there can be a difference in duty content between a commercial and domestic occupier.
In Smith v Body Corporate for Professional Suites Community Title Scheme 14487[21] – in the context of an allegation that an occupier of commercial premises ought to have investigated and identified the presence of annealed glass, and replaced it with safety glass – Fraser JA (Fryberg J agreeing) wrote:
‘In view of the extraordinarily large number of people who uneventfully entered and exited the building over 30 years, the absence of any evidence that the respondent knew or should have known that the glass in the side panels had a propensity to break into dangerous shards when sufficient force was applied to it, and the potentially enormous cost of investigating and removing equally unlikely risks associated with other glass or materials throughout the common areas of the building, the [plaintiff] did not prove that the [defendant] acted unreasonably by failing to organise an audit of the glass side panels by a person with appropriate expertise and thereafter replacing the existing glass with safety glass.’
Shaw v Thomas[,]2222 [2010] NSWCA 169. canvassed above, was similar. The plaintiff suffered an injury after falling from a bunk bed at the home of the defendants, who were the parents of a friend he was visiting on an overnight stay. The plaintiff was 10 years old. He fell while making his way off the top bunk. He struck his head and suffered brain damage.
On appeal by the defendants, Macfarlan JA (Beazley and Tobias JJA agreeing) concluded that the trial judge had erred in sheeting home to the defendants constructive knowledge of the content of certain published safety documents which pointed out the dangers associated with unguarded bunk beds, and thereby the foreseeability and significance of the risk of injury therefrom:
‘[46] It is clear from the structure of his judgment that the primary judge considered that the contents of the ACCC publication and the Australian Standard to which it referred were relevant to his assessment of the risk of injury occurring in the use of the bunk bed ... In my view the judge erred in this respect. ... The [defendants] were owners and occupiers of domestic premises in which they lived with their children. There was no evidence that the [they] were aware of the Australian Standard ... and it cannot be assumed that reasonable people in their position would have had knowledge of the terms of the Australian Standard or of the ACCC publication referring to it ... As a result it was not in my view appropriate to take into account the ACCC publication or the Australian Standard when considering whether the risk was “not insignificant”.
...
[59] The correct approach in considering what precautions a reasonable person would take in a case such as the present is in my view that described by the English Court of Appeal in Harris v Perry [2009] 1 WLR 19; [2008] All ER (D) 415 (Jul); [2008] EWCA Civ 907. That case was concerned with a severe head injury suffered by an 11 year old boy on a children’s “bouncy castle”. The court said:
36. In considering the precautions that should reasonably have been taken in relation to the bouncy castle the judge had regard to the contents of the Health & Safety Information Sheet and the BIHA standard conditions of hire, which he commented were “instructive”. We have concluded that there is force in Mr Eklund’s submissions that the judge should not have attached significance to these documents. What he should have done was to identify the standard of care required in the circumstances of this case on the basis of the facts of which the defendant knew or ought to have known. These could not include the contents of documents that the defendant neither saw nor ought to have seen.’ (emphasis added)
In contrast, in Schultz v McCormack,[23] the fact that the home owner defendants had lived in their premises for six years, coupled with expert evidence adduced as to the excessively slippery nature of the veranda when wet – the plaintiff entrant slipping there on a wet night – combined to sheet home to such defendants constructive (‘ought reasonably have known’) knowledge of the slipping risk.
Proving constructive knowledge of facts pertaining to the prospective risk of harm (again, as above, by inference to be drawn from pleaded material facts) can be achieved by pleading and proof of a failure by a defendant to comply with any statutory obligation to assess risk. While a failure to assess risk proactively is not of itself negligent, it remains a means by which knowledge of risk can be sheeted home to a defendant owing a duty, so as to found a breach finding.
An example is the statutory obligation, under the occupational, health and safety legislation of a state or territory, to assess risk in and about industrial tasks. In the context of employment, the Supreme Court of the United Kingdom, in Kennedy v Cordia (Services) LLP, referring to like UK legislation, wrote recently:[24]
‘[T]he employer’s duty is no longer confined to taking precautions as are commonly taken or ... such other precautions as are so obviously wanted that it would be failing in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious.’
In Prasad v Ingham’s Enterprises Pty Ltd,[25] Philip McMurdo JA (Fraser JA agreeing), concerning alleged negligent failure of an employer to furnish cushioning mats to inhibit an injury to an employee’s feet, wrote:
‘Much of the argument at the trial and some of the argument in this court focused upon whether the [defendant] should have undertaken a risk assessment when removing the mats. The primary judge found that such an assessment was not made. His Honour held, correctly in my view, that if the absence of such a risk assessment was to be a basis of liability, the [plaintiff] had to prove that such an assessment would have concluded that the mats should not be removed and that this would have made a difference to the [plaintiff’s] condition. All of that is to say that the absence of a risk assessment itself was not causative of the injury. If there was actionable negligence on the part of the [defendant], it was by not providing the mats rather than by not undertaking an assessment as to whether they should be provided.’ (emphasis added)
That is, the failure to proactively assess risk itself is not a breach of duty. Rather, notional compliance with the obligation and the result had such compliance ensued may be proved so as to constructively sheet home to the defendant requisite knowledge concerning the moment of such risk, along with any precautions available to obviate or minimise same.
The above obligatory risk assessment proof ought not to be confined to employment cases. It is submitted that where a defendant is obliged to assess risk by reason of statutory obligation a propos of an employee or other industrial entrant, the fruits of such obligation may be used to establish constructive knowledge of risk, but a propos of another person or entity at risk of the industrial activity.
In sum, knowledge of risk informs duty content.
OTHER IPP CONSTRAINTS
Duty content may be affected by other Ipp legislative provisions. For present purposes, it suffices merely to identify such provisions.
First, QCLA s9(1)(b), and some of its interstate equivalents, require that the risk be ‘not insignificant’. This has been construed as effecting some, but only modest elevation of the hurdle for proof.[26]
Second, some Ipp statutes provide for a duty content bereft of a need to warn[27] for a statutory ‘obvious risk’.
Third, both the New South Wales and Queensland legislation provides for the prospect of intoxication of a person to be ignored in breach adjudication (in Queensland, however, not in ‘licensed premises’).[28] This has been construed as not entitling a putative wrongdoer to ignore indicia of apparent disablement of an identified person to whom a duty of care is owed.[29]
Fourth, some Ipp statutes provide restrictions on who may recover for mental harm.[30]
Fifth, criminal activity by a plaintiff contemporaneous with alleged breach of duty grounds liability exemption with limited relaxation,[31] or at least consideration in breach adjudication.[32]
The express content of a duty in any particular case will vary having regard to the facts. Depending on the circumstances, the duty content may require simple or more detailed expression. Some examples may assist:
• In WB Jones Staircase & Handrail Pty Ltd v Richardson,[33] the plaintiff was injured after taking up possession of a constructed building which had a balustrade manufactured by the defendant, in respect of which it knew that the installer was utilising inadequate installation techniques. The duty formulated consisted of one:
‘... to take reasonable care to avoid foreseeable risks of harm arising from the manufacture and installation of the balustrade’.
• In Kerle v BM Alliance Coal Operations Pty Limited and Others,[34] the duty to the ‘drive-in/drive-out’ shiftwork miner plaintiff, injured when he fell asleep on a weekly five-hour commute home, was formulated as one:
‘... to take reasonable care to avoid or minimise the risk of injury to a worker resulting from foreseeable fatigue consequent upon the worker engaging in four consecutive 12 hour nightshifts and then undertaking long distance commuting to his home’.
The abstract identification of the existence of a duty of care is only the starting point in the endeavour to assess the prospects of, and proving a claim for, damages for breach of such a duty.
The content of that duty is a matter critical to such assessment and proof. By aptly stating the content, the standard of care owed by the putative wrongdoer will be identified for application to the evidence adduced, so as to adjudicate breach.
Only in the simplest case will such content be the same in successive cases.
Duty content requires post-damage formulation, on a prospective basis, in such a way that does not suggest an answer, but not so abstract as to deny an answer. A balance needs to be achieved.
In such formulation, regard needs to be had to the activity being undertaken, the relationship between the parties and the knowledge – actual or constructive – of the risk which might reasonably be attributable to the defendant.
The various Ipp legislation liability provisions inform such duty content.
Richard Douglas QC practises in Queensland and interstate in civil trial and appellate advocacy, with associated advisory practice. His areas of specialty are insurance, common law and statutory liability, commercial law, commercial vendor and purchaser, real property and statutory confiscation of criminal profits. He has a particular expertise in proportionate liability in economic loss and property damage cases. PHONE 07 3218 0620 EMAIL douglas@callinanchambers.com.
[1] [2014] HCA 36; (2014) 254 CLR 185 at [169].
[2] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [26].
[3] In a particular case, for ‘other road users’ may be substituted ‘vehicle passenger’, or – subject to statute - ‘persons who may suffer foreseeable recognisable psychiatric injury in consequence of witnessing, or a close family member being told of, actual or apparent injury to another road user’.
[4] [2014] NSWCA 223; (2014) 87 NSWLR 593 at [7].
[5] Civil Liability Act 2002 (NSW) s5B; Wrongs Act 1958 (Vic) s48; Civil Liability Act 2003 (Qld) s9; Civil Liability Act 1936 (SA) s32; Civil Liability Act 2002 (WA) s5B; Civil Liability Act 2002 (TAS) s11; Civil Law (Wrongs) Act 2002 (ACT) s43; no analogue exists with the Personal Injuries (Liability and Damages) Act (NT).
[6] [2011] NSWSC 292 per Garling J; the case went on appeal but without disturbing this statement of principle.
[7] Like errors occur in pleading causation for want of plea of the counterfactual position in the circumstance of alleged breach by omission: see Findlay v Victoria [2009] VSCA 294 at [2], [3]; James v Queensland [2015] QSC 65 at [43], [49]; Graham & Linda Huddy Nominees Pty Ltd v Byrne and Others [2016] QSC 221.
[9] Ibid at [60].
[11] For example, Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; (2015) 90 NSWLR 1; Gulic v Boral Limited [2016] NSWCA 269.
[12] [2015] NSWCA 320; (2015) 91 NSWLR 752 at [118], [119]; see also Optus Administration Pty Limited v Wright [2017] NSWCA 21 at [248]- [254].
[13] Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177; [2013] 1 QdR 476 at [56]- [64].
[14] Paris v Stepney Borough Council [1950] UKHL 3; [1951] AC 367 (one-eyed worker); Pasqualotto v Pasqualotto [2013] VSCA 21 (worker with a prior spinal fusion).
[15] [2009] NSWCA 169 at [39]- [41].
[16] [2009] WASCA 173 at [47], [48]; High Court special leave refused 18 June 2010: [2010] HCASL 183.
[17] [2015] HCA 47; (2015) 256 CLR 148 at [54].
[18] [2001] QCA 234; [2002] 1 QdR 474 at 486-7.
[19] Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at [40]- [50].
[20] Optus Administration Pty Limited v Wright [2017] NSWCA 21, a case concerning the foreseeability of criminal assault, that being a sphere replete with difficulties concerning duty content: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254; Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; (2002) 55 NSWLR 659; Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360; QBE Insurance (Aust) Ltd v Orcher; Bowcliff v Orcher [2013] NSWCA 478.
[21] [2013] QCA 80 at [55].
[23] [2015] NSWCA 330 at [113]- [118]; see also Silwood v Chandler [2016] QCA 273.
[24] [2016] UKSC 6 at [111].
[25] [2016] QCA 147 at [17].
[26] Shaw v Thomas [2010] NSWCA 169 at [44]; Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 QdR 319 at [26].
[27] NSW s5H; QLD s15; SA s38; WA s50; TAS s17.
[28] NSW s49; QLD s46.
[29] Vale v Eggins [2006] NSWCA 348 at [27]; French v QBE Insurance (Australia) Ltd [2011] QSC 105 at [103]- [105].
[30] NSW s30; VIC ss67-75; SA ss33 and 53; WA s55; TAS s32; ACT s36.
[31] NSW s54; QLD s45; SA s43; TAS s6; NT s10; ACT s94.
[32] VIC s14G(2).
[33] [2014] NSWCA 127 at [55].
[34] [2016] QSC 304 at [89], [90].
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