Dear Colleagues;

The latest decision from the High Court is not directly on private law, but it has some passing comments on the side which those interested in torts as rights might find useful. In Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 (6 February 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/2.html the main issue was whether the Commonwealth criminal law on aviation safety was “exclusive” of local health and safety law in the Northern Territory, where a lady about to board a hot air balloon had been sadly killed by being dragged into the fan blowing up the balloon. On that question the majority (6-1, though in the majority Gageler J took a slightly different approach to the rest) held that the Cth law was not exclusive, and could operate in parallel to the WHS law, at least in relation to boarding procedures where the balloon had not yet taken off. I have done a note here on the WHS issues, where I think the majority got it right- see https://works.bepress.com/neil_foster/129/ .

The dissenter was Edelman J, and this is one of those rare cases where I think his Honour got it wrong on the constitutional point. But in the course of his judgement he made some helpful comments on tort theories!

Let me paste here a short extract from my note which may be of interest to people on this list:

Finally, there are some interesting comments made by Edelman J about matters connected with aviation that, even on his Honour’s broader view, are not likely to be part of the exclusive Commonwealth regime. In particular, he notes that civil liability for wrongs suffered in an aircraft-related incident are not part of the exclusive regime. Scholars who have offered a “rights-based” analysis of the law of torts will receive incidental encouragement from his remarks at [150]-[151]:

150 The rules of the law of negligence might have the effect of promoting safety, but that is not their object. A person who digs a pit knowing that another may fall into it creates a grave risk to safety. But the person infringes no-one's rights, and therefore commits no tortious act, unless someone falls in it. A driver who grossly exceeds the speed limit may create serious risks to safety and will contravene laws designed to ensure safety, but no-one's rights are infringed, and no tort is committed, if no-one is injured and no property is damaged. The driver has not violated the rights of all those persons he or she might have injured. Not only is a threat to safety insufficient to establish negligence, it is also unnecessary. A surgeon who fails in his or her assumed responsibility to warn an individual of a remote risk of complications from surgery can commit the tort of negligence even if no risk to safety is created by that failure.

151 The law of negligence, and indeed the law of torts generally, is not the judicial regulation of safety. Torts are concerned with the protection of the rights of individuals. That is why it is sometimes said that there is no negligence in the air. A regime that is concerned with safety has a different purpose and regulates a different subject matter from one that is concerned with the violation of individual rights. (emphasis added)

I think this analysis is very helpful, though there is one aspect of it that I would nuance lest it be misunderstood (and this issue was not part of his Honour’s discussion.) To say that a “safety” regime in general is a different thing from the law of “individual rights” is true, but this should not be misunderstood in a statutory context to exclude the possibility of a rights-based action grounded in a statutory breach. In the law governing the tort of “breach of statutory duty” (“BSD”), individual rights may be breached by the failure of an employer or other workplace participant to adhere to a statutory standard. In the context of the Work Health and Safety Act, for example, all versions of this model Act implemented in Australia (such as the NT WHS Act relevant here) contain a specific provision, s 267, dealing with this topic. Section 267(a) states that a breach of the Act itself will not give rise to a private civil remedy; but s 267(c) clearly leaves open the possibility that a court may find that Parliament intended to allow a breach of the relevant regulations under the Act to be used as the basis for a civil action. [For more analysis and justification of the views set out here, see N Foster and A Apps, “The neglected tort — Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law” (2015) 28(1) Australian Journal of Labour Law 57-76.]

Still, there seems no doubt that Edelman J is correct to say that the topic of civil liability for injuries occasioned through operation of aircraft is not part of the “exclusive” area marked out for the Commonwealth law alone, however broadly or narrowly that area is delineated. That indeed seems to be one purpose of s 28BE(4). It seems best to set this provision out in its context to understand it properly:

28BE (1) The holder of an AOC must at all times take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence.

(2) If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1).

(3) It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of:

(a) inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or

(b) failure to provide adequate systems for communicating relevant information to relevant people in the body.

(4) No action lies, for damages or compensation, in respect of a contravention of this section…(emphasis added)

The logic here seems to be as follows. Laws prescribing rules to be observed in the interests of safety have often been found by the courts to imply that a civil BSD action should also be available. The obligation to take “reasonable steps” to exercise “a reasonable degree of care and diligence” is similar to provisions of that sort. So, unless Parliament had spoken clearly to negate the implication of civil liability, it was a possible (some may say, probable) implication of this provision that such was available. Sub-section 28BE(4), then, makes it clear that a civil action for breach is not available. This protects both the companies concerned and also their individual directors (who would otherwise arguably be personally liable through the operation of s 28BE(2).)

All this is a sideline to the main decision, though it may assist in understanding the operation of s 28BE(4). As the members of the High Court all point out, civil liability for aircraft operations is a topic dealt with by other specific Commonwealth laws, and arguments about the lines to be drawn between those laws and the common law, and other State laws regulating civil liability, are a matter best left for another occasion.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

CRICOS Provider 00109J