Concise Australian Commercial Law

Issue 

The central question in the case of Romeo v Conservation Commission of the Northern Territory is whether or not the authority is accountable for failing to construct a protective barrier along the two-kilometre-long cliff face. Alternatively, it was contended that the Conservation Commission has a responsibility to build a warning sign near the car park to alert visitors of the dangers of the cliff and if this is their responsibility. The difficulties, in this case, are related to the concepts of breach of duty, clear danger, and calculus of negligent behaviour.

Rule

Generally speaking, negligence is defined as a violation of the duty of reasonable care that results in harm or loss to an entity or a person to whom the obligation is due. The obligation of reasonable care, the violation of that duty, and the damages are the three main aspects of the, which are as follows: 

The calculus of negligence is described as the process of establishing whether or not a legal obligation has been broken in a particular situation. Under the principles of common law, when someone freely assumes the danger of something that eventually materialises, there is no obligation of care on their part to take reasonable care (Latimer, 2012). An evident danger is defined as a risk that would have been clear to a reasonable person in the given situation or circumstance. The High Court of Australia is confronted with the problem of determining the culpability of a public entity by the principles of common law. When it comes to legal precedent, the case is regarded as the successor to Nagle v Rottnest Island Authority, which resulted in the decision that statutory authorities must rigorously follow rules to avoid responsibility in the event of carelessness on their part (James and Thomas, 2020). It was not in doubt in the case of Romeo v Conservation Commission of the Northern Territory (1998) that the authority had no obligation of care, but the judges claimed that it was the nature, substance, and origin of that duty of care that was in dispute.

It was the appellant’s contention in this case that the Conservation Commission of the Northern Territory had a responsibility to install a fence across the cliff to prevent people from going down the cliff. An insufficient amount of illumination, no warning sign indicating the presence of hazard near the cliff, and no barrier or fence to protect people from going from the cliff were all present (Gibson, 2020). The notion of general negligence, which was established in the case of Australian Safeway Stores v Zaluzna, has altered the traditional idea of occupiers’ culpability in the workplace (Latimer, 2012). In this particular instance, the statement offered by the appellant is based on an out-of-date definition of responsibility. The appellant, on the other hand, relied on the fact that the commission should have taken the proper precaution of installing a fence along the cliff to prevent people from going down. It has been maintained that to impose a duty, the risk must be foreseeably dangerous to the consumer. It was asserted in the case that the likelihood of someone going from the cliff is quite high, particularly given the vast number of people who frequent the location, the majority of whom are adolescents, and the fact that alcohol drinking is widespread at the location (Manderson, 2006). However, on the other hand, the respondent stated that the case of Nagle was distinct and that the obligation of public authority was unreasonably burdensome to regulate the property that was in the public’s possession and usage.

According to the circumstances of the Nagle case, officials were in charge of preventing any injuries on the island, and they were also encouraging people to swim in the area around the island when the incident occurred. Authorities, on the other hand, failed to warn individuals about the dangers of diving into the water, and as a consequence, they have failed in their obligation to the general public, which may result in injury to members of the public. If we consider the circumstances, it is fair to conclude that a safeguard against the anticipated danger is required. The Nagle case was notable because it failed to provide a warning on a foreseeably dangerous situation, and a warning sign should have been sent to avert any risk. The decision reached by Dixon J, in this case, was based on the case of Aiken v Kingborough Corp, in which it was determined that a public authority owes a duty to the general public if the safety of the general public is controlled by the authority to prevent injury which might cause loss or injury to the general public to the general public (Lunney, 2017). The issue of whether the commission should have constructed fences across the cliff is connected to the resources and money allotted by legislation, rather than the element that will be decided by the court in this case. 

Application

As previously noted in the rule above, it has been established that just because there was a foreseeable danger does not imply that there is a legal need to take any action to mitigate the threat. When applying the judgement of a previous authority in this instance, which states that no matter how distant a danger is, if it is foreseeable, the authority should take measures to protect individuals from being damaged, it is not appropriate. Numerous measures should be considered by the court to evaluate whether a party owes a duty of care in different circumstances. The following are some of the various arguments that were made in the case:

Low probability: According to the reply, no injury has happened in the region in the previous 100 years, implying that the likelihood of damage is very low in this location.

Fencing: The installation of fencing would detract from the area’s primary appeal, which was its natural appearance. Due to the defendant’s public authority status, the defendant’s resources are limited, and devoting those efforts to unlikely incidents would divert those resources away from other vital endeavours.

High Burden: The expense and difficulty of building a barrier over two kilometres of cliff face would be prohibitively expensive, and it would detract from the appeal of the place.

Obvious Risk: Danger that should have been clear: The risk should have been obvious, and the plaintiff should have been aware of the risk.

The appellant contended that the authority was required to take proactive measures to avoid any damage from happening as a result of the foreseeable dangerous situation. The Nagle case was cited as an evident example, in which it was determined that the authority has a responsibility to take adequate measures to prevent any damage from occurring. But it was said that, as a result of this case, an excessive burden was placed on the authority, and Hayne J maintained that the Nagle case did not introduce any new principles into the context of the abovementioned case. The Toohey, Gummow, and Hayne decision said that this case should be interpreted in light of the Nagle decision. However, Kirby J suggested that the idea established by this case should be ignored and utterly discarded in the future. Aside from the majority of the judges, Hayne J was the only one who contended that the danger was clear and that the disaster happened as a result of the appellant’s negligence. As a consequence of this reasoning, the considerations that were considered in the Aiken case are narrowed.

There was a crucial question in this case that concerned the level of care that the authority owed to the general public and whether or not the authority had broken that standard of care. The key issue of contention between the minority and majority of judges was the extent to which it was necessary to install a fence across the cliff face in question. However, McHugh J remarked that there are additional sites where falls might occur in addition to those near the vehicle parking lot. Gaudron J urged that the car parking lot should be walled. The majority of the justices, including Gummow, Kirby, Toohey, and Hayne JJ, concluded that the authorities should have installed a fence along the two-kilometre stretch of the cliff that separated the two towns. Gummow, Kirby, and Toohey JJ agreed that an agreement regarding causation had been reached between the authority and the party, indicating that there had been a breach of duty. The minority judges argued that there could also have been contributory negligence on the part of the appellant; however, Gummow, Kirby, and Toohey JJ disagreed. However, none of the high court justices seemed to be committed to making a full statement or doing an in-depth investigation of the problems involved in the case.

Conclusion

Occupier liability is excluded due to the reasonable assumption that entrants would exercise reasonable care and the authority cannot be held accountable for those under the influence.

References

Manderson, D. 2006. Proximity, Levinas, and the Soul of Law. McGill-Queen’s Press – MQUP.

Gibson, A. 2020. Sports Law in Australia. Kluwer Law International B.V..

James, N. and Thomas, T. 2020. Business Law. John Wiley & Sons.

Latimer, P. 2012. Australian Business Law 2012. CCH Australia Limited.

Lunney, M. 2017. A History of Australian Tort Law 1901-1945. Cambridge University Press.