Precedent, Distinguishing and the Duty of Care
A State Supreme Court (Court of Appeal) decided in 2019, in Case A, that a local council owed no duty of care to a resident who tripped on an uneven footpath, because the council's inspection regime was reasonable and policy considerations about resource allocation told against a duty. In 2023 the High Court decided Case B, holding that a statutory authority exercising a power to maintain infrastructure can owe a duty where it has actually created or increased a risk. A new case, Case C, involves a council that resurfaced a path in 2021, left a raised lip, and did not inspect for 18 months; the injured resident sues. The council argues Case A is binding and the claim must fail. Counsel for the resident argues Case B applies. A statute provides that nothing in the Act 'confers a duty of care' but does not exclude one.
1. Explain how the court in Case C should treat Case A and Case B, using the doctrines of binding precedent and distinguishing.
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Case A binds lower courts in the same hierarchy and, being a decision of the Court of Appeal, would ordinarily bind a single judge of that court. But bindingness depends on material similarity. Case A concerned a failure to maintain with a reasonable inspection regime; Case C concerns a council that affirmatively resurfaced the path, created the raised lip, and then failed to inspect for 18 months. Those facts engage the principle in Case B - actual creation or increase of risk - which Case A did not consider. The court can therefore distinguish Case A on its material facts and apply Case B, which as a High Court decision is binding authority throughout the Australian hierarchy. Even if Case A were not distinguishable, the Court of Appeal could reconsider its own earlier decision where it is convinced it is plainly wrong, particularly where a later High Court decision has changed the governing principle. The correct technique is to state the principle, compare material facts, and explain why the difference matters to the outcome - not merely to assert that the cases differ.
2. Advise on the effect of the statutory provision and on what the resident must still prove.
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The provision is neutral: it says the Act does not confer a duty, but it does not say a duty is excluded. At common law a statutory power does not itself generate a duty; the question is whether, in all the circumstances, a relationship of proximity or a salient feature justifies imposing one. The statute therefore neither creates nor forecloses the claim, and the resident must establish a duty at common law using Case B's reasoning. The resident must then prove: (1) that the council created or increased the risk by resurfacing; (2) that the risk was reasonably foreseeable; (3) that a reasonable council would have inspected sooner and that the 18-month gap fell below the standard of care; (4) causation - that the raised lip caused the fall; and (5) damage. The council's best defence is that its decisions about inspection frequency are resource-allocation policy, which courts treat cautiously, but that argument is weaker where the council itself created the hazard, because the policy immunity is designed for allocative choices, not for careless execution of work the council chose to do.