A class action is also regarded as a representative suit and it is lawsuit in which one person represents a larger group of people in courts as the complainant (Leg, 2014). The dominance of globalization which has forced many people to adopt new and complex technologies continue to put many people at risk of harm. It has been argued this form of litigation is tremendously complex because of the many complainants in the case. It bears noting that consent is not a requirement for one to be involved in a class action in Australia. The members of that class should not be in court although the result that will come in the end will affect their interest in that case (Mobil Oil Australia Pty Ltd v Victoria, 2002) The settlement that is reached at in such action must be sanctioned by the court but the member if that class must be given notice if such a settlement occurs (Leg, 2004). In Australian Securities and Investments Commission v Richards (2013) it was held that the court has a duty to safeguard and promote the interest of all the members is the settlement. In a representative suit the court has the discretion to determine the distribution of any money to the members of that a certain class of action (s33 v Federal Court of Australia Act 1976). According to Mercedes Holdings Pty Ltd v Waters [No 1] (2010) the court has the discretion to adjudge on the terms of the settlement or any the discontinuance of the suit. The power of the court in this case is exercised so that this may be fair to the parties. It is imperative to note that in a class action the legal costs that will be paid to the lawyers must be assessed and sanctioned by the court (Clarke v Great Southern Finance Pty Ltd, 2014).
The basic rule is that for one to be claimant in tort law action they must have suffered harm or injury as a result of the act or omission of the defendant. The person who seeking damage must show to the court that there was duty that was owed to him by the defendant and that the duty was breached thereby causing harm. It bears noting that the harm must have been caused by the act or omission of the defendant. The person that is entitled to damages must have been within reasonable limits of proximity with the action of the defendant. The famous dicta of lord denning that established the neighbor principle asserts that a neighbor is any person that is likely to be affected by the consequence of an act or omission and one which must be in the contemplation of the doer of an act (Donoghue v Stevenson, 1932). The vulnerability of an individual qualifies a aperson to become a calaiomant in aclass action. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd. (2004) the court held that vulnerability is defined as the inability of a person to prvent themesleves from being harmed by the cosequnces of an action of the defenmdant. The court also established that through the concept of vulenerability a duty of care of is imposed on the defendant.
In Perre v Apand (1999) it was held that a plaintiff in an action may be one that is vulnerable and may have not been able to take any steps to prevent harm that occurred to him or her. Further it was held that the members of a class must be cognizable to the defendant in the case. According to the doctrine of common law a person or persons whose demise was a consequence of a tort committed by another person are entitled to bring an action and claim damages against the tortfesor. In Australia section 17 of the Supreme Court Act 1995 (Qld) recognizes that a person may seek damages in respect of a death that has been caused to a person who the claimant had an interest in. In Davies v Powell Duffryn Associated Collieries Ltd (1942) it was held that a claim for wrongful death may only be brought by a family member seeking damages due the loss of life of their own. It should be borne in mind that the damages recovered are not for the injury caused to the deceased but to the family and it must be proportionate to the injury suffered. The damages that are rewarded in this case are for a pecuniary loss and not for feelings or emotional suffering (Blake v The Midland Railway Company, 1852). It can be conceded that the person or class of member who can seek a claim of damages are those that have directly suffered harm and those that have suffered harm as a result of wrongful death caused by the defendant. The families of the 119 people who died can form a class of members and the 1000 people who suffered serious injures may also claim for damages. In addition those who lost their houses and property as a result of the fire may also be compensated. However, for the parties to be entitled to damages they must establish that the loss was caused by the defendant.
The basis of liability in this case is the tort of negligence. Negligence is an act or omission that is done without regard to the fact that other people may be affected by the consequences of that act (Blyth v Birmingham Waterworks Co, 1856). As has been stated in the case Donoghue vs. Stevenson (1932) people who are likely to be affected by the act or omission of an individual must be put in the contemplation of the individual. Negligence in cases of engineering is an indication that due diligence was not exercised and the best professional standards were not applied by the individual. There are essential elements that must be satisfied by the claimants in this case for them to have a strong case. The defendant must owe the claimant a duty of care and the duty must be breached thereby giving the lee way for the claimant to seek damages. In addition the claimant must show that the harm that he has suffered was cause by the defendant’s act or omission. The plaintiffs in their class action suit have to proof to the court that the contractor of the electricity company was negligent in maintaining the power lines thereby leading to the fire. In Micklewright v Surrey County Council (2011) the court held that the event that has caused the harm must be reasonably foreseeable. However, it bears noting that the harm that has been suffered must not be foreseeable. In Home Office v Dorset Yacht Club (1970) the court held that the plaintiff has the onus of proofing that the there was a legal relationship of proximity that made it incumbent upon the defendant to take precaution against harming other. The claimants from the various class of action in the case study have to establish that AusNet owed them a duty of care. The location of the wire line meant that incase any thing goes wrong, it was likely that there will be harm that will be caused to the people who may be within reasonable limits of the location.
Additionally, in a claim of negligence the plaintiffs have to establish that it was the act of the defendant that caused the harm that they have suffered (Wilsher v Essex Health Authority, 1988). Therefore the claimant in the case study have to show that the economic damage that they have suffered has been caused by AusNet electricity company and the contractrs who negligently failed to conduct a routibne inspection on the electricity wire lines. In Sydney Water Corporation v Turano (2009) the test for determining duty of care in a cklaim of nmegligence to find out if the risk that occurred was foreseeble and that if vulnerable persons were likely to be injured and not a determination of how the risk shoul have ben averted. The liability of the contractor will be for the econpomic ;loss that has been sufferd by the mebers a class action suit. In Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) it was held that a defendanmt will be liable for economic damages when they do not reasiobnaly foresee that there negligent actions may cause harm to people for a general class of action. The the remedy that may be sought in class action is a remedy for pure economic loss although a plaintiff in a claim of negligence has sevral remedies that he may seek in court. Closely related to the calim of negligence is the issue of vicarious liability in tort. Although this was not an area of concer in the case study it is significant in determining liability between a contractor and an employee. To establish a negligent liability it is prudent to determine if the contractor was acting in a capacity of an independednt contractor or as an agent of the principal. It is instructive to note that the principal who is AusNet Ectricty Company will only be liable if there is an independent contactor. The liability of an independent contactor in negligence action is predicated on the idea that the owner if the company will not be liable if the contractor as acting in his own capacity and not as an agent of the principal (Sweeney v Boylan Nominees Pty Limited, 2006). AusNet Electricity Company will be liable as the owner of the company. Despite the fact that the negligent occurred due to the fault of the contractor, the owner of the company will be vicariously liable for the civil; wrongs that they have committed.
It is submitted that AusNet may also be liable for the tort of Nuisance because the fire that escaped to Burnie Ports Authority. Nuisance has been defined as the continuous unwarranted interference of the enjoyment of an interest in land (Bamford v Turnley, 1860). In this case the liability will be for a private nuisance which traditionally is brought under the rule in Ryland v fletcher (1868). Accordning to Bermingham (2008) there are three basic elements that must be fulfilled for a successful action of private nuisance. Firstly, there must be interference of property that is cause by the defendant. Secondly, the interference must be so significant and unreasonable. In determining whether the interference is significant the court will seek to ascertain whether there was actual encroachment on the property of the claimant which must be the neighbor. It is worth noting that the claimant must show that there is physical damage to property including vegetation (Looney, 1996). The degree of interference must be high that will deny the claimant the obvious right to enjoy the land (Gaunt v Fynney 1872). Thirdly, the defendant can show that there was interference of with peaceful existence and enjoyment of land (Robson v Leischke, 2008). According to Murphy (2009) the interference that is caused by the nuisance must be persistent and recurrent. However, it has to be noted that AuNet Electricity Company was not the cause of the fire since for a claim in nuisance to succeed the interference must have been caused by the defendant (Matthews v SPI Electricity Pty Ltd & Ors, 2014).
The families of the deceased may sue under wrong full death but it fact important to determine the extent to which the contactors may have been liable a negligence action. The people who were injured may be a claim in negligence but there are circumstances in which the liability may be limited. Since the inception of the doctrine of duty of care in Donoghue vs. Stevenson (1932) there has been a notable precipitous surge in claims of negligence by litigants. This has created the acute need to limit the extent to which a defendant may liable incase such a claim arises. The nerve of the reasoning behind the limitation of liability is the emergence of economic and that to impose a liability on the defendant an injustice. It is thus submitted that the liability that may incur on AusNet services may be limited comparatively. If there is a frequent and a costly occurrence of the alleged negligent action and the cost inordinately surpasses of taking precautions the liability it may be justifiable to limit the liability of the negligent action. The defendant may proof to the court that taking a precaution would not have resulted to any benefit. Therefore AusNet Electricity Company may argue that despite the fact that the contractors had not conducted an inspection the fault to the power line is a frequent occurrence and maintenance of it is costly. It can be concede that the cost that may be applied in determining if liability should be limited in Negligence is the magnitude of economic loss suffered when taking precautions and the benefit of doing so.
The court in Roads and Traffic Authority of NSW V Dederer (2007) the court held that there are three factors that must be that will be put to test when determining limitation of liability in negligence. First, the court noted that it will have to be satisfied that the magnitude of the risk is involved is also insignificant. It seems that the court is indisposed to admit a limitation on liability in cases where the risk involved is so high. The rationale for this view is that it may be unreasonable to allow nearly 1000 people to lose lives and damage to property to occur frequently. Secondly, it will seek to asses whether the precautions were in fact practicable. The case that may be applied in determining the extent to which an action be reasonably practicable was establish in the land mark ruling of Edwards v National Coal Board (1949). The court ruled that the magnitude of the risk must be pout on a weigh scale against the actions that may be taken by the defendant to prevent the harm. The rule is risk involved must not be disproportionate to the precautions that may have been taken by employer. The vital factors that will be put to scrutiny is the time, effort and cost involved in taking a particular precaution (Austin Rover Ltd v Inspector of Factories, 1989). It therefore, follows that to limit the liability in negligence the precaution that would have ben taken must not be reasonably practicable. Hayne J in Vairy v Wyong Shire Council (2005) concluded that where the cost of averting the risking or talking precautions is inordinately low yet the defendant failed did nothing to avert it, the logical conclusion in the law of negligence is that the defendant did not act with reasonable care and that any action to avert the risk would be reasonably practicable. Ideally, to limit the liability of negligence under the second limb it is not a requirement for the defendant to show that the taking precautions was physically impossible but it only has to be reasonably impracticable. Thirdly, the court will seek to know is the risk was so obvious or if the claimant may have volunteered to be harmed. If the risk is obvious to an ordinary reasonable man the court may limit the liability of the defendant in the negligent action. In addition the act volunteering to harm may also limit the liability because there will be no causal link between the harm suffered and the cause of it.
It is imperative to note that reasonable foreseeability of harm is also an essential ingredient in determining whether liability of the defendant will be limited. Generally, the liability will be limited if the risk that was involved was not reasonably foreseeable. In Wyong Shire Council v Shirt (1980) Mason J noted that the imperial question that the court should ask is whether a reasonable person would have foreseen that the risk would occur. In other words the court will ask if a reasonable man who was in similar circumstances as the defendant would have taken the action that the defendant has taken to avert the risk. It can thus be argued that if a risk is very insignificant or remote the court is obliged to adopt the view that the risk was not foreseeable. It is of interest to note that it sis not a requirement that the harm sustained must have be foreseeable but only the risk involved. Therefore the inference that can be withdrawn in the assertions on the element of foreseeability is that liability will only be limited if the risk was not reasonably foreseeable.
In respect of the action that may be has been taken by the Burnie Ports Authority liability I nuisance may only be limited if the fire was not caused by the AusNet Electricity company. It has ben argued that is the landlord leases the land to another person who either uses or does not use the land, he will not be liable for a claim in private nuisance. However, the landlord cannot rely on this limitation of liability of the purpose to which the land has been leased is an obvious nuisance (Tetley v Chitty, 1986). It has also been held that the liability may be limited if the property that has been damaged by the nuisance caused was abnormally sensitive. However, it has been held in Robinson v Kilvert (1889) that if the nuisance caused by the defendant would not cause harm if the property was not sensitive to the nuisance then liability will not attach on the defendant. Conversely, if the nuisance would have ordinarily damaged property that is not abnormally sensitive liability for private nuisance on the defendant will attach (McKinnon Industries v Walker, 1951). It can be argued that if the property that Burnie Ports Authority may claim was damaged by the nuisance was abnormally sensitive to fire AusNet Electricity Company will not be liable for nuisance. However, if the fire was likely to harm property that was not normally sensitive to fire and yet it still caused harm to Burnie Ports Authority’s property AusNet Electricity Company will not be liable.
The Architects Accreditation Council of Australia has established a code of ethics and conduct for engineers conducting their practice in Australia. The most important procedure that should be applied is AusNet Electricity Company and the contractor’s company to ensure that there is a strict adherence to the code of ethics and conduct by their members. This promotes the notion of professional responsibility the practice of engineering. It is worth noting that there is no statute that governs the professional responsibility of engineers in Australia. In Hedley Byrne & Co Ltd v Heller and Partners Ltd (1964) the court held that the advice that is given by a person with a professional skill creates a duty of care which when breached attracts a liability of professional negligence. The contractors have to give sound advice in performance of their duties that will not lead to the occurrence devastating events. Despite the fact that the contractor’s duty in the case study was not to give advice but to ensure the maintenance of the power lines the underlying fact is that manager in such companies instruct and give information to juniors who undertake the task. Therefore the information must not be given negligently.
On the other hand, in maintaining there professional obligation, the company should ensure that the standard of acre that they apply as they carry out their task is that of a reasonable person who is practicing the same profession. In Voli v Inglewood Shire Council (1963) Windeyer J pronounced that architects have an obligation to ensure that they exercise reasonable skill and care to avoid causing harm to people and property through their actions. It is submitted that if the engineers can exercise a standard skill and observe a reasonable care in their practice they will avoid an exposure to claim of negligence. In Vulic v Bilinsky (1983) it has been held that the professional have greater mandate to ensure that the duty of care is exercised reasonably.
To evade an action in negligence the managers of engineering companies have to ensure that the adopt measure that will ensure that the risk is ‘as low as is reasonable practicable’ (ALIRP). This legal principle can be applied to ensure that they avoid breach of duty and a consequent action of negligence. Section 18 of the Work Health and Safety Act 2011 provides that an employer must have take reasonably practicable actions to ensure that any risk at the work place is minimized. The High court of Australia in Slivak v Lurgi (Australia) Pty Ltd (2001) when interpreting reasonable practicable, held that there is an acute need for employers to ensure that they take all factors into contemplation when they are taking precautions to avert the risk. The duty is to ensure that the actions taken will avert all the risks that are likely to occur. However, it bears noting the company should not only seek to protect the health and safety of the workers but also reasonably practicable precautions must also be taken against a risk that may harm people who the employer owes a duty of care.
References
Austin Rover Ltd v Inspector of Factories [1989] 1 WLR 520
Australian Securities and Investments Commission v Richards[2013] FCAFC 89
Bermingham, V., and Carol, B. 2008. Tort Law. Oxford University Press.
Blake v The Midland Railway Company (1852) 18 QB 93; 118 ER 35
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781
Bamford v Turnley [1860] 3 B&S 62
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad. (1976) 11 ALR 227
Clarke v Great Southern Finance Pty Ltd (rec and mgr apptd) (in liq) [2014] VSC 516
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Donoghue v Stevenson [1932] A.C. 562
Edwards v National Coal Board [1949] 1 KB 704
Federal Court of Australia Act 1976 (Cth) (‘FCA Act’)
Gaunt v Fynney (1872) 8 Ch App 8
Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 465
Legg, M., 2004. Judge’s Role in Settlement of Representative Proceedings: Lessons from United States Class Actions. Australian Law Journal 58, 68.
Legg, M., 2014. Class action settlements in Australia-the need for greater scrutiny. Melb. UL Rev., 38, p.590.
Looney, J.W., 1996. Rylands v. Fletcher revisited: A comparison of English, Australian and American approaches to common law liability for dangerous agricultural activities. Drake J. Agric. L., 1, p.149.
Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59
McKinnon Industries v Walker [1951] 3 DLR 577
Mercedes Holdings Pty Ltd v Waters [No 1] (2010) 77 ACSR 265, 268 [9]
Micklewright v Surrey County Council – [2011] All ER (D) 281
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 3
Murphy, J. 2009. The Law of Nuisance. Oxford University Press, Oxford,
Perre v Apand (1999) 198 CLR 180
Roads and Traffic Authority of NSW V Dederer [ 2007] HCA 42 30
Robinson v Kilvert [1889] LR 41 ChD 88
Robson v Leischke(2008) 72 NSWLR 98, 296
Rylands v Fletcher [1868] UKHL 1
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6
Supreme Court Act 1995 (Qld)
Sweeney v Boylan Nominees Pty Limited [2006] HCA 18
Sydney Water Corporation v Turano [2009] HCA 42
Tetley v Chitty [1986] 1 All ER 663
Vairy v Wyong Shire Council (2005) 223 CLR 422
Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74
Vulic v. Bilinsky (1983) 2 NSWLR 427, 483
Woolworths Ltd v Crotty (1942) 66 CLR 603
Wyong Shire Council v Shirt (1980) 146 CLR 40
Woolcock Street Investments Pty Ltd v CDG Pty Ltd. [2004] HCA 16
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