Due diligence Due diligence A legal perspective A legal perspective A legal perspective A legal perspective I. Engineers from Earth and lawyers from Mars II. Outline of the law III. Example Sharyn Durley LLB IV. Questions Barrister-at-Law sharyn@durley.com.au 0408 017 028
Henry The Sixth, Part 2 Act 4, scene 2, 71–78 Dick: The first thing we do, let's kill all the lawyers.
Due diligence Due diligence A legal perspective A legal perspective A legal perspective A legal perspective I. Engineers v lawyers II. Outline of the law III. Example IV. Questions Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
Outcome Decisions Risks and Options
When a ‘bad’ outcome … All legal judgments are made 1. with hindsight Judgment is made on basis: 2. � proven facts (evidence) � law of negligence, legislation. Robust methodologies good 3. evidence.
A reasonable defence Due diligence Due diligence I. Engineers v lawyers II. Outline of the law III. Example IV. Questions Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
Negligence Is there a duty of care? No Standard of care – Yes ‘reasonable person’ No Is there a No breach of Negligence duty? 1. Is there a duty of care ? No Yes 2. Was there a breach of Breach cause the duty of care? damage? Yes 3. Was the resulting injury or other damage caused by Negligence the breach of duty of care?
Civil Liability Act 2003 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 . (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)— (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm.
Civil Liability Act 2003 22 Standard of care for professionals (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice . (2) …. cannot be relied on…irrational or contrary to a written law .
WHS ‘ reasonably practicable’ 18 What is “reasonably practicable” in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) likelihood of the risk occurring (b) degree of harm that might result from the risk (c) what the person concerned knows, or ought reasonably to know , about the risk and ways of minimising it (d) availability and suitability of ways to minimise the risk (e) after assessing the extent and ways of minimising the risk, the cost of minimising the risk, including whether the cost is grossly disproportionate to the risk.
A reasonable defence Due diligence Due diligence I. Engineers from Earth and lawyers from Mars II. Outline of the law III. Example Sharyn Durley LLB IV. Questions Barrister-at-Law sharyn@durley.com.au 0408 017 028
Design… Constructed…
Statement of Claim Design of pedestrian and • vehicle access was unsafe Parked in car park • When exiting carpark on foot, • boom gate hit head, dazed Left game at half time • Went to doctor following day • Now suffers migraines, dizzy • spells, can’t work, needs help around home etc
Original Design
Preparing your defence � Chronology � Processes � Risks identified, � Documentation addressed…. � Design brief, plans � How decisions made � Variations � Who else involved � Meeting minutes � Experts – car park � Diary design, risk, gate � Photographs operation
Facts… � Identify risks to pedestrians generally? � Specifically identify this risk (ie boom)? � Car park design to acceptable standard? � Boom gate to standard?
Applying the law Is there a duty of care? 1. Is there are duty of care? No Yes 2. Is there a breach? No Is there a No breach of • standard of care? Negligence duty? No • s9 probability of harm, Yes Breach seriousness of harm, cause the damage? burden of taking Yes precautions, social Negligence utility
Livsey v Australian National Car Parks Pty Ltd [2014] NSWDC 232 (8 December 2014)
Finally… � A ‘bad outcome’ does not necessarily mean someone has been negligent � Documentary evidence is essential to defending a claim � Never forget the primary purpose of a rigorous risk management system.
A reasonable defence Due diligence Due diligence I. Engineers from Earth and lawyers from Mars II. Outline of the law III. Example Sharyn Durley LLB IV. Questions Barrister-at-Law sharyn@durley.com.au 0408 017 028
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