On 19 December 2018 the Court of Appeal, comprised of Meagher JA, Payne JA and Simpson AJA, delivered judgment dismissing an appeal, and in so doing, holding that the Commonwealth of Australia owed no duty of care to persons who drowned in Australian waters while en route to seek asylum. The decision includes a useful analysis of the process of recognising a novel duty of care.
On 15 December 2010, a boat (SIEV 221) conveying people to Australia from Indonesia smashed on rocks around Christmas Island in a monsoon. 41 people were saved from the wreck. 50 others drowned.
Supreme Court proceedings
A class action was commenced in the Supreme Court of NSW by different categories of persons associated with the shipwreck of SIEV 221, including passengers who were saved, relatives of the deceased and rescuers / onlookers (who claimed for nervous shock). The Commonwealth of Australia was the defendant.
The plaintiffs’ causes of action were framed in negligence and breach of statutory duty. Broadly speaking, it was alleged that what occurred was a tragedy that could have been avoided had a Commonwealth Border Protection Command vessel intercepted the boat prior to the shipwreck or rendered assistance earlier after the shipwreck.
Separate determination of issue
The Commonwealth’s defence was that it owed no duty of care to the persons on the vessel. There was a hearing of a separate determination of issue on this question heard before Bellew J, to determine whether the class action should proceed. Judgment was delivered on 13 September 2017. His Honour found that no duty of care was owed.
The plaintiffs /appellants appealed to the NSW Court of Appeal.
Issues on appeal
The appellants argued that the primary judge erred in finding that the Commonwealth did not owe a duty of care to members of the class including passengers, relatives of passengers, rescuers and onlookers. The appellants sought to rely on Robinson v Chief Constable of West Yorkshire Police  AC 736 as an analogous case to argue that a duty of care existed. Alternatively, the appellants argued a novel duty of care should be found in the circumstances of this case.
Court of Appeal judgment
Payne JA wrote the lead judgment, Meagher JA and Simpson AJA agreeing.
Did a duty of care exist?
Payne JA commenced by noting that the appellants’ reliance on Robinson was misplaced. Robinson concerned a situation where the plaintiff, an elderly woman, was injured after being knocked over by two police officers who were struggling with a suspected drug dealer whom they were attempting to arrest. The House of Lords found that the police officers owed the plaintiff a duty of care in those circumstances. However, the House of Lords took pains to distinguish that case, which involved a positive act on the part of the police officers (wrestling with a suspect in a crowded area), from other cases where liability is said to arise by omission (such as the Commonwealth’s alleged failure to intervene at an earlier stage). Payne JA cited with approval from Robinson the following passage:
“The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by others) … It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes.”
In this case, there was no evidence that any act by the Commonwealth increased the risk of harm.
Should a novel duty of care be recognised?
Having rejected the submission that a duty of care already existed, Payne JA turned to the question of whether a novel duty of care could be found in the circumstances. As a starting point, he noted that the mere foreseeability of harm does not produce a duty to prevent its occurrence: Sutherland Shire Council v Heyman (1985) 157 CLR 424.
Payne JA also noted that, as a general rule, the common law “casts no duty up on a man to go to the aid of another who is in peril or distress, not caused by him”: Hargrave v Goldman (1963) 110 CLR 40;  HCA 56.
Payne JA noted that the recognition of a novel duty of care, despite the above problems, depended on the existence of “salient features” in the relationship between tortfeasor and victim, such a control, assumption of responsibility, and knowledge of vulnerability by the tortfeasor. Payne JA assessed all of these features and drew the following conclusions:
Assumption of responsibility: The appellant contended that the Commonwealth was responsible for the conditions of the shipwreck, by encouraging an expectation among people smugglers that their boat would be intercepted if in any danger. Payne JA found there was no evidence for this proposition. Payne JA also rejected the submission that the naval patrols represented an assumption of responsibility. Those patrols were for a law enforcement purpose, not a rescue purpose.
Vulnerability: Payne JA noted that ‘vulnerability’ for the purpose of determining if a novel duty of care arises is not concerned with vulnerability in a general sense, but rather vulnerability to protect themselves from the consequences of the tortfeasors want of reasonable care. In this case, the persons on SIEV 221 had voluntarily embarked on the vessel, and even if they were fleeing persecution in their country of origin they were not fleeing persecution from Indonesia. The persons on the SIEV 221 were not vulnerable, as they were able to protect themselves from the Commonwealth’s alleged want of duty of care: by not embarking on the vessel in the first place.
Control: Payne JA noted that a crucial question to determining whether to recognise a novel duty of care was the degree to which the Commonwealth had control over the situation. If a statutory agency has little control over a risk of harm, that tends against the recognition of a novel duty: Graham Barclay Oysters Pty Ltd v Ryan  HCA 54. Applying those principles, Payne JA noted that the Commonwealth had very little ability to safely intercept the vessel in monsoon conditions, next to the shore of Christmas Island. It had no control in the relevant sense. The fact that SIEV 221 was, as a matter of law, the property of the Commonwealth under the Migration Act did not amount to control.
Consistency and coherence with other law: Finally, Payne JA noted that to recognise a novel duty of care in this case would be contrary to objectives of the Migration Act, which is designed to prevent irregular arrivals by sea. If a suggested duty of care would give rise to inconsistent obligations, that is ordinarily a reason for denying that the duty exists: Sullivan v Moody  HCA 59.
The Court of Appeal upheld the primary judge’s conclusion that no novel duty of care arose in this case, and dismissed the appeal with costs.
As illustrated by this case, novel duties of care are increasing being alleged by plaintiffs in circumstances where the common law has traditionally declined to find the existence of a duty. This case provides a useful summary of the factors to consider when determining whether a novel duty exists. Whether the novel duties of care are found to exist will turn on the facts of each case, as well as changing social values as the law evolves.