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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
Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
I. Engineers from Earth and lawyers from Mars II. Outline of the law
Henry The Sixth, Part 2 Act 4, scene 2, 71–78
Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
I. Engineers v lawyers II. Outline of the law
1.
2.
proven facts (evidence) law of negligence, legislation.
3.
Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
I. Engineers v lawyers II. Outline of the law
No
No Is there a duty of care? Is there a breach of duty? Breach cause the damage? No Negligence Negligence Yes Yes Yes No
duty of care?
the breach of duty of care? Standard of care – ‘reasonable person’
9 General principles (1) A person does not breach a duty to take precautions against a risk
(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.
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.
(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.
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—
Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
I. Engineers from Earth and lawyers from Mars II. Outline of the law
Design… Constructed…
vehicle access was unsafe
boom gate hit head, dazed
spells, can’t work, needs help around home etc
Original Design
Chronology Documentation
Design brief, plans Variations Meeting minutes Diary Photographs
Processes
Risks identified,
addressed….
How decisions made
Who else involved Experts – car park
Identify risks to pedestrians generally? Specifically identify this risk (ie boom)? Car park design to acceptable
Boom gate to standard?
No No
Is there a duty of care? Is there a breach of duty? Breach cause the damage? No Negligence Negligence Yes Yes Yes No
seriousness of harm, burden of taking precautions, social utility
Livsey v Australian National Car Parks Pty Ltd [2014] NSWDC 232 (8 December 2014)
A ‘bad outcome’ does not necessarily
Documentary evidence is essential to
Never forget the primary purpose of a
Sharyn Durley LLB Barrister-at-Law sharyn@durley.com.au 0408 017 028
I. Engineers from Earth and lawyers from Mars II. Outline of the law