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Shaw v Director of Housing

SHAW V DIRECTOR OF HOUSING [2000] TASSC 115

Supreme Court of Tasmania – 22 August 2000

FACTS

Shaw bought land and proposed to construct a shopping centre on that land near the public housing suburb of Rocherlea. The land was on the only access road to the suburb. However the Director of Housing planned to develop a nearby site as a shopping centre for Rocherlea and decided that it would be inappropriate to have two shopping centres.

An officer from the Director’s office told Shaw’s parents that the Director intended to double the size of Rocherlea within 3 to 5 years and that the best site for the shopping centre would be on land owned by the Director as that site would be in the centre of the expanded suburb. The parents were also told that Director’s site was on a road which would be extended to become another access road to the suburb.

Shaw relied on the representations made by the officer and sold his land and purchased the Director’s land instead. Shaw was also contractually obliged to develop a shopping centre on the site.

However the Director later decided not to expand Rocherlea and the second access road was not built. Shaw developed the shopping centre but sold the land at a loss. Shaw sued the Director of Housing for Negligence.

ISSUES

Did the Director owe a duty of care to Shaw to avoid providing negligent advice?

Had the Director breached any duty of care owed to Shaw and had the breach caused Shaw to suffer any loss?

FINDINGS

The Director knew that Shaw would rely on the advice given about the future of Rocherlea and it was reasonably foreseeable that Shaw would rely on the advice and would suffer loss if the advice was incorrect. Therefore the Director owed a duty of care to Shaw.

The Director carelessly provided advice to Shaw without making sure it was correct. Shaw relied upon the advice and purchased the Director’s land and was forced to build the shopping centre at a loss.

QUOTE

Underwood J said:

“Clearly there was a breach of the duty of care. Mr L was a senior planning officer of the defendant. There is no evidence that he made any enquiry prior to speaking to Mr and Mr Shaw with respect to the defendant’s then current plans for the future development of Rocherlea.

Has appropriate enquiry been made before the representations were uttered, it would have become apparent that the defendant did not have the intentions attributed to it, nor did any other authority have an intention to construct a link road to Ravenswood.”

IMPACT

Government officials should be careful about providing advice to the public if there is a chance that the advice would be relied upon and that the person receiving the advice will suffer loss if the advice is incorrect.

If advice is provided to the public that advice should be recorded in writing to ensure that the contents of the advice can be recalled if necessary.

Hackshaw v Shaw

HACKSHAW V. SHAW [1984] 155 CLR 614

High Court of Australia – 11 December 1984

FACTS

Shaw was the owner of a farm where petrol was stored for farming machinery. The petrol was being stolen at night and Shaw decided to ambush the next thief of petrol. He therefore lay in wait near the petrol tank.

Hackshaw was in a stolen motor vehicle with Cox when Cox drove into Shaw’s farm, with the headlights turned off, and started stealing petrol. Shaw fired two warning shots at the car and hit Hackshaw who was in the front seat.

It was accepted that Shaw had not known that Hackshaw was in the car. Hackshaw sued Shaw seeking compensation for her injuries.

ISSUES

  1. Did Shaw owe a duty of care despite her being a trespasser on his hand?
  2. Had Shaw breached a duty of care to Hackshaw when he shot his rifle at the car?
  3. Was Hackshaw pertly liable for her injuries by trespassing on the land?

FINDING

Shaw owes a duty of care to Hackshaw to avoid injuring her by his rifle. He should have foreseen that it was likely that there could be a passenger in the car and was negligent in firing the rifle at the car.

Hackshaw’s actions accompanying Cox had contributed to the injury as she had illegally entered Shaw’s property.

QUOTE

Deane J said:

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of reasonable of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person to which the visitor is a member.

The measure of the discharge is what a reasonable man would, in the circumstances, do upon the land, the mere relationship between occupier to take reasonable care to avoid a foreseeable risk of injury to him or her. When the visitor is on the land as a trespasser the mere relationship of occupier and trespasser has imposed upon the occupier will not satisfy the requirement of proximity or give rise to a reasonably foreseeable risk of relevant degree of proximity. Something more will be required.

The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk …..they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of real risk of such presence.”

IMPACT

It is now clear that an occupier of property can owe a duty of care to a trespasser if it can be proven that it was foreseeable that the trespasser could be injured by the negligent acts of the occupier.

Contract Managers should be aware that sometimes a duty of care can be owed to people who commit the illegal act of trespass.