Butler & Ors v The State of Queensland

This interesting matter concerned the liability of the State of Queensland to certain land owners in the suburb of Collingwood Park whose land had subsided.  The plaintiffs alleged that the State had owed them a duty of care which they had breached by granting mining licences for the extraction of minerals under their land, in failing to supervise and monitor the mining under the land, the failure to warn of on-going risk of subsidence and the failure to undertake remediation work.

Of particular interest in this case is his Honour’s identification of the circumstances in which a public authority will owe a duty of care to members of the public in respect of the exercise of statutory powers.  The following principles relating to the identification of a duty of care can be identified:

•An essential requirement is that the relevant authority had the power to act in the manner in which it is said would have avoided the damage.

•Whether or not a statutory regime casts upon the authority a duty of care is determined by a close examination of the terms, scope and purpose of the legislative provisions and ascertaining whether or not the regime facilitates a relationship between the authority and a class of persons that displays the characteristics of a duty of care?

•An evaluation of the relationship between the holder of the power and the person or persons to whom it is said that the duty is owed has to be undertaken.  That multi-faceted inquiry necessarily involves a consideration of the foreseeability of harm, the degree of vulnerability of the affected persons and the consistency between the existence of a duty of care and the terms, scope and purpose of the relevant power.  His Honour accepted that the non-exhaustive list of matters identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676 [103] were appropriate matters to be considered in this process.

•It was also observed that where the loss in question involves the suffering of pure economic loss the five relevant factors referred to in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 529-531 have to be assessed.

•In identifying that a duty of care existed, his Honour noted that the powers of the State to impose conditions on the mining activities and to monitor them were consistent with the existence of a duty of care.  In particular, the State had a substantial amount of control over the risk of harm being sustained by the land owners from the mining activities through its powers of monitor and supervise compliance with mining conditions.

It was held that the duty of care was breached by a failure to properly monitor compliance with the conditions of mining and that the plaintiffs’ losses were caused by the breach of duty.