The “incremental approach” to the law of torts (i.e. the development of the law of torts incrementally through novel cases by reference to analogous cases) has been favoured by the majority of the High Court.⁴⁷ Accordingly, we may draw on the principles as discussed in relation to negligent misstatements (which apply equally to advice and information)⁴⁸ and attempt to apply them to the dissemination by government of PSI online under open content licences.

The argument that physical injury and damage is direct and obvious, whereas with information or advice no loss results unless the hearer relies and acts upon the information or advice (the loss and damage in a real sense directly arising out of the hearer’s actions) was rejected by Barwick CJ in MLC v Evatt. ⁴⁹ As Lord Devlin reasoned in Hedley Byrne v Heller ⁵⁰:

A grave defect there would be in the common law if recovery permitted in the case of physical acts or omissions were denied in the case of information and advice given with a lack of due care.⁵¹

The same argument applies to public sector information (PSI) disseminated online under open content licences. The fact that incorrect information can cause loss or damage cannot be denied.⁵² However, it is important to recognise that the context in which the information is shared may be quite different from previous cases involving negligent misstatement. The early cases of Hedley Byrne & Co Ltd v Heller & Partners Ltd,⁵³ MLC v Evatt ⁵⁴ and Shaddock v Parramatta ⁵⁵ were concerned with ascertaining conditions which would attract a duty of care in responding to an inquiry for specific information. In addition, the provision of information or assurances by the public authority in Shaddock v Parramatta ⁵⁶ incurred a prescribed fee.

Previous decisions are but illustrations of the general duty of care in its application to particular circumstances of negligent misstatement, because ‘the special complications which arise in connection with the imposition of a duty of care on the author of a statement can only be unraveled in a variety of factual situations’.⁵⁷ Until there is a clear judicial pronouncement on the issue, the question remains—are the features of a special relationship as identified in these cases still applicable to this situation of government making PSI available online under an open content licence? Indeed, the release of information in the online medium creates another set of factors which may impact on the existence of a duty of care.

Where information is made available online (whether by a government agency or otherwise), liability may be greatly expanded.⁵⁸ It is difficult to assess how wide the neighbourhood principle extends.⁵⁹ Unlike the ginger beer in Donoghue v Stevenson ⁶⁰ which can only be drunk once and in all likelihood by one person only, information may be used by many, perpetuating the damage or causing multiple damages.⁶¹ The features of the relationship become more akin to communications via mass media, rather than a special relationship between the parties. Consequently, there may be good grounds to fear imposition of liability “in an indeterminate amount for an indeterminate time to an indeterminate class”.⁶²

Thus, it is all the more essential to identify the “relationship of proximity” in order to limit liability for information published to the world at large in this context.⁶³ However, this concept of proximity does not define legal rules which prescribe an issue of fact on which legal consequence depends.⁶⁴ As a result, it has been described as a “label of choice”, concealing underlying policy considerations motivating that decision⁶⁵ Further, the High Court has criticized it as “a convenient short-hand method of formulating the ultimate question in the case,” but one which “provides no assistance in deciding how to answer the question”.⁶⁶ Instead, by drawing analogies with previously decided cases, combined with a process of induction and deduction, we may systematically identify factors relevant in those cases to finding a duty of care and perhaps identify previously unidentified factors.⁶⁷

In the present context, it would appear that there are several factors (carrying with them corresponding policy reasons) which may influence whether a duty of care may be found to exist:

In Australia, the Crown’s historical immunity from suit was removed by the various state Crown Proceedings Acts⁹³ and at the Commonwealth level, the Judiciary Act 1903 (Cth).⁹⁴ Under these Acts, the Crown (both in right of the Commonwealth and in right of the State) is subject to the same common law tortious principles as its subjects and may be held vicariously liable for torts committed by its employees.⁹⁵

As there is no Commonwealth civil liability legislation, question arises as to whether the States and Territories have the legislative power to bind the Commonwealth government under their civil liability legislation. The Queensland legislation is the only state or territory legislation which specifically purports to bind the Commonwealth, so far as it is able to.⁹⁶ New South Wales, South Australia, Western Australia and the Northern Territory legislatures provide that their respective pieces of legislation bind not only the Crown of the respective jurisdiction, but also, so far as able, the “Crown” in all its capacities.⁹⁷

As yet, the courts have not been called upon to decide whether State or Territory civil liability legislation will bind the Crown in right of the Commonwealth. Generally, State laws of general application can bind the Commonwealth. In Pirrie v McFarlane,⁹⁸ the High Court held that a member of the Air Force was required to hold a Victorian driver’s licence when carrying out Commonwealth duties involving the operation of a motor vehicle within Victoria. Therefore, Commonwealth officers, employees and agents must comply with State laws of general application even when undertaking Commonwealth Government activities. However, in Commonwealth v Cigamatic Pty Ltd (in liq),⁹⁹ the Court held that States cannot bind the Commonwealth with laws which define or regulate Commonwealth rights or duties towards its subjects or which regulate or control its prerogative rights.¹⁰⁰ These principles were affirmed by the majority of the High Court in Re Residential Tenancies Tribunal of NSW and Henderson. ¹⁰¹

Civil liability legislation are laws of general application which apply to the Crown in regards to actions in which it may choose to engage in exercise of its capacities and functions (i.e. activities which it carries on in common with other citizens).¹⁰² The acts do not purport to govern the capacities and functions of the Crown in right of the Commonwealth.¹⁰³ In other words, the legislation covers the civil liability of the Crown should it be negligent in releasing PSI which causes loss, but it does not affect the Crown’s ability to release PSI. In short, it is likely that, as far as negligent acts or omissions are concerned, the Commonwealth is bound by State and Territory civil liability legislation, so long as there is no inconsistency with Commonwealth legislation that would attract the operation of s 109 of the Commonwealth Constitution.¹⁰⁴ Even if the State civil liability legislation is held not to apply to the Crown in right of the Commonwealth, general negligence principles at common law will still apply.¹⁰⁵

A duty of care cannot arise in relation to acts and omissions that reflect the policy-making involved in the exercise of statutory discretions.¹⁰⁶ Whilst the grounds of judicial review of administrative action have ebbed and flowed, there has been one constant—it is not the function of the judicial review court to determine the merits of the exercise of an administrative power.¹⁰⁷ The court is limited to deciding whether that exercise was lawful, and it remains lawful even if the court thinks that it would have been better exercised in another way.¹⁰⁸ Nevertheless, unlike budgetary allocations and the constraints which they entail in terms of the allocation of resources, the courts may be called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.¹⁰⁹

Consequently, a public authority or governmental body which exercises statutory powers may place itself in a relationship to others which imports a common law duty to take care.¹¹⁰ For example, the decision whether or not to release certain information, in exercise of a statutory power, would be a policy decision, and cannot as such be subject to a duty of care. However, a duty of care may still arise where operational effect is given to the policy decisions by making information available to the public. Here, a duty of care requiring the government agency to take reasonable steps to ensure the reasonable accuracy of the information may be held to arise.

While a discretionary exercise of powers may involve a combination of policy and operational decisions, “when a duty of care is found to exist, a failure to exercise a statutory power said to be relevant to the cause of negligence in the operational sense is not to be excused merely because the ultimate decision to exercise the power may be classed as a policy one.”¹¹¹ Therefore, the fact that information is released based on an initial policy decision does not preclude a duty of care from arising. However, the fact that information is released by government may have an impact on the applicable standard of care.¹¹²

In summary, where information is pro-actively released online to the public, a relationship of sufficient proximity, which warrants reliance on such information without proper consideration, is unlikely to exist between the government and the user. This is especially so where information is provided free of charge, without any implicit inducement or warranty as to the accuracy of the information.¹¹³ Accordingly, where information is made available online by government to the general public, without expectation of economic profit, a duty of care is not likely to exist.

Simply put, governments are releasing PSI for the benefit of the public. An individual who places undue reliance on the general information provided by a government without proper critical consideration or proper exercise of common sense, and consequently suffers a loss, has not acted reasonably. It should be the individual’s responsibility to obtain professional advice before relying heavily on such information. Likewise, where a professional or skilled individual, or a corporation experienced in the particular field is involved, a reasonable reliance on PSI will be even harder to prove.

It must be kept in mind that the elements of reliance and assumption of responsibility are merely illustrations of principles as applicable to previous cases, which cannot be strictly adhered to and applied in every instance. In the present context, the courts may be reluctant to simply deny a duty of care, allowing the government free range to disseminate information without considering its accuracy. This is especially so in light the High Court’s decision in Brodie v Singleton Shire Council,¹¹⁴ described as signalling ‘a major shift in focus from a duty of care to breach’.¹¹⁵ In that case, factors which were previously relevant to negating the existence of a duty instead became criteria to be considered and evaluated against the court’s conception of reasonableness in the context of the standard of care and breach of that standard.¹¹⁶

Whilst the role of government is to maintain the public good,¹¹⁷ it may be difficult to determine which “public good” outweighs another, for example here, the dissemination of valuable information, or the avoidance of potential mishaps from the use of or reliance upon incorrect information. An appropriate balance has to be struck between the need to encourage the dissemination and reuse of data, and the protection of public users. An unnecessarily conservative approach which suppresses the innovative use and re-use of PSI is contrary to the characteristics of a modern democratic government which should be committed to stimulating economic growth and productivity.

Accordingly, the courts may seek to retain judicial flexibility by imposing a duty of care, but provide the government with some leeway by applying a suitably lower standard of care in the circumstances. This way, the courts are able to respond to novel situations in a way that accords with public policy concerns as to whether the state should compensate certain classes of loss.¹¹⁸

Section 9 of the Civil Liability Act 2003 (Qld)¹²⁰ is relevant to establishing whether a person has breached their duty of care. Section 9(1) states that a person does not breach a duty to take precautions against a risk of harm unless:

Further, section 9(2) specifies that 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):

Although users of PSI may expect a government to ensure the information provided is substantially accurate and that reasonable attempts are made to use error-free procedure,¹²¹ it should be emphasized that the obligation is no more than to use reasonable care in the circumstances. ¹²² Certain information, such as geographic information, is inherently inaccurate.¹²³ Often, they are the end products of a complex accretion of data from a number of different sources.¹²⁴ It is possible for loss or damage to be caused by inherent inaccuracy which would have gone undetected even if the task was carried out competently. As such, a government is not required to ensure that their information is free of error, but rather free of errors which a reasonable public or governmental authority exercising reasonable care in the circumstances would have detected and corrected. Therefore, even if damage is caused by a data error attributable to the government, the action may still fail without the element of fault (i.e. the error was not due to a failure by government to exercise reasonable care). The test is not one of strict liability. In other words, a government is not in breach merely because it releases incorrect information which causes loss to others.

In addition, the courts will take into account the social utility of the activity, i.e. of making PSI openly accessible to the public. If the overall benefit to the community outweighs the harm caused to the individual, it is possible that the injured claimant will not be compensated.¹²⁵ However, this principle is unlikely to be extended as far as to allow the incompetent handling and dissemination of PSI. Again, it comes down to whether the defendant government information provider has exercised reasonable care in the circumstances.

Governments are often in a factually different position to private defendants. The reasonable person, placed in the position of a government would be subject to the statutory and financial constraints which might inhibit its conduct.¹²⁶ Thus the standard applicable to government is what ought a reasonable public or governmental authority to have done in the circumstances.¹²⁷ Courts have accepted that budgetary, political and other constraints are factors to be taken into account in determining the standard of care and whether it has been breached.¹²⁸ This is reflected in s 35 of the Civil Liability Act 2003 (Qld),¹²⁹ which requires consideration of financial and political constrains in determining whether a public authority has breached its duty of care. Thus, if the government lacks the resources necessary to avoid an error, the consequences may be that the failure to do so will not constitute a failure to take reasonable care and therefore no breach will arise.¹³⁰

These statutory and budgetary constraints, combined with the considerations already canvassed in relation to a duty of care—i.e. the information is made available online to the general public “as is” in an unpackaged form by government without expectation of economic profit—means that even if a duty of care is held to exist in the circumstances, the government will be held to a relatively low standard of care. Arguably, the relevant act or omission would be a breach of a duty of care only if no reasonable authority in the defendant government’s position would have behaved in the same way.¹³¹

Provided the government and its agencies or departments, without gross negligence or disregard of the PSI’s accuracy, take reasonable steps and precautions in creating, collecting, analyzing, and disseminating the various and voluminous PSI that is created or held by government departments and agencies, the government is not likely to be in breach of the applicable standard of care.