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Civil Liability Reforms in Queensland

by Jonathan Wain, Barrister

Released June 2003

INTRODUCTION

On 9 April 2003 the Civil Liability Act 2003 (“the Act”) became law in Queensland.  This paper considers the scope of the Act and certain changes to the law that it has implemented.

The aim of legislation is “to reform the law of civil liability for negligent acts and for other purposes” and, in so doing, to further facilitate the ongoing affordability of liability insurance¹.  The Act contains some fundamental changes to the law of negligence and also certain provisions concerned with damages for personal injury.

BACKGROUND

Over the last 18 months major problems have arisen over the availability and affordability of public liability insurance.  In particular, insurance premiums have increased significantly for professional groups, including doctors, accountants and engineers.  In the case of doctors, the situation was worsened by the failure in 2002 of United Medical Protection (UMP), the largest medical insurance provider in Queensland. 

As a result of these matters, the government has come under increased pressure to address the problem of unsustainable awards of damages in personal injury cases and the burgeoning costs of claims.

The first stage of law reforms designed to address these problems and to ensure more affordable premiums saw the passing in July 2002 of the Personal Injuries Proceedings Act 2002.  This Act contains a range of measures, including pre- restrictions on legal advertising, bans on jury trials, caps on economic loss and pre-court procedures designed to facilitate speedy resolutions of claims. 

In May 2002, following on the heels of the changes that were implemented in the Personal Injuries Proceedings Act 2002, the Commonwealth, States and Territory Governments jointly agreed to appoint a panel to examine and review the law of negligence.  The panel was chaired by the Honourable Justice David Ipp of the Supreme Court of New South Wales and comprised four other members. 

On 2 October 2002 the panel delivered the Review of the Law of Negligence Final Report (known as “the Ipp Report”).  The report contained 61 recommendations that addressed the panel’s terms of reference including aspects of negligence generally.

On 5 December 2002 a consultation draft of the Civil Liability Bill was tabled in Parliament.  The legislation in its final form implements relevant recommendations of the Ipp Report and includes provisions modeled on the New South Wales Civil Liability Amendment (Personal Responsibility) Act 2002.

APPLICATION OF THE ACT

The Act applies to any civil claim for damages for harm².  The term “claim” is widely defined to mean a claim for damages based on a liability for personal injury, damage to property or economic loss.  That liability may be based in tort or contract or in another form of action, including breach of statutory duty³.  The term “harm” is expressly defined by the Act to include all possible types of loss, including personal injury, damage to property and economic loss⁴. 

The application of the Act is subject to certain express exclusions.  The Act does not apply in relation to any civil claim for damages for personal injury if the harm is or includes:

• an injury defined under the WorkCover Queensland Act 1996, except as expressly stated⁵.  This exclusion results in liability for those injuries in which employment is likely to be a significant factor being decided in accordance with the law as current before the commencement of the Act;

• an injury that is a “dust-related condition” ⁶,

• an injury resulting from smoking or other use of or exposure to tobacco products and smoke⁷.

• There are a number of other general provisions relating to the operation of the Act⁸.  In particular, the Act does not create or confer any cause of civil action for the recovery of damages, and is not a codification of the law relating to civil claims for damages for harm.

• Subject to a number of express exceptions⁹, the Act is taken to have commenced on 2 December 2002.

STRUCTURE OF THE ACT

Outside of preliminary and miscellaneous matters, the Act effectively deals with two main overall topics.  The first of these topics is the law relating to civil liability for harm.  The second is the assessment of damages for personal injury.

The provisions of the Act concerned with civil liability for harm are in turn divided into four parts, being breach of duty, proportionate liability, liability of public and other authorities, and exclusion from claiming damages because of certain behaviour. 

BREACH OF DUTY

The Act deals with breach of duty by treatment of a number of related issues, being general standard of care, causation, assumption of risk, dangerous recreational activities, duty of professionals, contributory negligence and public safety. 

Standard of Care

The Act contains what is to a large extent a restatement or clarification of the law concerning standard of care, tying together issues of foreseeability of harm with the nature of precautions a reasonable person should take to avoid the harm eventuating to another person.  In this regard, the Act provides¹⁰ that a person does not breach a duty to take precautions against a risk of harm unless:

• the risk was foreseeable (ie it is a risk of which the person knew or ought reasonably to have known); and

• the risk was not insignificant; and

• in the circumstances, a reasonable person would have taken the precautions.

The Act also lists certain factors (not exclusive to any other relevant circumstance in a case) that a court is to consider in deciding whether a reasonable person would have taken precautions against a risk of harm¹¹.  These factors are:

• the probability that the harm would occur if care were not taken;

• the likely seriousness of the harm;

• the burden of taking precautions to avoid the risk of harm;

• the social utility of the activity that creates the harm.

The Act provides that, in a proceeding relating to liability for breach of duty happening on or after 2 December 2002, certain principles relating to standard of care are also to apply¹².  These are:

1. First, the risk of injury is not to be considered in abstract.  It must be considered as part of all similar risks of harm to which a reasonable response must be made.

2. Secondly, the mere fact that a different way of responding to the risk exists does not alone create liability or affect any existing liability.  It is for the plaintiff to prove that the method used was an unreasonable response in all the circumstances, including the existence of the different method.

3. Finally, the fact that a person subsequent to an incident takes steps to prevent similar harm occurring, does not of itself create liability or affect an existing liability.  Such action does not constitute an admission of liability.

Causation

The Act adopts the two-pronged test of causation.  The first aspect of the test concerns the factual question of whether the allegedly negligent conduct played a part in bringing about the harm in question.  The second aspect is the normative question of whether, in any event, the defendant ought to be held liable to pay damages for that harm.  In accordance with this analysis, section 11 provides that the question of causation requires consideration of the facts of a case in two ways:

• whether the breach of duty was a necessary condition of the occurrence of the harm (“factual causation”);

• whether it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (“scope of liability”).

With regards to “factual causation”, the Act provides that¹³:

1. It is relevant to decide what the person who suffered harm would have done if the person who was in breach had not been in breach.  This matter is to be decided by the Court subjectively in light of all relevant circumstances.  In this regard, any statement made by the person after suffering the harm about what he or she would have done is inadmissible except insofar as it is against his or her interest.

2. In cases where facts are so unusual or extraordinary that, while factual causation cannot be found, a breach of duty nevertheless exists, the Court may consider that, in all the circumstances, the person should nevertheless be held responsible.

On the matter of “scope of liability”, the Court is to consider objectively (along with other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty¹⁴.

The Act confirms that the plaintiff is to bear the onus of proving any fact that relates to the issue of causation¹⁵. 

Assumption of Risk

Prior to the introduction of the Act, the defence of assumption of risk had become more or less defunct, largely overtaken by the introduction of apportionment for contributory negligence.  The defence also faced a number of difficulties: for example, in order to establish the defence, it was not enough that the plaintiff ought to have known of the risk; the plaintiff had to have been actually aware of the risk¹⁶.  A number of these difficulties are addressed by the Act, which brings about several of changes in the law to encourage greater use of the assumption of risk defence.  In summary, the changes are:

1. The burden of proof on the issue of awareness of risk in relation to obvious risks is reversed.  It is now presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person can prove, on the balance or probabilities, that he or she was actually not aware of the risk¹⁷.

2. The test of whether a person was aware of a risk is now whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence¹⁸.

The Act defines the term “obvious risk” as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the person who suffers harm.  An “obvious risk” includes a risk that is patent or a matter of common knowledge, and a risk that only has a low probability of occurring and is inconspicuous¹⁹. 

The Act expressly declares that, for the avoidance of doubt, a risk from a thing (including a living thing) is not an “obvious risk” if the risk is created because of a failure to operate, replace, repair or care for the thing, unless the failure itself is an obvious risk.  An example provided in the Act is that a go-cart that appears to be in good condition may create a risk to a user that is not an “obvious risk” if its frame has been damaged or cracked in a way that is not obvious²⁰.

The Act provides that a defendant does not have a duty to warn a plaintiff of an “obvious risk” to the plaintiff²¹.  There are a number of stated exceptions to this general rule²², but even the exceptions do not give rise to a presumption of a duty to warn.  The exceptions are where:

• the plaintiff has requested advice or information about the risk from the defendant; or

• the defendant is required by written law to warn the plaintiff of the risk; or

• the defendant is a professional, other than a doctor, and the risk is a risk of death or of personal injury to the plaintiff from the provision of the professional service by the defendant.

The Act provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk, which is defined to be a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill²³.

Dangerous recreational activities

The Act provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.  This applies whether or not the person suffering harm was aware of the risk²⁴.   A “dangerous recreational activity” is defined to mean “an activity engaged in for enjoyment, relaxation or leisure that involves a significant risk of a physical harm to a person” ²⁵.

Duty of Professionals

The Act contains two major provisions concerning the standard of care required of a professional, expressly defined to mean a person practicing a profession.  Section 21 of the Act is concerned solely with doctors and provides that a doctor continues to have a duty to advise a patient of information relevant to any risk of personal injury.  It is immaterial whether the patient requests the information.  However, the doctor does not breach the duty unless the doctor fails to give the patient information:

• that a reasonable person in the patient’s position would require in order to make a reasonably informed decision about whether to undergo the treatment or follow the advice;

• that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice²⁶.

As to the standard of care to be for professionals generally, the standard by which the conduct of a professional is to be assessed is conduct accepted by peer professional opinion as competent.  The conduct must be “widely accepted by a significant number of respected practitioners in the field as competent professional practice” ²⁷.  In this regard:

• peer professional opinion cannot be relied on if the Court considers that the opinion is irrational or contrary to a written law;

• it does not matter if there are differing peer professional opinions that are widely accepted.  This does not prevent any one of the opinions from being relied upon;

• peer professional opinion does not have to be universally accepted to be considered widely accepted.

Contributory Negligence

Previously, there was a common view held that the standard of care applied by the courts to contributory negligence was lower than that applied to negligence²⁸.  The Act addresses this issue and provides that the same principles contained in the Act concerning breach of duty apply equally in deciding whether the person who suffered harm has been guilty of contributory negligence²⁹.  For this purpose:

• the standard of care required of the person who suffered harm is that of a reasonable person in the position of the person harmed; and

• the matter is to be decided on the basis of what the person knew or ought reasonably to have known at the time³⁰.

Before the Act, the High Court had held that reduction of a plaintiff’s damages of 100 per cent as a result of contributory negligence was not permissible³¹.  The Act changes the law in this regard and provides that, in deciding the extent of a reduction of damages by reason of contributory negligence, a Court may in fact decide a reduction of 100%, if it considers it just and equitable to do so³².

Enhancement of Public Safety

The Act contains certain provisions relating to breach of duty by a person for an act done or omitted in assisting a person in distress.  A person in distress is defined to mean:

• a person who is injured, apparently injured or at risk of injury; and

• a person who is suffering from or apparently suffering from an illness.

The Act provides³³ that liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other assistance to a person in distress if:

• the first aid or assistance is given by the person while performing duties to enhance public safety for an entity required under a regulation to provide services to enhance public safety; and

• the first aid or other assistance is given in circumstances of emergency; and

• the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

The Act further expands this indemnity to those organisations for which a volunteer is performing duties³⁴.  This indemnity only extends to those situations where the organisation is involved, through its volunteer, in the provision of first aid or similar assistance and is acting in good faith.

PROPORTIONATE LIABILITY

The part of the Act that concerns proportionate liability applies only to claims for economic loss or damage to property where damages exceed $500,000.  It does not apply at all to a claim for breach of duty resulting in personal injury.

The Act provides certain principles relating to proportionate liability which include the following:

• If there is more than one defendant in a proceeding, each defendant is liable only for the proportion of loss that is assessed by the Court as being the responsibility of that person.  This liability is the amount decided by the Court to be just and equitable having regard to the extent of the defendant’s responsibility for the harm³⁵.

• In apportioning liability between defendants, the Court cannot take into account the comparative liability of a party not joined in the proceedings and must apportion damages between parties to the action, subject to liability³⁶:

• As a general rule, the liability of each defendant is several only and not joint except as otherwise provided by the Act³⁷.

The Act does provide for certain circumstances in which the liability of defendants is enlarged.  A defendant in a proceeding is jointly and severally liable for the total of the damages for loss awarded against another defendant if:

• the defendants formed a common intention to commit an intentional tort, and actively took part in the commission of the tort³⁸.

• the defendant against whom damages are awarded acted as agent for the other defendant³⁹.

The Act also provides⁴⁰ that a defendant (the “first defendant”) is also jointly and severally liable for damages awarded against another defendant if

• because of the other defendant’s action, the plaintiff suffered loss; and

• the plaintiff engaged the first defendant to provide professional advice to prevent the loss; and

• the plaintiff relied on the advice. 

The Act provides that a defendant in a proceeding against whom a finding of fraud is made or who contravenes a “prescribed provision” is jointly and severally liable for the damages awarded against any other defendant in the proceeding⁴¹.  The term “prescribed provision” is defined to mean s38 Fair Trading Act 1989 or the equivalent s52 Trade Practices Act 1974 (Cth) ⁴².

LIABILITY OF PUBLIC AND OTHER AUTHORITIES AND VOLUNTEERS

Public and Other Authorities

The Act provides certain principles that are to apply in deciding whether a public or other authority has breached a duty of care.  These principles are⁴³:

• the functions of the authority are limited by financial and other resources;

• the general allocation of financial or other resources by the authority is not open to challenge;

• the functions required to be exercised by the authority are to be decided by reference to broad range of its activities;

• the authority may rely on evidence of its compliance with its general procedures and any applicable standards as evidence of the proper exercise of its functions in the matter to which the proceeding relates.

The Act further provides that for the purposes of a proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was, in the circumstances, so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its function⁴⁴.

The Act reinstates the defence of non-feasance for road authorities except in circumstances where the authority has knowledge of the specific risk prior to the accident. The effect is that a highway authority will be able to make use of the protections and immunities that it was considered to have before the judgment of the High Court in Brodie v Singleton Shire Council⁴⁵.  The Act now provides that a public authority will not be liable for failure to repair or maintain a road⁴⁶.  However, this provision does not apply if, at the time of the alleged failure, the authority had knowledge of the particular risk that resulted in the harm⁴⁷.  In such circumstances, the protection offered by the Act will not apply and the authority will be subject to the law as otherwise modified by the Act.

Volunteers

The Act provides certain protection for volunteers and stipulates that a volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work organised by a community organisation or as an officeholder of that community organisation. ⁴⁸

The indemnity does not extend to situations where the volunteer is engaged in a criminal act⁴⁹, where the volunteer is intoxicated and fails to exercise due care and skill when doing the work⁵⁰, or where the volunteer is acting outside the scope of the activities of the community organisation or contrary to the instructions of the organisation⁵¹.  In addition, the indemnity does not apply if a policy of insurance is required to be held by law in relation to the volunteer work or in situations where a policy of compulsory third party motor vehicle insurance applies to cover the liability⁵².

EXCLUSION FROM CLAIMING DAMAGES BECAUSE OF PARTICULAR BEHAVIOUR

Criminal Behaviour

The Act excludes persons from claiming damages if the injury or loss was suffered while engaged in an activity which, on the balance of probabilities, is an indictable offence⁵³.  The court may still award damages in such cases if satisfied that in the circumstances the exclusion would be harsh or unjust.  If the court decides to award damages then a minimum reduction of 25% is to apply⁵⁴.  The exclusion does not require the conduct of a person to have been considered by a criminal court or otherwise⁵⁵.

Intoxication

The Act sets out certain principles that apply in assessing the duty of care owed to persons who suffer personal injury while intoxicated.  In deciding whether a duty of care exists and the standard of care, the fact that a person is intoxicated is irrelevant⁵⁶.  The provision does not apply if the conduct alleged to give rise to a breach of duty of care occurs on licensed premises⁵⁷.

The Act establishes a presumption that, if an injured person was intoxicated at the time of the injury, the person was contributorily negligent⁵⁸.  The presumption may be rebutted if the intoxication was not a factor in the occurrence of the injury or the intoxication was not self-induced.  If the presumption is not rebutted, the Court is required to reduce any damages assessed by a minimum of 25%⁵⁹.  If the injury is suffered as a result of the injured person driving a motor vehicle, the minimum reduction of damages is increased to 50% when the person is found either to have a blood alcohol level of 150 mg or more of alcohol in 100 ml of blood or, in the court’s opinion, was incapable of exercising actual control of the vehicle⁶⁰.

Where the injured person at the time of injury was over the age of 16 years, and relied upon the care and skill of an intoxicated person, and was aware or ought reasonably to have been aware of the intoxication, then in such circumstances, the injured person is presumed to be contributorily negligent⁶¹.  The presumption may only be rebutted if the injured person establishes, on the balance of probabilities, that the defendant’s intoxication did not contribute to the breach of duty, or that the injured person could not reasonably be expected to have avoided relying on the defendant’s care and skill⁶².  If the presumption is not rebutted, any award of damages is to be reduced by a minimum of 25%⁶³.  If the case involves a motor vehicle accident in which the injured person was a passenger in the car and the intoxicated defendant was the driver, then the minimum reduction of damages may increase to 50%⁶⁴.

ASSESSMENT OF DAMAGES FOR PERSONAL INJURY

The Chapter of the Act that deals with assessment of damages for personal injury has no application at all to damages for economic loss or for property damage.  

Exemplary damages

The Act provides that a court cannot award exemplary, punitive or aggravated damages in relation to a claim for personal injury damages, except in cases where the act that caused the personal injury was:

• an unlawful, intentional act done with intent to cause personal injury; or

• an unlawful sexual assault or other unlawful sexual misconduct. ⁶⁵

Notice requiring mitigation of damages

If a defendant is not satisfied with the action taken by a plaintiff to mitigate damages, the defendant may give the plaintiff written notice suggesting specified action the plaintiff should take to mitigate damages.  The notice may suggest such things as specified medical treatment, steps to obtain employment, steps for rehabilitation.  The Court is able to consider the terms of such notice in deciding whether the plaintiff took reasonable steps to mitigate damages.  If the plaintiff fails to take appropriate steps of mitigation, the Court is able to reduce the award of damages accordingly⁶⁶.  These provisions of the Act were formally contained in of the Personal Injuries Proceedings Act 2002⁶⁷ but have now been relocated to the Act.

Damages for loss of earnings or earning capacity

The Act provides that damages for loss of earnings per week of any injured person are to be limited to an amount of three times the average weekly earnings⁶⁸.  The term “average weekly earnings” is defined⁶⁹. 

In circumstances where a court is unable to precisely calculate damages for loss of earnings by a reference to a defined weekly loss, the Court may only award damages if it is satisfied that the person has suffered or will suffer loss as a result of the injury.  In making its assessment, the Court must have regard to the person’s age, work history and other matters, and must state the assumptions on which the award is based and the methodology used to arrive at the award.  The amount of damages awarded globally cannot exceed three times average weekly earnings per week⁷⁰.

Damages for loss of superannuation entitlements

The Act provides that damages for loss of superannuation entitlements, if awarded, are limited to the amount of employer contributions.  The maximum payable is the minimum percentage contribution required by law for a specific person applied to the damages awarded for loss of earnings⁷¹. 

In order to bring all matters relating to assessment of personal injury damages under the one Act, several provisions from the Personal Injuries Proceedings Act 2002 relating to damages for future loss, damages for loss of consortium and damages for gratuitous services have been relocated to the Act ⁷².  The provisions of the Personal Injuries Proceedings Act  2002 relating to the award of interest are also relocated to the Act⁷³.  In addition the Act provides that interest on general damages cannot be awarded⁷⁴.

Assessment by Court of injury scale

The Act provides a new method for the assessment of general damages for personal injury.  The method involves a 100-point scale upon which the court must assess the degree of injury⁷⁵.  In order to assess where an injury lies on the injury scale, the court is to consider the injury scale values prescribed under regulation and the injury scale values attributed to similar injuries and previous proceedings.  The Act further provides the formula for the calculation of general damages subsequent to assessment of the injury scale value by a Court⁷⁶.  By way of example, if the scale value of an injury is assessed as 30 or less but more than 25, general damages are to be calculated by adding to $35,000 an amount calculated by multiplying the number by which the scale value exceeds 25 by $2,000⁷⁷.

Structured Settlements

The Act provides certain provisions relating to the making of consent orders for structured settlements.  These provisions replace section 61 of the Personal Injuries Proceedings Act 2002.  The term “structured settlement” is defined⁷⁸.

The Act requires a court, prior to making any award of damages for future economic loss, future medical expenses or future general expenses that exceed a total of $100,000, to first advise the parties to the action of the intended award.  The Court is required to list the amount of each head of damage proposed⁷⁹.

The Act provides the Court with power to make an order that details the terms of an agreed structured settlement, even though the payment of damages is not in the form of a lump sum award of damages⁸⁰.  The result of such an order is that it will be enforceable under the rules of Court.

There is an obligation imposed by the Act on lawyers to advise their client of the ability to negotiate a structured settlement in circumstances where their client is the plaintiff of a personal injuries action.  The advice must extend to the desirability of obtaining independent financial advice about structured settlement, as opposed to lump sum settlement, of a claim⁸¹.

On the question of costs, the Act provides that an offer of a structured settlement will be considered by the Court in relation to any costs orders upon final hearing of a claim.  The Court is to consider whether, in accordance with the Uniform Civil Procedure Rules 1999, any judgment was not more favourable than the structured offer to settle, having regard to any costs to the defendant in the making of the offer⁸².

MISCELLANEOUS

It should be noted that the provisions in the Personal Injuries Proceedings Act 2002 relating to expressions of regret and jury trials have been relocated to the Act⁸³.  The Act also lists and provides for a considerable number of Amendments to the Personal Injuries Proceedings Act^84.

FOOTNOTES

1. see Parliamentary Explanatory Notes to Civil Liability Bill 2003

2. s.4(1)

3. Second Schedule

4. Idem.

5. see s.5(a) and example provided

6. s.5(b).  The term is defined in the Second Schedule to include at least 14 different diseases.

7. s.5(c)

8. see s.7

9. s.2(2)&(3)

10. at s.9

11. see s.9(2)

12. s.10

13. ss.11(2) and 11(3)

14. s.11

15. s.12

16. see for example Gent-Diver v Neville (1953) Qd S.R.1

17. s.14(1)

18. s.14(2)

19. s.13

20. s.13(5)

21. s.15(1)

22. s.15(2)

23. s.16

24. ss.17 & 19

25. s.18

26. s.21(1)

27. s.22(1)

28. G.Williams, Joint Torts and Contributory Negligence (1951), 353-4: J. G. Fleming, The Law of  Torts, 9^th edn (1998), 466

29. s.23

30. s.23(2)

31. Wynbergen v Hoyts Corporation Pty Limited (1997) 149 ALR 25

32. s.24

33. at s.26.  This section relocates s.71 of the Personal Injuries Proceedings Act 2002

34. s.27

35. s.30(2)

36. s.30(3)(b); see also s 30

37. s.30(5)

38. s.31(1)

39. s.31(2)

40. at s.31(3)

41. s.31

42. s.31(6)

43. see s.35

44. s.36(2)

45. (2001) 206 CLR 512

46. s.37(1)

47. s.37(2)

48. s.39; see s.38 for definitions of “community work” and “volunteer”

49. s.40

50. s.41

51. s.42

52. see ss.43 & 44

53. s.45

54. see s.45(2) & (3)

55. s.45 & (5)

56. s.46(1)

57. s.46(2)

58. s.47

59. see s.47(3) &

60. s.47(5)

61. s.48(1) & (2)

62. s.48(3)

63. s.48

64. see s.49(1)

65. s.52

66. s.53

67. Personal Injuries Proceedings Act 2002, ss.26 & 49

68. s.54

69. see Second Schedule

70. s.55

71. s.56

72. see ss.57, 58, 59 of the Act and ss.52, 53, 54 of the Personal Injuries Proceedings Act

73. see s.60 of the Act and s.55 Personal Injuries Proceedings Act

74. s.60(1)

75. s.61

76. s.62

77. see s.62(f) and subsections (a) to (n) generally

78. s.63

79. see s.64

80. s.65

81. s.66

82. s.67

83. see s.68 to s.73 

84. see s.79 to s.110

STUDY POINTS

1. To what claims does the Queensland civil liability legislation apply?  What claims are excluded?

2. What general changes have been made with regard to the formulation of the standard of care in each case?

3. What are the new tests of causation?

4. How have the rules on voluntary assumption of risk changed?

5. What is an obvious risk and what is the significance of an obvious risk in claims for negligence?

6. What disclosures must a doctor make to a patient to protect from claims?

7. What role does peer professional opinion play in determining the standard of care in medical negligence cases?

8. How have the rules on contributory negligence changed?

9. What hurdles must you overcome in order to make out a successful claim against a public authority?

10. Can you still claim if you were drunk when the injury occurred?  What limitations apply?

11. What changes have been made to the award of damages in negligence cases?