Civil Liability Reforms in Queensland
Civil Liability Reforms in Queensland
by Jonathan Wain, Barrister
Released June 2003
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
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.
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
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.
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.
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.
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.
OF THE ACT
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.
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:
injury defined under the WorkCover
Queensland Act 1996, except as
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;
injury that is a “dust-related condition” 6,
injury resulting from smoking or other use of or exposure to tobacco
products and smoke7.
are a number of other general provisions relating to the operation of the
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.
to a number of express exceptions9,
the Act is taken to have commenced on 2 December 2002.
OF THE ACT
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.
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.
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.
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
risk was foreseeable (ie it is a risk of which the person knew or ought
reasonably to have known); and
risk was not insignificant; and
the circumstances, a reasonable person would have taken the precautions.
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:
probability that the harm would occur if care were not taken;
likely seriousness of the harm;
burden of taking precautions to avoid the risk of harm;
social utility of the activity that creates the harm.
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.
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.
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.
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.
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:
the breach of duty was a necessary condition of the occurrence of the harm
it is appropriate for the scope of the liability of the person in breach to
extend to the harm so caused (“scope of liability”).
regards to “factual causation”, the Act provides that13:
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.
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.
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.
Act confirms that the plaintiff is to bear the onus of proving any fact that
relates to the issue of causation15.
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:
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.
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.
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.
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.
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:
plaintiff has requested advice or information about the risk from the
defendant is required by written law to warn the plaintiff of the risk; or
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.
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.
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
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.
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:
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;
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
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:
professional opinion cannot be relied on if the Court considers that the
opinion is irrational or contrary to a written law;
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;
professional opinion does not have to be universally accepted to be
considered widely accepted.
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
For this purpose:
standard of care required of the person who suffered harm is that of a
reasonable person in the position of the person harmed; and
matter is to be decided on the basis of what the person knew or ought
reasonably to have known at the time30.
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.
of Public Safety
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:
person who is injured, apparently injured or at risk of injury; and
person who is suffering from or apparently suffering from an illness.
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
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
first aid or other assistance is given in circumstances of emergency; and
act is done or omitted in good faith and without reckless disregard for the
safety of the person in distress or someone else.
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.
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
Act provides certain principles relating to proportionate liability which
include the following:
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.
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
a general rule, the liability of each defendant is several only and not
joint except as otherwise provided by the Act37.
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:
defendants formed a common intention to commit an intentional tort, and
actively took part in the commission of the tort38.
defendant against whom damages are awarded acted as agent for the other
Act also provides40
that a defendant (the “first defendant”) is also jointly and severally
liable for damages awarded against another defendant if
of the other defendant’s action, the plaintiff suffered loss; and
plaintiff engaged the first defendant to provide professional advice to
prevent the loss; and
plaintiff relied on the advice.
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.
OF PUBLIC AND OTHER AUTHORITIES AND VOLUNTEERS
and Other Authorities
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:
functions of the authority are limited by financial and other resources;
general allocation of financial or other resources by the authority is not
open to challenge;
functions required to be exercised by the authority are to be decided by
reference to broad range of its activities;
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.
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.
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.
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
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.
FROM CLAIMING DAMAGES BECAUSE OF PARTICULAR BEHAVIOUR
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
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.
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.
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.
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.
OF DAMAGES FOR PERSONAL INJURY
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.
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:
unlawful, intentional act done with intent to cause personal injury; or
unlawful sexual assault or other unlawful sexual misconduct. 65
requiring mitigation of damages
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
have now been relocated to the Act.
for loss of earnings or earning capacity
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.
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.
for loss of superannuation entitlements
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
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
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.
by Court of injury scale
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.
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.
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.
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.
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.
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.
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 Act84.
see Parliamentary Explanatory Notes to Civil
Liability Bill 2003
see s.5(a) and example provided
term is defined in the Second Schedule to include at least 14 different
ss.11(2) and 11(3)
see for example Gent-Diver v Neville (1953)
ss.17 & 19
G.Williams, Joint Torts and Contributory
Negligence (1951), 353-4: J. G. Fleming, The Law of
Torts, 9th edn (1998), 466
Wynbergen v Hoyts Corporation Pty Limited
(1997) 149 ALR 25
at s.26. This
section relocates s.71 of the Personal Injuries Proceedings Act 2002
s.30(3)(b); see also s 30
(2001) 206 CLR 512
s.39; see s.38 for definitions of “community
work” and “volunteer”
see ss.43 & 44
see s.45(2) & (3)
s.45 & (5)
see s.47(3) &
s.48(1) & (2)
Personal Injuries Proceedings Act 2002,
ss.26 & 49
see Second Schedule
see ss.57, 58, 59 of the Act and ss.52, 53, 54 of
the Personal Injuries Proceedings Act
see s.60 of the Act and s.55 Personal Injuries
see s.62(f) and subsections (a) to (n) generally
see s.68 to s.73
see s.79 to s.110