CIVIL LIABILITY ACT 2003 Qld and The Changing Law of Negligence

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CIVIL LIABILITY ACT 2003 (Qld) and The Changing
Law of Negligence

• Paul Telford
• May 2003

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• South Tweed Heads Rugby League Football Club
  Limited v Cole (2002)
• the voluntary act of drinking until
  intoxicated.(is a).. deliberate act for which
  that person should carry personal responsibility
  in law

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• Queensland
• Personal Injuries Proceedings Act 2002
• Civil Liability Act 2003
• New South Wales
• Civil Liability Act 2002
• Civil Liability Amendment (Personal
  Responsibility) Act 2002
• South Australia
• Law Reform (Contributory Negligence and
  Apportionment of Liability) Act 2001
• Victoria
• Wrongs and Other Acts (Public Liability Insurance
  Reform) Act 2002
• Western Australia
• Civil Liability Act 2002
• Tasmania
• Civil Liability Act 2002

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Application

• 9 April 2003 CLA received Assent
• 2 December 2002 Majority of provisions
  commenced, except
• Sections concerning the enhancement of public
  safety, criminal behaviour, intoxication,
  exemplary damages, structure settlements,
  exclusion of jury trials and expressions of
  regret
• proportionate liability provisions which will
  take effect on a date to be proclaimed

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• What Doesnt the CLA do?
• Create any new causes of action
• Codify the law relating to civil claims
• Apply to WorkCover injuries.

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• (1) A person does not breach a duty to take
  precautions against a risk of harm unless
• (a) the risk was foreseeable and
• (b) the risk was not insignificant and
• (c) in the circumstances, a reasonable person in
  the position of the person would have taken the
  precautions.
• (2) 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)
• (a) the probability that the harm would occur if
  care were not taken
• (b) the likely seriousness of the harm
• (c) the burden of taking precautions to avoid
  the risk of harm
• (d) the social utility of the activity that
  creates the risk of harm.

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Professional Responsibility

• No liability for professionals acting in manner
  widely accepted in Australia by peer professional
  opinion as competent professional practice.
• Division does not apply to any duty to warn of
  risk of personal injury/death from provision of
  professional service.
• Cf Bolam
• Rogers v. Whitaker

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Assumption of Obvious Risk

• Obvious risk means a risk that is obvious to a
  reasonable person
• includes patent/common knowledge risks.
• obvious even if low probability.
• obvious even if not prominent,conspicuous, or
  physically observable.
• Onus of proof shifts when volenti is pleaded.
• No duty to warn of obvious risks.
• No liability arising from inherent risk.
• Cf Woods v. Multisport / Borland v. Makauskas

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Dangerous Recreational Activities

• Defined as an activity engaged in for enjoyment,
  relaxation or leisure that involves a significant
  degree of risk of physical harm to a person
• No liability for combination of obvious risk
• and dangerous recreational activity,
• regardless of whether the plaintiff was aware
• of the risk

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Enhancement of Public Safety
Civil liability does not attach to a person in
relation to an act done or omitted in the course
of rendering first aid or other aid or assistance
to a person in distress if (a) the first aid or
other aid or assistance is given by the person
while performing duties to enhance public safety
for an entity prescribed under a regulation that
provides services to enhance public safety
and (b) the first aid or other aid or
assistance is given in circumstances
of emergency and (c) the act is done or
omitted in good faith and without
reckless disregard for the safety of the person
in distress or someone else.
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GOOD SAMARITANS (PART 8)
A Good Samaritan cannot be held liable in respect
of any act or omission in an emergency when
assisting a person who is apparently injured or
at risk of being injured. The protection from
liability does not apply if 1. The Good
Samaritans act or omission caused the injury
or risk of injury to which he/she is
responding 2. Ability to exercise reasonable
care and skill was significantly impaired by
the influence of alcohol or drugs and failed to
exercise reasonable care and skill in
connection with the act or omission.
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Volunteers

• A volunteer of a community organisation cannot be
  held liable for an act or omission.
• Does not apply if
• Conduct that constitutes an offence.
• Impaired by alcohol or drugs
• Acting outside scope of authority
• Liability required be insured against (CTP)

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Liability of Public Authorities

• Codifies recent NSW Court of Appeal decisions
  relating to negligence and the duty of care owed
  by highway authorities to pedestrians (Burwood
  Council v Burns 2002 NSWCA 343 RTA v McInnes
  2002 NSWCA 210 Richmond Valley Council v
  Standing 2002 NSWCA 359).
• Public Authorities The courts must take into
  account the financial and other resources that
  are reasonably available to the authority for the
  purpose of exercising those functions.
• Road Authorities not liable for harm arising
  from the failure to carry out roadwork, unless at
  the time of the alleged failure the authority had
  actual knowledge of the particular risk the
  materialisation of which resulted in the harm. Cf
  Brodie and Ghantous

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Contributory Negligence

• Borland v. Makauskas QDC 30
• Burns v. BOC Gases WADC 50
• Cook v. Hawes NSWSC 75
• Court may reduce damages by 100.

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Intoxication

• Not necessary to anticipate intoxication.
• No higher standard of care than if was sober.
• 3. Contributory negligence of at least 25 will
  be assumed (or 50 if BAC of 0.15 or greater).

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Recovery by Criminals

• No liability if the Plaintiff was engaged in an
  indictable offence when the harm occurred and
• The illegal conduct materially contributed to the
  risk of harm.
• Criminal proof of indictable offence is not
  necessary.

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Apologies and Expressions of Regret

• Does not constitute an admission of fault or
  liability.
• Not admissible.

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Thank You !