Law Of Torts Negligence
Civil Liability Act 2003 (Qld) - Introduction
Australia has experienced monumental change in the tort of negligence. Following public concern about the costs and availability of liability insurance and the collapse of HIH, one of Australia’s largest insurance companies, the State and Commonwealth governments appointed Justice Ipp, a Supreme Court judge, to review the tort of negligence. The Ipp review made a number of recommendations to change the law. With the exception of NT, all States and Territories enacted legislation which adopted the Ipp review recommendations to varying degrees.
The Queensland government passed the Civil Liability Act 2003 (Qld) (“CLA”) which commenced operation on 2 December 2002. You do not need to know the entire legislation, only the sections which are covered in the lecture. It is beyond the scope of this course to consider all of the civil liability reforms.
From the five key elements of negligence (refer to flowcharts), the CLA affected breach of duty, causation, voluntary assumption of risk, contributory negligence and assessment of damages. The CLA does not affect the common law principles concerning the general duty of care. It is important to note that the CLA is not a “codification” of the laws of negligence. This means that the CLA does not replace all of the existing common law principles of negligence.
Remember from Week 2 that where there is an inconsistency between the common law and statute, statute will override the common law. The CLA overrides most, but not all, of the common law principles relating to negligence. However, you will see in the lecture that the CLA has adopted many principles that are similar to the common law. Thus, case law which predates the CLA (i.e. before 2 December 2002) still provides us with guidance as to how the court will apply the CLA.
Duty of Care
Chapman v Hearse
Facts: A car overturned due to the negligence of its driver, Chapman. A doctor named Cherry went to the assistance of Chapman who had been thrown free from his car and was lying injured on the road. While Dr C was tending to Chapman’s injuries, he was run over and killed by another motor vehicle driven by Hearse. Hearse joined Chapman as a party to the proceedings alleging that Dr C’s death had been caused by Chapman’s original act of negligence in overturning his car.
Held: Chapman owed a duty of care to Dr C. It was not unlikely that a class of persons including Dr C might come to the aid of an injured person on the roadway and suffer injury themselves.
Breach of Duty
Boulton v Stone
Facts: Plaintiff was injured when she was struck by a cricket ball that had been hit out of the Defendant’s cricket ground. The ball had travelled approximately 90 metres and cleared a protective fence which was approximately 17 feet above the level of the cricket pitch.
Held: The D had not breached its duty of care. The fact that only ten balls had been hit out of the ground in the last 30 years made the risk of injury so minimal that the steps taken by the D to avoid the risk were reasonable.
Wyong Shire Council v Shirt
Facts: The Council dug a deep channel in a shallow lake and put up signs by the channel saying “deep water”. The intention of the signs was to show that there was deep water between the signs. The P was paralyses after falling off his skis in shallow water. The P had been under the impression that the signs meant that the water all around him was deep.
Held: The Council was negligent even though the risk of someone misunderstanding the signs was small. The placing of the signs created a risk of injury that was not “far -fetched or fanciful” (i.e. not insignificant).
Soper v Gold Coast City Council
Refer to transcript of the decision in your lecture notes from Week 2. The relevant social utility in this case was the use of a public park.
Causation and Remoteness
State Rail Authority v Wiegold
Facts: Plaintiff, employed by the Defendant as a maintenance linesman, was injured when he fell down a railway embankment. The Plaintiff could not see where he was going because the torch he had been given by the defendant was not working. Following the accident, the P received workers compensation. He began to worry about how he could support his family once his entitlements ran out. His solution was to grow and sell marijuana. P was arrested, convicted and imprisoned. He sued the D alleging that their negligence caused the P’s imprisonment.
Held: The imprisonment was not caused by the defendant’s negligence. The plaintiff could not prove it was more probable than not that the defendant caused the plaintiff to engage in criminal activities.
Wagon Mound (No 1) case