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  • September 13, 2016
  • David Marks
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Law Of Negligence And Negligent Misstatements

Lecture 5 


Law of Negligence and Negligent Misstatements 


  • define a tort and distinguish a tort from a breach of contract.
  • explain the elements that must be proved to make out the tort of negligence.
  • list the circumstances where courts have held that a duty of care is owed by one person to another and when that duty will be regarded as having been breached.
  • explain the defences to negligence.
  • Understand the role of the Civil Liability Act 2003 (Qld) (“CLA”) in the context of negligence
  • outline the other types of liability situations in negligence.
  • explain negligent misstatements and vicarious liability
  1. The Law of Torts

The word tort is taken from the French word meaning “wrong”.

  • A tort is defined as an injury other than a breach of contract, which the law will remedy with damages. A tort consists of an act (or failure to act) by one person causing damage or injury to another person, or to property.
  • Torts v Contract: Torts are different from contractual breaches: contractual rights arise only because the contracting parties have intentionally agreed to perform legal obligations. In contrast, the law of torts protects the general rights of individuals: e.g. rights not to have one’s person, property, economic interests and reputation damaged or injured.

  • Damages in tort are awarded to restore the injured party to the position that he or she occupied before the breach. Damages in contract are awarded to place the injured party in the position that he or she would have occupied had the contract been performed.
  • The remedy claimed under the law of torts: the common law remedy of damages or an equitable remedy, e.g. an injunction.

1.1   Civil Liability Law Reforms


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 Northern Territory, all States and Australian Capital Territory passed civil liability 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.

The CLA makes some changes to the laws of negligence relating to standard of care, 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 (covered in Week 9 lecture). 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 1 lecture 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.

The Act makes life complex for lawyers. Any acts of negligence before 2 December 2002 are covered by the common law/case law. Any negligent act after 2 December 2002 is determined by the CLA.

You will realise from the lectures that the CLA has adopted many principles that are similar to the common law. Thus, case law, which pre-dates the CLA will still provide us with guidance as to how the court will apply the CLA in the future.


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