Quick questions on The tort of negligence and the duty of care: QCE Legal Studies

A plaintiff in a negligence action must prove three elements on the balance of probabilities.

Contributory negligence. Reduces the plaintiff's damages in proportion to their own fault (Civil Liability Act 2003 (Qld) Part 1 Division 3 and the Law Reform Act 1995 (Qld) s 10).

The Civil Liability Act 2003 (Qld) was enacted following the Review of the Law of Negligence Final Report (Ipp Report, September 2002), which recommended reforms in response to the public liability insurance crisis. Similar Acts were passed in every Australian state and territory (e.g. the Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic) Part VBA as amended; Civil Liability Act 2002 (WA)).

The Civil Liability Act 2003 (Qld) Part 3 governs damages for personal injury. It caps general damages and imposes calculation rules for past and future economic loss. The Workers' Compensation and Rehabilitation Act 2003 (Qld) sets up a separate scheme for workplace injuries.

Romeo v Conservation Commission (NT) (1998) 192 CLR 431. The defendant was not liable for an intoxicated plaintiff falling from a coastal cliff lookout; the risk was obvious and reasonable precautions had been taken.

The duty arises where it is reasonably foreseeable that the defendant's conduct could cause harm to a person in the plaintiff's position. The foundational case is Donoghue v Stevenson [1932] AC 562 (UK), in which the House of Lords articulated the "neighbour principle": you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. The principle was received into Australian law and is the basis of the modern duty.

The defendant failed to take the precautions that a reasonable person would have taken. Section 9 of the Civil Liability Act 2003 (Qld) codifies the test:

Causation has two elements under s 11 of the Civil Liability Act 2003 (Qld):

Reduces the plaintiff's damages in proportion to their own fault (Civil Liability Act 2003 (Qld) Part 1 Division 3 and the Law Reform Act 1995 (Qld) s 10).

Where the plaintiff knew of and accepted the obvious risk. Section 13 of the Civil Liability Act 2003 (Qld) creates a presumption of awareness for obvious risks.

The defendant is not liable for harm from an inherent risk of an activity (s 16).

The defendant was not liable for an intoxicated plaintiff falling from a coastal cliff lookout; the risk was obvious and reasonable precautions had been taken.

The defendant was not liable for failing to warn of the risk of diving into shallow water; the risk was obvious and there was no duty to warn.

The High Court applied the modern factual causation test (the "but for" test refined by the statutory reforms) to a slip-and-fall claim.