the tort of negligence, including duty of care, breach, and causation

What this dot point is asking

QCAA wants you to know the elements of the tort of negligence and how Queensland's statute modifies the common law. Expect a 5-7 mark short response.

The answer

The three elements

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

1. The defendant owed the plaintiff a duty of care. 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.

For novel duty cases, the Australian approach is incremental (Sullivan v Moody (2001) 207 CLR 562). The court considers reasonable foreseeability, the relationship between the parties, and policy considerations.

2. The defendant breached the 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:

• a person does not breach a duty unless the risk was foreseeable;
• the risk was not insignificant; and
• in the circumstances, a reasonable person in the position of the person would have taken the precautions.

The court must consider the probability of harm, the likely seriousness of the harm, the burden of taking precautions, and the social utility of the activity (s 9(2)).

3. The breach caused the plaintiff's loss. Causation has two elements under s 11 of the Civil Liability Act 2003 (Qld):

• factual causation. The breach was a necessary condition of the harm (the "but for" test).
• scope of liability. It is appropriate to extend the defendant's liability to the harm.

The damage must also be foreseeable (not too remote).

Defences

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).

Voluntary assumption of risk

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.

Inherent risks

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

The 2002 Ipp Report and reform

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)).

Key reforms across the Acts:

• raising the threshold for breach (foreseeability + significance + reasonable response);
• capping general damages for non-economic loss;
• modifying the test for causation;
• introducing a category of "obvious risks";
• protecting volunteers and Good Samaritans (Civil Liability Act 2003 (Qld) Part 1 Division 5);
• limiting liability for harm from "dangerous recreational activities" (Civil Liability Act 2003 (Qld) Part 1 Division 4).

Damages

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.

Examples

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.

Vairy v Wyong Shire Council (2005) 223 CLR 422

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.

Strong v Woolworths Ltd (2012) 246 CLR 182

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