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Zipser, Ben --- "Editorial: An update on civil liability" [2017] PrecedentAULA 27; (2017) 140 Precedent 2


AN UPDATE ON CIVIL LIABILITY

By Ben Zipser

In 2002 and 2003, concerns emerged about rising professional and public liability insurance premiums. In response, jurisdictions throughout Australia introduced legislation which sought to control or restrict the circumstances in which a person could be found liable for negligence, and the damages they must pay if found liable. The legislation affected all elements of the tort of negligence, including the tests for breach of duty, causation and contributory negligence, and restricted, in a few different ways, the damages to which a successful plaintiff was entitled. Fifteen years on, the civil liability legislation is an important part of the landscape in which negligence claims are litigated and determined in Australia.

This edition of Precedent aims to remind readers of the broad scope of the civil liability legislation, and provides an update on recent developments.

Traditionally, the first two elements of the tort of negligence are the existence of a duty of care, and breach of that duty. Richard Douglas QC addresses the basal elements and proper formulation of the duty content in litigation, which includes the step of establishing breach of duty. His article provides invaluable guidance to practitioners on how to properly plead a duty of care. Another element of the tort of negligence is the establishment of a causal link between the defendant’s breach of duty and loss suffered by the plaintiff. Katie Manning considers causation in two recent court decisions and warns practitioners acting for plaintiffs to keep in mind the issue of causation (and the need to establish the element of causation) when preparing for trial.

For claims against roads authorities by injured plaintiffs, the civil liability legislation restricts the circumstances in which the roads authority may be found liable by establishing a qualified immunity from suit. Carolyn Coventry and James Clohesy review recent court decisions that elucidate the scope and operation of the qualified immunity.

The civil liability legislation also restricts the damages to which a successful plaintiff may be entitled. One restriction, which has been the subject of many court decisions, is the proportionate liability scheme. For causes of action affected by the civil liability legislation, this scheme replaced the rule of solidary liability. Steve McAuley’s article identifies some of the many issues which have arisen in applying proportionate liability, and provides a critical appraisal of the scheme.

By restricting the damages to which a plaintiff may be entitled, many successful plaintiffs do not receive full compensation for their losses. Travis Schultz’s article considers some of the restrictions on damages introduced by the civil liability legislation, as well as the policy question of whether the legislation strikes the right balance between the interests of plaintiffs who seek compensation for loss suffered due to the defendant’s fault and the interests of defendants who pay insurance premiums.

Contributory negligence is a defence to an action for negligence. Christopher Barry QC’s article considers statutory modifications of the common law principles relating to contributory negligence, both under the civil liability legislation and the contributory negligence law reform legislation enacted in most jurisdictions in the mid-20th century.

Complicated issues occasionally arise in considering the intersection between the civil liability legislation and other statutory schemes affecting civil liability. Jeremy Wiltshire examines the intersection between the civil liability legislation and workers compensation legislation where a worker is injured on a journey in the course of their employment or between their home and place of employment. Another intersection occurs between the civil liability legislation and the Australian Consumer Law. Kavita Balendra’s article focuses on circumstances where a recreational service provider, in defending a claim by a plaintiff injured during the recreational activity, seeks to rely on an exclusion clause or waiver in the contract between the plaintiff and recreational service provider.

Philippa Alexander, a costs consultant who regularly writes for Precedent, contributes an informative article on costs in civil liability legislation matters.

This spread of informative articles on civil liability legislation will be of interest to readers of Precedent, and practitioners generally.

Ben Zipser is a Barrister at the Sydney Bar with a broad practice, principally commercial. He co-authored Walmsley et al, Professional Liability in Australia (3rd ed, 2016) which considers many aspects of the civil liability legislation in Australia. Phone (02) 9231 4560 EMAIL bzipser@selbornechambers.com.au.


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