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Mcdonald, Barbara --- "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia" [2005] SydLawRw 22; (2005) 27(3) Sydney Law Review 443

Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia


1. Introduction

With the introduction of various civil liability legislation around the country (hereafter the Civil Liability Acts),[1] tort law in Australia can no longer be regarded as largely a common law field. Tort law must now well and truly grapple with theoretical and practical issues of statutory scope and interpretation that have arisen in many other fields of law[2] where there exists a broad body of legislation as well as fundamental and wide ranging common law principles.

As Professor Harold Luntz has warned,[3] the legislative response to the so-called insurance ‘crisis’ in Australia in 2002 may well prove to have been misguided, ill-informed and ineffective: it merely tinkers with a system which has only a limited capacity to meet its own objectives or those attributed to it[4] and which is clearly ineffective and arbitrary in meeting the broader needs of injured and disabled members of the community. The legislation may also prove to be harsh and unjust in its operation in some circumstances, although much will depend on the way in which it is construed by the courts and on whether they baulk at the idea that the legislature intended to achieve the stated purposes of the legislation — to reduce insurance premiums by reducing liability and to restore ‘personal responsibility’ — at all costs. This article will not comment on the justice or injustice of the provisions of the Civil Liability Acts nor on the persistent failure of government to undergo or resurrect a long overdue bolder and broader reappraisal of the existing compensation systems and of the alternative system in place in our close neighbour New Zealand.[5] Rather, it will consider the place and role of statute law and particularly the Civil Liability Acts in the modern law of torts, against the background of the broad principles of statutory interpretation. It will take the Civil Liability Act (NSW) 2002 (as amended) (hereafter NSW CLA) as a model of the Australian reforms for the purposes of considering the coherence of the law and a range of pertinent questions:

i) Is the legislation a code or a supplement to the common law?
ii) Does the legislation ‘cover the field’ or only deal with some particular mischief, leaving the common law intact?
iii) What room is there for the common law to continue to apply or develop in the light of particular legislative provisions?[6]
iv) To what extent may the development of the common law be affected indirectly by some broader influence of these legislative enactments?

These are not entirely new questions for tort law, as shown by the historical review below, but what is new in Australia and unusual in the common law world is that statute law has encroached into issues at the very heart of the general principles of negligence: the negligence calculus and causation. The continuing relevance of the common law principles and cases in a number of areas is uncertain. In this new order, the courts will have to meet the challenge of restoring some coherence to the law of tort.[7]

No one would dispute the ideal that the law, whether embodied in statute or the common law, should be, if not readily comprehensible by all who have to live by it and apply it, then at least coherent. There is no doubt that the coherence of tort law has been ill-served by the rush to legislate in 2002 and that the legislatures did not use the advantage that legislatures usually have over courts in the process of law reform, that is, to legislate rather than adjudicate: to take the time necessary to give full consideration to the range of fact situations in which a statutory rule may operate and to make express provisions or exceptions for its operation across that range.[8]

Such a deliberate and careful process, although advised by the Chief Justice of New South Wales in his influential speech entitled ‘Negligence: The Last Outpost of the Welfare State’[9] did not happen, with the period from the announcement of the project to passage of the final legislation taking a mere seven months. The first stage of the reforms introducing caps on damages (and costs) at least had precedent in schemes for motor accidents and medical liability claims.[10] But the timetable and process for the second stage was more problematic. The Ipp Panel[11] consulted a number of organisations and individuals and completed its task within the strict and short deadline given it, but after its Report was released on 2 October 2002,[12] there was barely any time for or attempt at consultation on its recommendations. The second, much more substantial, stage of the Civil Liability reforms was enacted in Parliament barely three weeks later.[13]It would seem that the criticism of legislation as ‘hastily and inconsiderately adopted’, referred to by Roscoe Pound in 1908[14] as one of many ways that judges, academics and lawyers try to diminish the validity of statute law, might be well deserved here. However ignoring statute law as apparently was done in the United States in the early 20th Century is not an option for courts and lawyers in the 21st Century.[15]

Paradoxically, while the legislation in New South Wales was introduced in 2002 with the statement that it was the most important reform of the laws of negligence in 70 years[16] (no doubt an allusion to Donoghue v Stevenson in 1932)[17] the legislation does not attempt to change or formulate the general principles for determining the existence of a duty of care. They were the subject of that great case and have proved so difficult for courts to agree upon or define with precision. Arguably the duty of care is the most important factor in determining the scope of negligence liability.[18]

This article will begin with an historical review of legislative intervention into tort law, followed by a brief survey of how the Australian courts’ interpretation of particular tort legislation reflects common questions of statutory interpretation and, perhaps more importantly, the limits of legislative impact and influence upon the common law. Turning then to the NSW CLA, it will proceed with an overview of the act followed by an analysis of the most problematic matters of interpretation. In this context, it will discuss those areas where the statute merely restates the common law and secondly those areas where the NSW CLA purports to regulate or change the common law principles dealing with three areas: the test for breach of duty in negligence, liability for obvious risks generally and in recreational activities; and the principles of causation. In this discussion, the questions set out above will be addressed as they arise, particularly the question as to the continuing relevance of the body of common law case law on a particular issue. The wording of the legislation raises many issues for interpretation by the courts. As the impact of this legislation will depend very much on the way in which ambiguities and uncertainties in its provisions are interpreted and as statutory interpretation now allows or even requires reference to the legislative history and extrinsic materials leading to an enactment, the article will conclude with an appraisal of the background sources relating to the NSW CLA as an aid to its interpretation and a brief general assessment of the continuing role of the common law of torts in this statutory age.

2. History of Legislative Intervention in Tort Law

While the fundamental principles of tort law are found in the common law, legislation has nevertheless played a significant role since the mid 19th Century. Legislative intervention in tort law has historically tended to be piecemeal and context-driven, through specific extensions or restrictions of liability rather than through broad-ranging reforms. Overall, and until recently, legislatures have been more concerned with supplementing or extending common law remedies than with restricting them.

In certain discrete contexts, legislatures have replaced or supplemented the common law of tort by schemes or codes. For example defamation law is codified in Queensland and Tasmania, and partly so in Western Australia, while in New South Wales, Victoria, South Australia and the two territories it is a ‘mosaic of common law overlaid by, far from uniform, legislation’.[19] There are many state and federal workers compensation schemes dating back to the 1920’s but radically restricted in the 1980s and 1990s. [20] There are some limited schemes for sports injuries and for victims of crime.[21] Some motor accident schemes modify the common law but retain the fault basis,[22] while others such as in Victoria, Tasmania and the Northern Territory partly replace the common law with no-fault compensation.[23] Many states have legislated in the area of occupiers’ liability: Victoria, Western Australia, and South Australia.[24] There is specific legislation dealing with damage by animals, particularly damage by dogs.[25] There is state and federal legislation dealing with damage by or on aircraft.[26] There is strict liability for defective products under the Trade Practices Act 1974 (Cth).[27] There is strict statutory liability for loss caused by misleading and deceptive conduct outside as well as within a contractual setting, which applies to circumstances beyond the torts of deceit and negligence.[28]

While most of this piecemeal reform occurred in the 20th Century, one of the most significant pieces of reform to the general scope of tort liability occurred much earlier, in the midst of the railway[29] and industrial revolutions and at the height of free enterprise, trade expansion and laissez faire politics. Known as Lord Campbell’s Act,[30] the Fatal Accidents Act (1846) was introduced in England in 1846 and followed immediately in New South Wales.[31] Its descendant is the Compensation to Relatives Act 1897 (NSW) and similar statutes throughout Australia. It provided a statutory exception to the common law rule that ‘in a civil court, the death of a human being could not be complained of as an injury’,[32] by providing for a ‘wrongful death’ claim by dependants of the deceased victim.

Other significant legislative measures that extended general common law liability in tort were:

i apportionment for contributory negligence where it was previously a defence;[33]
ii contribution provisions, giving plaintiffs greater flexibility with regard to joint tortfeasors and allowing wrongdoers to seek contribution from other wrongdoers liable for the same damage;[34]
iii legislation in New South Wales in 1944[35] and the two territories[36] providing a remedy for nervous shock, to overcome the decisions of Bourhill v Young[37] and Chester v Waverley Corporation,[38] discussed in more detail below;
iv survival of actions legislation;[39]
v legislation to make the crown vicariously liable for breaches of statutory duties by officers of the crown and to make employers liable for breach of a statutory duty imposed directly on an employee.[40]

Legislation abolishing common law remedies without the provision of some alternative system or scheme of compensation (for example workers compensation schemes or motor accidents schemes such as in Victoria) has been rare and usually confined to anachronistic common law actions such as enticement of a wife or harbouring an errant wife, abolished by the Family Law Act 1975 (Cth)[41] . Different states have used different methods to redress the gender imbalance in regard to consortium actions: the action by a husband for loss of his injured wife’s consortium and servitium was abolished by statute in New South Wales, Western Australia, Tasmania, the Australian Capital Territory and Northern Territory,[42] partly abolished in Victoria,[43] but extended to give equal rights to a wife of an injured husband in Queensland and South Australia.[44]

3. A Brief Historical Survey of the Interplay of Statutes and Common Law in Tort

Referring to two ways that courts could ‘use’ statutes — directly by construction and indirectly by analogy — Professor Atiyah wrote:

Construction, as a matter of theory at least, requires the court to give effect to what it thinks the legislation actually enacts. Using statutes by way of analogy quite clearly involves using them to produce results which the legislation does not enact.[45]

Roscoe Pound writing in 1908 subdivided these two uses further.[46] Construction of a statute could be ‘liberal’ — that is, an intent to cover the field could be readily inferred — or ‘strict and narrow’; use by analogy could treat a legislative policy as superior to those of the common law or merely as of equal weight with a common law rule. To that could be added a fifth category of case if not of ‘use’: where the courts refuse to draw an analogy from a body of statute law because they do not see it as reflecting a compelling legislative policy.[47] Paul Finn has argued that all four of Pound’s categories have an appropriate place in our law and showed how different Australian cases across a range of areas have reflected each of these approaches at one time or another.[48]

A. Construction of Statutes in Tort Law

Where legislation is unambiguous, a court generally has little choice or leeway in interpretation, no matter what judges, litigants, lawyers or academics would prefer. The court must give effect to the ordinary, plain or natural meaning of the statute, read in context and bearing in mind the legislative intent or purpose.[49] This was so in the case of the Law Reform Miscellaneous Provisions Act 1965 (NSW) which provided for apportionment for contributory fault but only, by reference to the definition of the defendant’s ‘fault’ in the Act, where it would have been a complete defence at common law. Contributory negligence at common law was a defence only to negligence in tort, not to intentional torts (and not to strict liability) and not to contractual claims based on breach of a contractual duty of care. There was a widely held view that where duty and liability in tort and contract was concurrent, a plaintiff should not be able to avoid the partial defence of contributory negligence by pleading the case in contract rather than tort. Unfortunately this view overlooked the wording of the statute. In Astley v Austrust[50] the equivalent South Australian legislation was read literally by the High Court which held that the NSW CLA did not provide for apportionment for contributory negligence in contractual claims.[51]

In a remarkably quick reaction, most probably after lobbying by the insurance industry and accountancy bodies, legislatures around the country legislated to make contributory negligence not only grounds for apportionment in tort claims where it would have been a complete defence at common law but also in contractual claims where the duty breached was concurrent and co-extensive with the duty in tort.[52]

While state legislatures were quick to act after Astley, they have not always been so quick to react to judicial pleas for rectification of unclear or badly worded statutes. For example, the High Court has been called on several times to settle questions of interpretation of the Law Reform Miscellaneous Provisions Act 1946 (NSW) (and its equivalents in other states) dealing with rights of contribution between tortfeasors. In Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport[53] the High Court referred to a subsection of the equivalent English statute which the House of Lords had considered and remarked:

But as to the construction of the sub-section …their Lordships were unable to agree. It is small wonder, considering the economy of expression practised in the provision and the apparent failure to advert to any of the many practical problems involved in applying a general principle of contribution between persons liable jointly or severally for the same loss or damage.[54]

That one subsection was the subject of three High Court appeals over a period of 43 years in addition to at least one House of Lords decision. Although Barwick CJ pointed out in Brambles Constructions Pty Limited v Helmers[55] that the obscurity of the wording ‘cries out for some legislative intervention’ in order to clarify the section, that call has fallen on deaf ears. Let us hope the same fate does not await the uncertainties in some aspects of the new proportionate liability regimes.[56]

Where legislation is ambiguous or its meaning unclear, the courts immediately have more leeway in interpretation. The uncertainty may require the court to look carefully at the historical context of the legislation to determine what it was intended to achieve or what mischief it was intended to cure. Thus in Gifford v Strang Patrick Stevedoring Pty Ltd[57] members of the High Court looked at and relied on the Hansard record to elicit the intention of Parliament in enacting a 1944 NSW Act dealing with liability for nervous shock.

A common issue of interpretation is whether certain legislation is intended to ‘cover the field’[58] or merely to remedy a particular problem or fill a particular gap while allowing the common law to develop. Legislation is often silent as to its intentions in this regard. A prime example in tort law is in relation to recovery for nervous shock in New South Wales. After the stirring dissent of Evatt J in Chester v Waverley Corporation,[59] the New South Wales Parliament became one of the few in the common law world to pass legislation providing for a statutory liability for nervous shock suffered by certain family members of the victim of a defendant’s wrong.[60] This legislation was intended to overcome the restrictions of the common law, set out in Bourhill v Young[61]that nervous shock is not generally compensable at common law and in Chester that a person could only recover for nervous shock suffered as a result of actually seeing or hearing the victim killed, injured or put in peril by the defendant. The legislation removed the need for the named plaintiffs to prove an independent duty of care to themselves and created a statutory liability to the parents or spouse[62] even where they did not see or hear the event.[63] But for other relatives, the statute required that they see or hear the event.

Other states did not enact legislation and it was in those states that the common law continued its development so that eventually in 1984, in Jaensch v Coffey[64] on appeal to the High Court from South Australia, the common law abandoned its requirements of sight or hearing of the actual accident and, in line with the English case of McLoughlin v O’Brien,[65]extended recovery to the wife of a victim who had attended the ‘aftermath’ of the accident. Once freed of proving presence at the scene, relatives in New South Wales, other than a parent or spouse, were then often better off suing at common law than under the statute, although they still had to prove a duty of care to themselves (which the statute made unnecessary where it applied). Non-relatives of the victim, for example rescuers, friends, passengers of vehicles, had to rely on the common law.

For decades, the weight of authority was that the 1944 Act had not intended to cover the field[66] but in Gifford v Strang Patrick Stevedoring Pty Ltd,[67] it was decided in the District Court of New South Wales that the children of a worker crushed to death on a building site could not recover for their nervous shock because they had not seen the accident as required by s4 (1)(b) of the 1944 Act and that that Act covered the field of nervous shock actions leaving no room for the common law in New South Wales. The Court of Appeal disagreed on that point but was constrained by the then prevailing common law requirement of attendance at the aftermath. Following the decision of the High Court in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd[68] that direct perception of the accident or aftermath was not essential at common law, an appeal to the High Court by the children was successful. The High Court held, finally, that the 1944 Act was not intended to cover the field. Its wording was expansive or ‘extensive’ rather than definitive or restrictive.[69] But by the time this issue was settled, it was no longer of long-term importance in negligence cases because of the 2002 reforms.[70]

Apart from the statutory liability, the development of the common law for recovery of nervous shock was cautious and slow. Courts retained the nomenclature of nervous shock with its inherent notion of a sudden event. Often pronouncements and obiter dicta of the higher courts were treated almost as though they were statutory provisions. For example, the obiter dictum of Deane J in Jaensch v Coffey that ‘in the present state of the law [a] duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the [defendant]….’[71]

In 2002 the High Court in Annetts liberated the law of nervous shock from what had come to be regarded as a fixed or quasi-statutory requirement of the common law — the requirement of perception of the scene or aftermath — and held that the ordinary principles of negligence applied to claims for nervous shock and that the relevant criteria for the existence of a duty were the same as in all negligence cases. Reasonable foreseeability of shock suffered by a person in the position of the plaintiff remained the cornerstone of liability and a number of other factors might also point to a duty of care, for example control by the defendant and the pre-existing relationship between the parties. Sudden shock was not a necessary requirement of recovery. Actual perception of the accident or aftermath was not a fixed requirement. Rather there were a number of relevant factors or salient features which would be determinative of the existence of a duty of care, grounded on reasonable foreseeability of the plaintiff.

The last chapter in this saga so far is the NSW CLA. The ‘mental harm’ provisions of the NSW CLA, in Part 3, far from restricting the common law, in fact virtually mirror most of the common law developments particularly those set out in Annetts. However the legislation is more uneven in its treatment of witnesses to and rescuers in an accident: the former appear better off, the latter worse off. It also winds back the clock for parents and spouses of primary victims who previously had the benefit of the 1994 Act.[72]

B. Analogy from Statutes in Tort Law

More controversial than construction of statutes is the indirect effect of statutory developments on the common law.

It is generally accepted that the common law may evolve in the context of changing social conditions, although judges disagree as to whether it may explicitly or expressly react to change and as to whether obsolescence on its own is sufficient justification for a court to overturn a long settled principle. Justice Brennan has said:

Within proper limits, judges seek to make the law an effective instrument of doing justice according to contemporary standards in contemporary conditions. And so the law is changed by judicial decision, especially by decision of the higher appellate courts.[73]

Talking about the power of the judiciary relative to that of the legislature, Justice McHugh of the High Court recently stated:

Law making in private law cases raising social economic and sometimes political issues … has strengthened the position of the judiciary. Cases concerning such issues frequently enable the judiciary to change the direction of society.[74]

In doing so, how is a court to determine contemporary standards and conditions? That is a broader question than the context of this paper allows.[75] The question in our context is: how and when is it legitimate for a court to take into account statutory developments when it is considering the common law, on the basis that they reflect significant changes in social policy or conditions or community values and sentiment?

In his Chorley Lecture in 1984, ‘Common Law and Statute’, Atiyah asked several questions:

Can the courts…use statutes as analogies for the purpose of developing the common law? Can they justify jettisoning obsolete cases, not because they have actually been reversed by some statutory provisions, but because a statute suggests that they are based on outdated values? Could the courts legitimately draw some general principle from a limited statutory provision, and apply that principle as a matter of common law?[76]

In Esso,[77] the High Court was considering whether it should overturn its earlier decision in Grant v Downs[78] which had a established a ‘sole purpose’ test for legal professional privilege and adopt instead a ‘dominant purpose test.’ In the end it did so, by a majority, but not for one of the reasons advanced by the appellant, namely a so called ‘doctrine of analogy’ by which the Court should take into account and follow a trend of legislative enactment on the issue. In an earlier case, Adelaide Steamship Co Ltd v Spalvins,[79] the Full Federal Court had concluded that the Evidence Act 1995 (Cth) had ‘created an entirely new setting to which the common law must now adapt itself.’[80] But the members of the High Court in Esso pointed out that there was a fundamental difficulty with this line of reasoning in this context and that was that the legislation did not apply throughout Australia, but only at the time in federal courts, one state and one territory:

There is no consistent pattern of legislative policy to which the common law in Australian can adapt itself.[81]

Australian courts developing ‘but one common law’[82] are in a more difficult position because of the federal system with its multiple states and split of federal and state powers. While in other cases, the High Court had taken into account a body of federal law[83] or a uniform pattern of legislation in five states in criminal law statutes,[84] this was not the case in respect of legal professional privilege, where only three state legislatures and the federal legislature had enacted the test but with varying application, and other state parliaments, although they had considered the issue, had not done so. Nevertheless, the fact that the common law under Grant v Downs was out of step, not only with the common law position in Canada, England, Ireland and New Zealand, but also with the statutory provisions of the Commonwealth and New South Wales, encouraged the High Court to reconsider (and ultimately to overturn) its previous decision.

By contrast, four members of the majority of the High Court which recently upheld the common law immunity from negligence of advocates in D’Orta-Ekenaike v Victoria Legal Aid,[85] against the trend in other countries, found support for their decision in the fact that the Victorian Legal Practice Act (1996) expressly provided that it did not abrogate the common law immunity and that the legislature had deliberately not adopted the recommendation of the Law Reform Commission of Victoria that the immunity be removed by legislation. The sections of the NSW CLA imply that the immunity would be preserved.[86]

Of course the failure of a legislature to adopt and enact a law reform proposal does not necessarily reflect a considered decision by the legislature not to do so. It might equally reflect a lack of interest in, or of research into, the issue, a practical inability, or a lack of political will. In some cases, courts have been prepared to take the step that the parliament in a particular jurisdiction had not taken, for example, to abolish the highway authorities’ immunity, in Brodie v Singleton Shire Council,[87]and landlords’ immunity in Northern Sandblasting v Harris and Jones v Bartlett,[88] where such immunities were inconsistent with other developments in the law.

The question of whether courts should regard the NSW CLA as evincing some broad legislative policy of restricting liability for negligence, which should be applied to aspects of the common law not mentioned by the act, is an issue which has already surfaced and already provoked disagreement at appellate court level. In Harriton v Stephens; Waller v James[89] the New South Wales Court of Appeal recently considered whether the law should recognise a common law duty upon a doctor to avoid the so-called ‘wrongful life’ of the plaintiff.

Ipp JA supported his decision to reject the imposition of a duty on doctors, on doctrinal, philosophical and logical grounds, by the following ‘policy considerations’:[90]

Generally speaking, at the present time, when legislatures throughout the country have legislated or have foreshadowed legislation restricting liability for negligence… it would be quite wrong to expand, by judicial fiat, the law of negligence into new areas.

Mason P (who dissented from the majority decision denying the duty of care) disagreed in strong terms with this view:

I do not deny that legislation may exercise a gravitational pull upon the development of legal principle in particular fields (see generally Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31; (2001) 207 CLR 165 at 230 [170]). But I know of no legal principle that directs the common law to pause or go into reverse simply because of an accumulation of miscellaneous statutory overrides. Parliament has frequently overridden or modified fundamental legal doctrines such as client legal privilege, self-incrimination privilege and natural justice. But the common law has stood resolute to its fundamental principles except when clearly expressed legislation indicates that they must be abandoned in particular contexts.[91]

In D’Orta-Ekenaike, members of the High Court majority refused to treat the recent wave of tort reform as indicative of any persuasive policy relevant to the issue of advocates’ immunity:

Some other legislative events must be noticed. Since 1999, State legislatures have given close attention to what has been called ‘tort law reform’. In particular, close attention has been paid to the law of negligence, and a number of statutes have been passed since 2000 which have dealt with that general subject. In none of that legislation has there been any reference to the immunities from suit of advocates, witnesses or judges.[92]

This approach implies that courts will be reluctant to give the civil liability acts any greater application or influence than the strict interpretation of their provisions requires.

Even more questionable than finding some indirect legislative influence from current statutes is the use of new legislative provisions as the basis for reformulating common law principles when a court is deciding a case which arose before the commencement of the legislation. It is arguable that this is what is happening in the New South Wales Court of Appeal in a series of cases[93] where causation is an issue. Instead of applying the common law principles set out by the

High Court in March v Stramere[94] and Bennett v Minister of Community Welfare[95] the principles applied look remarkably like the new provisions of the NSW CLA based on the recommendations of the Ipp Report which in turn drew extensively on the work of Stapleton.[96] For reasons I set out below I do not think that the principles set out in the act are the same as the common law principles laid down in March. In the meantime, special leave from these cases has been granted by the High Court which may or may not be asked to consider if it wants to reformulate the common law principles settled in March and Bennett to take into account legislative developments since those decisions. It seems unlikely that it would do so, as it would mean that a plaintiff would have his or her case decided by reference to legislative developments which occurred after the tort in question. While a change in the common law at the highest appellate level necessarily operates retrospectively with regard to the parties before the court (or as a result of some fiction[97] of the declaratory theory of judicial law-making that the new common law rule was hidden, waiting for the court to find it), retrospective application of statutes by analogy would seem to be an unjustifiable expansion of legislative influence.[98]

4. The Substance and Interpretation of the Civil Liability Reforms

Now turning to the 2002 reforms. It is as well to note at the outset that the NSW CLA is not only about tort law and not only about personal injury law. It also regulates liability for breach of contractual duties of reasonable care so that contract lawyers will also now have to grapple with how, for example, common law causation and remoteness principles in contract law are affected by the ‘causation’ principles set out in the Act. (Those statutory principles will not however affect the common law principles in relation to strict contractual warranties or duties). Furthermore, the act affects liability for any type of loss or damage resulting from negligence, based in ‘contract, tort, under statute or otherwise’,[99] despite the fact that many of its provisions are based on the recommendations of the Ipp Report which dealt only with liability for personal injury and death. One of its most important reforms, the introduction of proportionate liability to replace joint and several liability for negligence, applies only in respect of property damage and purely economic loss.

The overall purpose and tenor of the NSW CLA will be an important factor in interpreting particular provisions. Thus, this part of the article will first give a brief overview of the NSW CLA before moving to an analysis of the most problematic matters of interpretation. Those include areas where the statute merely restates the common law and three significant areas where the NSW CLA purports to regulate or change the common law principles: the test for breach of duty in negligence, liability for obvious risks generally and in recreational activities; and the principles of causation. A particular focus will be the question of the continuing relevance of the body of common law case law.

The NSW CLA makes a number of significant changes to the common law,[100] all designed to reduce liability for negligence:

i Reduction of common law damages and recoverable costs. These reforms do not go as far as Sugarman suggests.[101] They reduce liability and change the burden of liability for losses while still retaining liability for fault. They do introduce some disincentive against bringing claims, particularly small claims, rather than relying on other sources of financial assistance such as Medicare and private health insurance systems and government funded social services or disability pensions.
The legislation introduces caps on damages, both economic (for loss of past and future earning capacity) and non-economic; threshold amounts for damages for non-economic loss; a higher discount rate for calculating lump sums; limits on claims for gratuitous care; and substantial limits on the recoverable legal costs for smaller claims.[102]
ii A ‘modified Bolam’[103] defence for professional negligence. That is, a professional will not now incur liability in negligence if it is established that the professional acted in a manner that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice.[104]
iii Protection from liability for negligence for volunteers connected to defined community and voluntary organisations.[105] Protection does not extend to voluntary or community organisations or entities for their own negligence (whether in breach of an ordinary or a non-delegable duty eg in a relationship analogous to that of a school)[106] although the protection given to volunteers will reduce their burden of vicarious liability.[107]
iv Proportionate liability for property damage and economic loss claims.[108]
The legislation gives rise to a number of issues of interpretation and some practical issues about which it provides little if any guidance.[109]
v A provision that an apology (whether or not with an express or implied admission of fault) does not constitute an express or implied admission of fault and is not admissible as evidence of fault or liability.[110] This provision and variants in other states are discussed by Vines’ article in this volume.[111]
vi A wide range of exclusions of liability for negligence where the person injured is ‘under the influence of’ any alcohol or drugs, including medicinal drugs.[112]
vii Exclusions of liability to those committing a ‘serious’ offence which contributed to the injury.[113] The section does not operate where the defendant also committed an offence (section 54 (5)) so that the common law principles on the ‘defence’ of illegality in the case of joint illegal enterprises would continue to apply, effectively barring a claim where the plaintiff and defendant are engaged in seriously criminal, risky, anti-social behaviour.[114]
viiiThe Act not only legislates for protection in cases of negligent or intentional conduct causing injury or death in self-defence, defence of others or defence of property (unless death in fact ensues after intentional or reckless infliction), but limits damages even where the act in self defence etc is not a reasonable response, unless the court is satisfied that the circumstances are exceptional and the failure to award damages is harsh and unjust.[115]

There are a number of other reforms which are less significant because they are responding to matters which were not significant problems in the operation of the existing law. In these instances, the reforms have little purpose other than to assist the impression that the legislature is being busy and perhaps to head off extravagant claims in the future:

i. Exemplary or aggravated damages for personal injury caused by negligence are abolished.[116]
ii. Good Samaritans are protected when acting voluntarily in an emergency.[117]
iii. Contributory negligence may now defeat a claim for damages if the court thinks it just and equitable for it to do so.[118] This provision seeks to overcome the decision of the High Court in Wynbergen v Hoyts Pty Ltd[119]that where a court has determined that the fault of both the plaintiff and the defendant caused the plaintiff’s loss, it cannot logically be ‘just and equitable’ under the apportionment legislation to hold the plaintiff entirely responsible. (If the defendant’s negligence was not causative of the loss in the first place, then there is no liability. If it was, some responsibility should generally ensue if other requirements for the action are met.) The circumstances in which a court would totally disregard a defendant’s causative negligence must be so rare that this section will probably have little effect. It may be that courts, even though armed with this power and even though apportionment is within the discretion of the judge, will continue to be persuaded by the logic and tenor of the High Court’s unanimous decision.

A. Provisions Which Restate the Common Law

In some provisions, the Civil Liability Act merely restates the common law or sets out a position that the common law had already reached. What Roscoe Pound described as ‘declaratory’ statutes are not unknown. But what is the point of such provisions, apart from allowing the legislature to look busy? One purpose may be to consolidate relevant legal principles which are otherwise scattered across fields of the law. Another may be to extend the operation of a legal principle to areas or facts outside those already the subject of the case law. Another may be to demonstrate legislative support for or give the legislature’s imprimatur to a particular principle, perhaps to dispel doubts about the principle’s validity. Another may be to ensure that the courts do not change or whittle away what the legislature sees as an important principle, in other words to freeze the development of the common law.

If the provisions of an Act do not state the whole of the common law relevant to a particular issue, judicial development of those ancillary issues will continue in a way that can expand, limit or change the scope of the rule, as happens in New South Wales in defamation law where the current statute, the Defamation Act 1974 (NSW), leaves to the common law the definition of what is ‘defamatory’. Continuing interpretation of this element of the cause of action in defamation has a significant impact on the scope of defamation law. Similarly, the task of a court in determining when and where a defamatory slur is ‘published’ depends on the common law principles, as statutes rarely define what is meant by the requirement of ‘publication’. Thus the law of defamation must accommodate dramatic changes in methods of communication,[120] much as the law of copyright needs to.

In contrast, where legislation sets out the whole common law rule it may crystallise or freeze the development of the common law principles, preventing the courts from changing or moulding the principles in any way other than by changing their interpretative method. For example, legislation may give the provisions a narrow and literal, rather than a wide, interpretation, possibly because the previous interpretation of the provision was out of step with changes in legislative policies or other developments in the law.

(i) Inherent Risks

One example where the Civil Liability Act does no more than reflect the common law is the section dealing with inherent risks which provides that there is no liability in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.[121]

Section 5I No Liability for Materialisation of Inherent Risk
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill
(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

‘Inherent risk’ is defined as ‘a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill’.[122] Logically of course, if a risk cannot be avoided by reasonable care, there could be no negligence arising from its materialisation. This was pointed out by Kitto J in Rootes v Shelton, a case involving water skiing.[123] Many activities involve inherent risks. If on the other hand the risk could have been avoided by reasonable care, then there may well be negligence on the part of the defendant and the risk of such negligence is neither inherent nor likely to have been readily assumed (such as to give rise to the common law defence of voluntary assumption of risk) by a participant in an activity.

It seems that it will continue to be helpful for reference to be made to cases such as Rootes v Shelton which explain how the argument of lack of negligence in relation to ‘inherent risks’ co-exists or is to be compared with the defence of volenti non fit injuria or voluntary assumption of risk.

Nevertheless it is interesting to note that the section of the NSW CLA dealing with inherent risks falls under the heading ‘Voluntary Assumption of Risk’. This is misleading. At common law, this phrase describes a complete defence, the onus of proof of which is on the defendant. But the statement of ‘no liability’ for inherent risks set out in section 5I is not expressed as a defence, nor does it involve the same concept as the common law defence. The common law defence is that the plaintiff voluntarily assumed the particular risk, which may or may not have been inherent and may or may not have been obvious, which caused the damage or loss. Because it is so difficult to prove, the defence is rarely used and defendants now tend to rely on the partial defence of contributory negligence. Many cases have dealt with what is involved in the term ‘voluntary’, for example actual knowledge and appreciation of the particular risk and practical freedom to choose whether to take that risk. The Ipp Panel declined to recommend a provision relating to voluntariness as this is an ‘evaluative question’ about which it would be difficult to make a general provision.

It appears that the common law defence of voluntary assumption of risk is unchanged in relation to all non-obvious risks. The reforms dealing with obvious risks will be dealt with below.

B. Standard of Care in Contributory Negligence

Another example of NSW CLA reflecting the common law is the provision that the principles in relation to determining contributory negligence are the same as those for determining negligence.[124]

This provision was apparently intended by the Ipp Panel to mean that the new provision[125] which sets out a test for negligence or breach of duty (discussed below),[126] also applies to contributory negligence. Again, the section reflects the current common law position, although without explicit reference to the necessary qualifications recognised at common law,[127] which arguably must now be read into the provision. First, that a plaintiff’s contributory negligence consists merely of failing to take reasonable care for his or her own safety rather than failing to take care for other people’s safety, and second, that it may often include failing to protect himself or herself against the consequences of other people’s negligence. It is the first qualification which accurately explains why courts generally treat a plaintiff’s negligence as less culpable than a defendant’s, not the existence of some lower standard of care.[128]

C. Liability of Public Authorities

In relation to the liability of public authorities, again some of the statutory provisions reflect the current approach of the common law, for example the inability of the court to adjudicate upon the authority’s allocation of resources;[129] or the principle that the court, when assessing the existence of a duty of care or whether a duty was breached, will take into account the burden of taking precautions across the whole range of the defendant’s responsibilities.[130] Contrary to widespread rumour, the provisions only partially reinstate the immunity of highway authorities, abrogated by the High Court in Brodie v Singleton Shire Council,[131] making the immunity depend on a lack of actual knowledge of the particular risk.[132] Other provisions on the liability of public authorities go beyond the existing common law and appear to attempt to build some connection with public law remedies.[133] The intersection of the common law principles and the new statutory provisions in this most difficult and complex area of the law is worthy of detailed treatment on its own.[134] Nevertheless, it can at least be said that it is hard to imagine a court making sense of these provisions without the aid of the judicial discourse in the body of case law about the fundamental legal and governmental issues and tensions inherent in this area of negligence law.

5. Provisions Which Appear to Regulate or Change the Common Law Principles

A. The Test for Breach of Duty in Negligence

The provision on the test for negligence[135] tinkers with the two-staged test set out by Mason J in The Council of the Shire of Wyong v Shirt[136] in an apparent attempt to rein in the alleged tendency of judges only to apply the first of the two stages.

The well-known test set out by Mason J in Wyong v Shirt is as follows:

Whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff? If the answer be affirmative, it is then for the tribunal of fact to determine:
2. What a reasonable man would do by way of response to the risk? The perception of the reasonable man’s response calls for a consideration of the
(a) magnitude of, and the degree of the risk,
(b) the probability of its occurrence, along with
(c) the expense, difficulty and inconvenience of taking alleviating action and
(d) any other conflicting responsibilities which the defendant may have.

This test was of course not new then. It had its origins in the well known dictum of Blyth v Birmingham Waterworks Co[137] that:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

In the United States the test became known as the negligence calculus after the dictum of Judge Learned Hand in United States v Carroll Towing Co[138] describing the notion in algebraic terms:

… if the probability be called P; the injury L; and the burden B; liability depends upon whether B is less than L multiplied by P; ie whether B is less than PL.

The Ipp Panel reported that ‘lower courts’ seemed to be in danger of ignoring the process of balancing the four elements of the negligence calculus identified in Wyong v Shirt case. They tended to treat a decision that a risk was foreseeable and not far fetched as conclusive that the defendant was negligent if he or she failed to take steps to avoid it, rather than going through the balancing process set out in the second stage.

Much of the difficulty with applying this test has arisen because dicta of Lord Reid in (Wagon Mound (No 2))[139] have been cut up and quoted in isolated extracts taken out of context which have then been applied as if they were some statutory definition of negligence.

In the context of a fire or a risk of fire it was arguably perfectly appropriate for a court to conclude that a reasonable person would not neglect a small (in the sense of low probability) risk of fire if it presented no difficulty, no expense and no disadvantage. A fire can start from a spark and cause an uncontrollable conflagration wreaking damage to life and property across a wide area. In that context it may be perfectly reasonable to decide that the gravity of the risk, in the sense of the seriousness of the possible or likely damage, outweighs the other balancing factors and comes down against the defendant. But that is not to say that it will always be the case that the balance will come out against the defendant in other cases involving foreseeable but low probability risks. That is a matter of fact, of weight and of balance of many factors.

It was never the law that a defendant was automatically negligent for failing to guard against foreseeable risks. Foreseeability of risk was only ever half the question in regard to breach of duty. Just because some judges have misapplied the test and not engaged in a proper balancing act is no reason to throw out the test.

In Swain v Waverley Municipal Council,[140] McHugh J recently called for the common law to set its face against the pernicious principles expounded in the Wagon Mound (No 2) which have done ‘such damage to the utility of the common law doctrine of negligence that it is now on the verge of legislative extinction in many jurisdictions’ and to adopt the approach Fleming set out in the first edition of his book in 1957,[141] that a risk must be unreasonable in the sense of involving a sufficiently significant risk of injury before any issue of reasonable practicality of response arises.

Section 5B General Principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm
(d) the social utility of the activity that creates the risk of harm.

What the legislation does, following the Ipp Panel’s recommendation, is tinker with the common law test. Instead of the words ‘not far fetched’, the legislation substitutes ‘not insignificant’. Instead of ‘the cost’ of taking precautions, there is substituted ‘the burden’. Instead of ‘any other countervailing responsibilities the defendant may have’ the test requires the court to balance ‘the social utility of the activity that creates the risk of harm’.

The Ipp Panel preferred the words ‘not insignificant’ to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far fetched or fanciful’ but not as high as indicated by the words ‘significant’ or ‘substantial’.[142]

This is a matter of very, very fine distinctions, which would challenge many philosophers, let alone the ordinary person or lawyer trying to apply the NSW CLA. I suppose that a foreseeable risk can be insignificant even though it is not far fetched. But, as Mason J pointed out the probability of the risk is to be considered at the second stage of the question not the first and this sequence is retained in the legislation. The Ipp Panel intend it to be ‘a precondition of the application of the negligence calculus’.[143] Yet I think most people would find it hard to decide whether a risk was significant or insignificant or ‘not insignificant’ until they had thought about, at least, the probability of its occurring and the likely seriousness if it did.

The Victorian reforms attempt to provide some further guidance as to the meaning of ‘not insignificant’. Section 48(3) of the Wrongs Act 1958 (Vic) as amended now provides, after the same provisions as s5B of the NSW CLA:

(3) For the purposes of subsection (1) (b) —
(a) insignificant risks include, but are not limited to, risks that are far fetched or fanciful; and
(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

This is really no more than an attempt to codify logic or common sense reasoning and may not provide any assistance to the tribunal of fact charged with evaluating whether a defendant’s conduct was reasonable or not.

The substitution of ‘the social utility of the activity that creates the risk of harm’ for ‘any other countervailing responsibilities of the defendant ‘raises a different issue. While the common law wording allowed the court to make a comparative assessment of utility, benefits, obligations and necessity[144] involved in the defendant’s activities or position, the words seem to direct the tribunal to look at the activity in isolation, unless the word ‘social’ encourages the court to look at the activity in a broader spectrum. While juries are theoretically better suited to the task, it is interesting to speculate how a court comprising a single judge is to go about evaluating the social utility of a defendant’s activities. [145]

Each of the common law balancing considerations in the negligence calculus is the subject of a body of case law. The authors of Balkin and Davis’ Law of Torts state ‘it is assumed that, when interpreting this legislation, the courts will be guided by the principles already developed by the common law over the previous century or more.’[146]

In conclusion, it is hard to see how this section will make the task of judges and juries much easier or that it will necessarily reduce the number of findings of negligence. It seems that the main point of embodying the negligence calculus in legislation was to ensure that lawyers and judges keep reading to the second stage of the test. As Premier Carr said in his Second Reading speech on 23 October 2002:

Although people might argue that these considerations are already the law, putting them in this bill will help curtail the willingness of some courts to find a creative way around them.[147]

At least the legislation on this point is relatively uniform across jurisdictions so that some consensus may develop on interpretation of the provision.


B. Inherent and Obvious Risks Generally; Recreational and Dangerous Recreational Activities.

What might be described as the cornerstone of the civil liability reforms is, in the NSW CLA, Divisions 4 and 5, headed respectively ‘Assumption of Risk’ and ‘Recreational Activities’. While the restrictions and caps on damages and costs go a long way to reducing all payouts, this is the part that responds to the rhetoric about ‘personal responsibility’, the idea that a person should take responsibility for his or her own actions without blaming someone else (no matter, it is implied, whether or not that other person was at fault). Yet this is probably the most complex part of the statute for the educated reader, let alone for the uneducated one. Why that should be so might be that legislators cannot usually bring themselves to (or cannot admit that this is what they are doing) explicitly legislate that one person must bear the burden of another’s negligence, when all the usual criteria for responsibility are present. So instead they go as far as they dare, attribute greater effects to their attempts than actually follow, and hope that the limits they can or appear to impose provide sufficient discouragement of worthy claims to achieve their aims.

The exception to this legislative reticence is the provision[148] by virtue of which a term of a contract for the supply of recreation services may exclude, restrict or modify any liability that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. Where a person enters a contract with a clause limiting or excluding liability for death or personal injury caused by negligence, the clause is now given statutory force by this provision and also by the new parallel provisions of the Trade Practices Act 1974 (Cth) in relation to recreational activities.[149] I said that I was not going to comment on the injustice of these reforms but I am going to make an exception for this extraordinary measure. Why governments would wish to allow commercial recreational providers to exclude liability for negligence, including even the grossest failure to take care, and shift the costs of their negligence onto the public purse rather than bear them or pass them on to all those who partake in or benefit from the activity is, at best, puzzling. How quickly the public and government have forgotten the occasion in July 1999 when many young Australians, on one of those rites of passage known as a ‘Contiki’ tour of Europe, tragically lost their lives in the Swiss canyoning disaster, which could have been prevented so easily. Or the divers left behind near the Barrier Reef and never found after a diving trip? In other cases, those who suffer from negligence could include the most vulnerable in our society: our children.[150] It seems offensive to the fundamental values of a modern civilised society to include this shedding of responsibility in a ‘personal responsibility’ program.

But leaving aside contractual exclusions, the critical question is just what exactly do Divisions 4 and 5 of the NSW CLA do? Do they place ‘personal responsibility’ onto participants of activities and if so, personal responsibility for what? How do the provisions differ in their application to a recreational and a non-recreational activity? Do they provide the level of protection for operators and providers of services that insurers said they required in order to offer affordable premiums or insurance cover at all? And what level of protection is that? Protection from liability for risks that are reasonably preventable, or only from those that are not reasonably preventable? Freedom from liability only when participants fail to take basic safety precautions or freedom for providers not to take basic safety precautions?

(i) Inherent and Obvious Risks Generally

Division 4 entitled ‘Assumption of Risk’ applies to all claims of negligence: whether liability is in tort, contract, under statute or otherwise, including recreational activities, and not just in personal injury claims. It may, for example, apply to limit liability for failure to warn in any professional advice case, unless the plaintiff has requested advice from the defendant on ‘the risk’— presumably meaning the particular risk that occurs— and except where the risk is one of death or personal injury. In summary, the Division limits liability by making the defence of voluntary assumption of risk easier to rely on and by excluding a duty to warn of obvious risks, except in specified circumstances.

The section on ‘inherent risks’, which merely restates the common law on circumstances which do not entail negligence, discussed above, is relevant background here. More significant are the sections on ‘obvious risk’ dealing with a presumption of awareness and duties to warn.

The definition of ‘obvious risk’ for the NSW CLA is wide[151] — a risk that would have been obvious to a reasonable person in the position of the defendant

— and includes risks that are of low probability and risks, which are not physically observable.

At common law, and subject of course to satisfaction of the negligence calculus, a person may be liable both or either for failing to prevent the occurrence or materialisation of a foreseeable risk and/or for failing to warn of a foreseeable risk, unless the plaintiff had voluntarily assumed that risk.

Section 5G Injured Persons Presumed to be Aware of Obvious Risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent of manner of occurrence of the risk.

Section 5H No Proactive Duty to Warn of Obvious Risk

(1) A person ‘the defendant’ does not owe a duty of care to another person ‘the plaintiff’ to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) The plaintiff has requested advice or information about the risk from the defendant, or
(b) The defendant is required by a written law to warn the plaintiff of the risk, or
(c) The defendant is professional and the risk is a risk of the death or of personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of duty to warn of a risk in the circumstances referred to in that subsection.

Clearly the presumption of awareness of obvious risks now makes the defence of voluntary assumption of risk easier for defendants to prove in cases of obvious risks: a person is presumed to have been aware of an obvious risk, unless he or she proves that he or she was not, whereas the common law placed the onus of proof on the defendant to prove the plaintiff’s awareness and assumption of risk. However, the NSW CLA makes no further provision to render the plaintiff’s awareness of a risk a defence to a claim so that this provision does not replace the common law defence. Nor, as mentioned above, does it make any provision about the need for proof that the risk was voluntarily assumed, which is one of the other key elements of the common law defence.

But as well as being clearly relevant to the defence, the obviousness of a risk is also one of the factors (and it might be a factor of great weight) which are relevant to the existence of or ‘scope’[152] of a duty of care and to the issue of breach of duty (because obviousness may affect the probability of the risk occurring and the need to warn of it or the precautions needed to prevent it).[153] Any duty to warn is specifically attenuated by s5H: it provides that there is no duty to warn of an obvious risk to the plaintiff, except where the plaintiff has requested advice on the particular risk, the defendant is required by law to warn, or the defendant is a professional person and the risk is of personal injury or death.[154]

But what of the duty to prevent the occurrence or materialisation of a risk, obvious or not? Because s5G comes within a Division entitled ‘Assumption of Risk’, it is arguable that the presumption of awareness was intended to apply only in relation to the defence of voluntary assumption of risk and not to the issue of any duty to prevent the occurrence of a risk or breach of that duty, which will continue to be determined by the common law principles currently under some development.[155] This interpretation is strengthened by the contrast with the more restrictive provisions of the NSW CLA dealing with dangerous recreational activities, discussed below.[156]

Although most cases dealing with obvious risks are personal injury cases, it is well to emphasise that this provision has a wider operation. It might apply to limit liability in negligence in a range of situations: for example, pure economic loss cases; a banker providing general advice to a customer on foreign exchange loans; a stockbroker advising a client; a builder or architect advising a client. Duties to warn will vary now according to a number of factors, such as whether a risk was the subject of a specific request and whether it could be classed as obvious.

(ii) Recreational and Dangerous Recreational Activities

As noted above, the law relating to such activities attracted widespread community comment because organisers of both not-for-profit and commercial recreational activities suddenly found themselves without affordable insurance cover. Members of Parliament spoke in emotive and patriotic terms about the importance of preserving ‘the Australian way of life’, as though sporting, leisurely and adventurous activities are unknown elsewhere in the world. No doubt in response to these concerns, and despite the lack of hard evidence or even consensus that the true cause of the problem was the state of the common law,[157] the NSW CLA’s provisions take an even stricter approach than that recommended by the Ipp Panel. According to the Attorney General of New South Wales this was to give ‘greater assurance for recreational service providers’.[158]

Division 5, dealing with recreational activities[159] provides that a person is not liable in negligence as a result of the materialisation of an obvious risk of a dangerous recreational activity (this applies regardless of whether a warning was or was not given and regardless of whether the defendant was in a vastly superior position to the plaintiff to guard against the risk). It also provides that a person does not owe a duty to a participant of any recreational activity in respect of any risk, obvious or not[160] provided they have been given a risk warning, as defined very widely by the NSW CLA.[161]

In practice, much will turn upon whether the actual risk warning given by the defendant was adequate in the terms of the statutory requirements[162] and, secondly, on whether the activity involved comes within the definition of a ‘dangerous recreational activity’, that is, whether it involves a significant risk of physical harm. [163]

The fundamental questions of interpretation involved in Division 5 are more difficult to resolve:

i Can a risk of negligence by a defendant in relation to a dangerous activity ever be classed as an ‘obvious risk of the activity’? Surely, it is the opposite: the reasonable expectation of any participant is that the provider will take at least reasonable care? But expectations aside, it seems that the unspecified negligence of another person is not a risk arising out of the activity itself.[164]
ii For the purposes of s5M, is the risk of negligence by a defendant a risk that may be the subject of a risk warning? Again, it is hard to imagine a situation where, outside contract, parties would be able to rely on a general, unspecific, warning that the defendant might not take proper care or has no liability for negligence or that the plaintiff enters or participates ‘at their own risk’. Such a warning is not a warning of the ‘general nature of the particular risk’.[165]

To conclude, although there has been much fanfare of the high degree of protection given to recreational providers by the legislation, it is strongly arguable that it will be difficult to rely on these provisions to excuse negligence in organising or carrying out an activity, particularly a dangerous one.[166]

C. Causation Principles

The continuing role of the common law principles of causation and remoteness of damage in negligence cases is particularly uncertain in view of the legislative provisions. The Ipp Panel did not recommend a particular formulation of the provisions but only of the principles they should embody. The provisions are much briefer.

Division 3 Causation

5D General Principles

(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party….

Section 5E Onus of Proof

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The legislative provisions raise several questions: i In what respects do the principles set out in the statute differ from the common law principles of causation? ii Do the common law principles of causation continue to have any relevance? iii Does the provision deal only with causation principles and not with what Anglo-Australian law calls ‘remoteness of damage’? iv If so, how do the common law principles of remoteness of damage interplay with the new causation principles? v If the provision does encompass or integrate remoteness principles, do the common law principles of remoteness continue to have any relevance? vi What is the intent and effect of the provision concerning the onus of proof ?

Causation is a notoriously difficult question for lawyers, philosophers and scientists alike. Debate about causation goes back 2000 years. In law, academic and judicial views go around and around with no-one ever entirely satisfied that he and she has got it exactly right or has solved all issues of logic, legality and morality. The current common law approach to causation for legal purposes in Australia — the common sense test — was set out by a majority of the High Court in March.[167]

The common law tradition is that what was a cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’…[168]

It was recognised that the notion of common sense incorporates value judgements.[169] Although rejecting it as a complete test of causation, Mason CJ and others in the majority nevertheless accepted that the ‘but for’ test, applied as a negative criterion of causation, has an important role to play as a threshold test in the resolution of the causation question, subject to certain qualifications when it would give a result contrary to common sense, for example, where there are two or more sufficient causes, or in some cases involving successive events.[170]

In contrast, McHugh J in March was of the view that the ‘but for’ test should be the exclusive test of causation, except in the case of simultaneous sufficient causes, (although he does suggest that it be applied in a practical common sense way which enables a tribunal of fact, consciously or unconsciously, to give effect to value judgements concerning responsibility, such as ignoring mere preconditions)[171] and that:

Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule concerned with remoteness of damage, not causation.[172]

Earlier he had said:

Whatever label is given to such a rule — “common sense principles”, “foreseeability”, “novus actus interveniens”, “effective cause”, “real and efficient cause”, “direct cause”, “proximate cause” and so on — the reality is that such a limiting rule is the product of a policy choice that legal liability is not to attach to an act or omission which is outside the scope of that rule even though the act or omission was a necessary precondition of the occurrence of damage to the plaintiff. That is to say, such a rule is only concerned with the question whether a person should be held responsible for an act or omission which ex hypothesi was necessarily one of the sum of conditions …which produced the damage.[173]

The majority approach was affirmed in a series of cases following March and has not been overturned by the High Court since, even though the Court has had ample opportunity to do so in any of the many difficult cases, which it has considered.[174]

As noted above, the legislative provisions are based on the recommendations of the Ipp Panel. The Ipp Panel stated that it made no recommendation to overturn the ‘but for’ test and noted that the law has devised satisfactory and fair rules for resolving the exceptional cases referred to above. It equated the ‘but for’ test with the ‘necessary condition’ formulation, now seen in the enacted provision.[175]

After considering alternative tests in ‘evidentiary gap cases’, the onus of proof of causation in those cases and generally, discussed below, and subjective causation cases[176] , the Ipp Panel then considers the ‘second normative question of causation’ and recommends that the legislative statement has two elements — ‘factual causation and scope of liability’.[177]

Within ‘scope of liability’ the Panel notes common law terms and criteria such as ‘real cause’, ‘effective cause’, ‘new acts intervening’, ‘remoteness of damage’ and ‘foreseeability’.[178] These last terms are included despite it being said by the High Court in Chapman v Hearse[179] that ‘reasonable foreseeability’ is a test of the limits of liability not of causation.[180] Further, the Report does not once refer in this discussion to the Wagon Mound No 1,[181] where reasonable foreseeability was laid down for the common law world as a test of remoteness of damage.

Having defined what they see as included in the scope of liability question, the Panel states that:

It is in the context of the second element — namely scope of liability for consequences — that the statement that causation is a matter of commonsense is most often made.[182]

Although it is obvious from a reading of March that the common sense test was seen by the majority of the High Court, unlike McHugh J, as a test of factual causation only, leaving issues of remoteness or ‘scope’ to be determined separately.

Where does this confusion leave us in interpreting the statutory provisions? It follows from what is said above that the provisions are intended, despite the misconstruction quoted in the last paragraph, to change the actual current approach as set out in March and to move ‘common sense’ considerations into a broader ‘scope of liability’ question which will, arguably, leave no room or need for a separate and discrete question of whether or not the damage was too remote because that question and the tests used to answer it are only one of many ways of resolving the scope of liability. This appears to be a statutory enactment of the views of McHugh J in March.

Where does this leave the remoteness principles laid down in the Wagon Mound No 1? It seems strange that an enactment dealing with and headed ‘Causation’ would sweep away a common law principle, in place for 40 years, without expressly saying so and without the preparatory material mentioning this effect. But a statute may impliedly overturn a common law principle and courts are used to determining whether this is the effect of a statute.

The way out of this dilemma may be for the courts to take up the suggestion of the Ipp Report that the provisions should be regarded as only providing a framework in which to resolve cases and that the provisions should be regarded as ‘legislative guidance’ only, which may or may not prove to be helpful. Premier Carr also stated: ‘Its intention is to guide the courts as they apply a common sense approach.’[183] Such a purpose may allow the courts, and indeed make it necessary for them, to continue to refer to the principles set out in previous cases, under several rubrics, as they determine acceptable criteria, not listed in the enactment,[184] for deciding upon the ‘scope of liability’ in a range of circumstances.

It must also be remembered that this provision on causation applies equally to contractual claims for breach of a contractual duty of reasonable care.[185] The same questions of interpretation will arise in respect of the common law principles of causation and remoteness in such claims.

(i) Onus of Proof of Causation

Section 5E provides that in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. This again simply restates the common law, which is that the plaintiff bears the onus of proving, on the balance of probabilities, all the elements of his or her action in negligence.

‘Onus’ in legal terminology generally refers to what is known as the ‘legal’ onus of proof. However, common law cases on a number of factual issues in negligence also show that despite the ‘legal’ onus remaining on the plaintiff throughout a negligence case, a so-called ‘evidentiary’ onus may pass to the defendant, in the sense that if he or she does not answer or disprove an allegation of fact made by the plaintiff, he or she runs the risk that the court may accept the plaintiff’s version of events and infer negligence.[186]

Does s5E prevent a plaintiff from arguing that an ‘evidentiary onus’ has passed to the defendant?

The Ipp Panel recommended this provision to counter the suggestion that the legal onus of proof should shift to a defendant once the plaintiff has established that the defendant was under a duty to take reasonable care to avoid the risk in question and failed to take the required care. This approach has been suggested in cases where several manufacturers or employers exposed the plaintiff to a risk of disease or injury or materially increased the risk. It was an approach espoused by Lord Wilberforce in McGhee v National Coal Board,[187] but quickly denounced by the House of Lords in Wilsher v Essex Area Health Authority.[188] Although this view had some support in Australia, particularly by Gaudron J in Bennett,[189] generally her view is construed and read down as involving only a shift of an evidentiary onus.[190]

The Ipp Panel states[191] that the principle has been ‘referred to with approval by various courts in recent cases’ and that it represents a fundamental change in the traditional law with the potential to expand liability for negligence. This would be correct if Gaudron J and those that followed her had been talking about the legal onus but not the case if they had been referring to the evidentiary onus. There is a significant difference: the passing of an evidentiary onus merely allows a court to infer a conclusion of fact, it does not require it to do so in the absence of further evidence.

It is unfortunate that the Ipp Panel neither drew any explicit distinctions between the legal onus and the evidentiary onus nor gave the names of any of the ‘recent cases’ on which its discussion was based. In the absence of this clarification, it seems that the section should be construed as using the word ‘onus’ in the usual and strict ‘legal’ sense.[192]

More difficult is to work out whether the new provisions, read together, prevent an Australian court from following the case of Fairchild v Glenhaven Funeral Services Ltd[193] in which the House of Lords relaxed the usual requirements of proof of causation in exceptional cases where there is an ‘evidentiary gap’ as to whether the defendant’s negligence caused a material increase in the risk of harm (and in the absence of evidence that it materially contributed to the harm itself). As the Ipp Panel noted, the High Court has not considered such an ‘evidentiary gap’ case.

The Ipp Panel recommended that ‘the detailed criteria for determining the issue [of evidentiary gaps] should be left for common law development’[194] but recommended a series of principles (set out in Recommendation 29). The statutory provisions on causation do not follow the recommendations word for word and are much briefer. If the courts do consider whether facts that do not satisfy the ‘but for’ test should nevertheless be accepted as establishing factual causation in an exceptional case, s5D(2) now requires the court to consider, ‘amongst other relevant things’, which are not listed or suggested, ‘whether or not and why responsibility for the harm should be imposed on the negligent party.’ This may simply be a direction to the court to give reasons for its decision, and it is inconceivable that a court would not do so anyway. But importantly it is left to the common law to develop or continue to develop how it deals with situations where the ‘but for’ test does not provide a satisfactory way of dealing with such situations.

What is unclear is how this provision, s5D(2), sits with s5E on the onus of proof of causation. Section 5 E is absolute in its terms that the onus remains on the plaintiff. Section 5 D (2), particularly in view of the statement quoted above from 7.33, would seem to qualify this in exceptional cases. In his Second Reading speech on 23 October 2002, Premier Carr stated:

…The very limited exception to the ‘but for’ test …was developed by the court for those rare cases, often in the dust diseases context, where there are particular evidentiary gaps. By including this exception in the bill it is not intended that the bill extend the common law in any way. Rather, it is to focus the courts on the fact that they should tread very carefully when considering a departure from the but for test.[195]

One reading of this statement and of the Ipp Report[196] is that in exceptional cases involving an evidentiary gap the court may relax the causation requirements including the onus of proof. This too will be a matter of interpretation for the courts. It is ironic however that while the ‘evidentiary gap’ principles have developed and been critical in the dust diseases cases, as Premier Carr recognises, the civil liability reforms in most jurisdictions do not apply to actions for damages for dust diseases.[197]

6. How Useful Will Recourse be to the Political History, the ‘Travaux Preparatoire’ and Other Extrinsic Materials?

In CIC Insurance Ltd v Bankstown Football Club Ltd,[198] the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ affirmed a view that places the identification of the context of legislation as a necessary tool of statutory interpretation in all cases, not just in cases requiring resolution of some statutory ambiguity. Furthermore, this view recognises that the context of a statute encompasses both the existing law and the mischief to be remedied, as discerned from the range of extrinsic materials that relate to the statute.

…the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy: Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, 315.[199]

Co-existing with the common law principles is s15AB of the Acts Interpretation Act 1901 (Cth), inserted in 1984, which is mirrored in state legislation[200] . Both provide for consideration of a range of extrinsic materials in the task of statutory interpretation.[200]

As a matter of common sense, the usefulness of extrinsic materials often depends on the fullness, accuracy and clarity of their statements and explanations. Whether or not they are reliable as a source of legislative intention also depends on their authorship or provenance. A controversial question in this area is whether the concept of ‘legislative intention’ refers to the subjective intent of the legislators, so that the relevant intention can be gleaned from the statements and debates of individual parliamentarians or government ministers, or rather to some more objective construct of legislative intent.[202]

There are a number of background sources relating to the NSW CLA, which served as a model for legislative changes around the country, although the final legislation in the various states often differs:

i The Ipp Review of the Law of Negligence Report.[203] No state enacts the recommendations of the Ipp Panel in their entirety. Various states change some of the recommended provisions, adopt others word for word and do not adopt others at all.[204] Nevertheless the Ipp Report may provide a useful explanation of what was perceived as the mischief of the law and what the legislative drafters must be taken to have intended. However, a significant
defect of the Ipp Report as a source of information on the existing state of the law or on the mischief to be remedied by the statute is the lack of evidence, authority or sources to support many of its assertions about the practice, content and alleged problems of the current common law.[205] No doubt this was due to the extraordinarily tight time frame imposed on the Ipp Panel and its stated desire not to let the opportunity for legislation to be passed throughout the country to be lost by delay in meeting the schedule,[206]but it does mean that readers will often have to do their own research into the existing state of the law that the recommendations of that the Panel were intended to overcome.
A second problem is the assumptions on which the Ipp Panel was instructed to proceed and the task it was set, that is, to recommend changes to limit liability and the quantum of damages. To a considerable extent this might be seen to foreclose any debate as to the purpose of any recommendation. However, given that in some situations the Panel expressly declines to make a recommendation, for example, to exempt ‘not for profit’ organisations from liability or to introduce proportionate liability for personal injury cases, and in other cases merely and deliberately recommends a re-statement of the common law, it will be necessary to investigate whether any particular recommendation has a purpose of restricting the common law or retaining the status quo. The former cannot necessarily be presumed from the overall purpose of the statute. The second purpose is consistent with giving the legislature the appearance of being busy.
The Report is also, of course, of more use where the state or federal parliament concerned followed the Panel’s recommendation than where it did not. In the latter circumstance, the court will have to rely on other materials. The Second Reading Speech of Premier Carr on 23 October 2002 refers to those instances where the Civil Liability (Personal Responsibility) Bill 2002 follows the Ipp Panel’s recommendation but not to those where it does not. Attorney-General Robert Debus explains in an article in a university law journal that, in one instance, the government made the legislation more restrictive than the Ipp Panel recommended ‘to promote greater certainty or a fairer balance of responsibility’.[207]
ii The Second Reading speech of 23 October 2002 sets out some specific, some broad, some emotive, purposes for the Act: to assist in the reduction of insurance premiums; to wind back the culture of blame; to prevent the Americanisation of our society; to preserve the Australian way of life; to restore personal responsibility.
It also makes some other specific comments which will be useful in relation to particular sections, for example, ‘The bill modifies particular aspects of the common law. It does not establish a complete code’; ‘…it is not intended to extend the common law in any way’ (in relation to dealing with evidentiary gaps in causation cases); ‘…it is to focus the court’s attention that they should tread very carefully when considering a departure from the ‘but for’ test’; ‘…The bill will codify the current law’ relating to inherent risks.
iii Parliamentary debates reported in Hansard. Others have warned of the unwisdom of relying on parliamentary debates as a source of parliamentary intention.[208] Problems include the preference a particular Member of Parliament or a Minister may give to certain interests for a range of political reasons, the views of others that such persons may select to promote, and the special responsibilities that Ministers may have.
iv The Position Paper of the Attorney–General’s Department of New South Wales. This was issued before the final version of the Ipp Report was released on 2 October 2002 and used for the first draft of the second stage Civil Liability (Personal Responsibility) Amendment Bill 2002 which was later changed in many respects as a result of the Ipp Panel’s recommendations. The paper is not as accurate a statement of the existing law or of ‘the mischief’ to be remedied as one would usually find in a carefully researched and carefully drafted report of a law reform commission. It nevertheless provides some insight into what the framers had in mind in relation to some of the provisions, particularly those which do not follow the Ipp Panel’s recommendations. It is particularly relevant for example to the provisions on the liability of public authorities, where its statement as to the limits of the difficult and complex provisions will be illuminative:
These provisions do not affect the ordinary duty of care that authorities owe to members of the public in carrying out their activities. Actions in negligence (as affected by this Bill) will still be possible when authorities cause damage as the result of their activities.[209]
v Explanatory memoranda: unfortunately it seems to be the practice for such memoranda to paraphrase the provisions of a bill but not to explain them. They are often not helpful in determining meaning.[210]
vi In relation to the proportionate liability sections of the Civil Liability Acts around the country, there is much value in looking at the Draft Model Provisions to Implement the Recommendations of the Inquiry into the Law of Joint and Several Liability released by the Treasury and the New South Wales Attorney General’s Department in July 1996, as well as the two reports of the Committee of Inquiry headed by Davis.[211] However, none of the statutes enacting proportionate liability at state or federal level follow those model provisions exactly and some changes are difficult to interpret.[212]

7. Conclusion

The immediate impact of the NSW CLA has been to require the courts to resolve a number of issues as to the meaning and intent of the various statutory provisions.[213] The NSW CLA is so wide ranging and the relationship between the provisions and the common law so complex that it will be some time before a consensus settles on these issues.

An obvious long term effect of the lack of uniformity in the legislative provisions enacted by state legislatures around the country will be the reduction in the extent to which the principles of law and the court decisions of one state will inform the principles and decisions of another state.[214] In addition, the common law of Australia is reduced in content and application. The advantages we have so far enjoyed of having the High Court as a final court of appeal for a ‘common law of Australia’ will be reduced.

Many critical issues and questions in negligence and tort law remain wholly or partly untouched by this legislation and require further development and elucidation by the courts, including:

i The test for the existence of a duty of care in many areas, particularly for
purely economic loss; ii The duty to control or protect a person from the torts of third parties; iii The rationale and incidence of vicarious liability, especially for intentional
torts of an employee or agent;
iv Causation in ‘evidentiary gap’ cases and loss of chance cases;
v The potential for a new tort of invasion of privacy;
vi The intentional torts[215] and the meaning of ‘intent’;
vii The role and incidence of strict liability.

In addition there are several important categories of cases which are expressly excluded from the operation of some or all of the provisions of the NSW CLA, for example, dust diseases cases and smoking or tobacco cases.[216]

Whether or not the statutory enactments on general principles such as causation will have an indirect influence on the development of the common law in those areas which fall outside the direct application of the legislation remains to be seen. Arguably, the express exclusion by the legislature of these categories should be regarded as conclusive that they were not to be affected, yet sometimes this seems paradoxical and against the understanding of members of the legislature. On the broader influence of any legislative policy to be discerned from the Civil Liability Acts, there could be at least two approaches the courts could take: discern some broad legislative policy and community standard that liability in tort should be restricted rather than extended, or, alternatively, take the view that the legislatures had a clear opportunity to restrict tort liability and that the enactments must be read as reflecting precisely how far they wished to go and no further.[217] In any event, the courts would do well to exercise caution in trying to discern any consistent community, legislative or governmental attitudes or policies towards tort reform over a period of time. In 2002 there were strident calls from the insurance industry, professional groups and government to restrict tort liability, while in 2005 there have been equally strong calls, in the context of asbestos claims, to secure and extend the tort liability of corporate defendants.

Even where the Civil Liability Act ‘reforms’ apply, it is difficult to imagine that reference will not be needed to the common law cases which expound, explain and illustrate the principles of law which form the basis of or provide the context for so many of the statutory provisions. The Acts are not codes. It is not always clear whether they intend to ‘cover the field’ on a particular issue or merely provide a framework within which the common law principles continue to operate. In some areas they restate the common law: in those areas the future development of common law principles will be limited, although interpretation of statutory wording may change over the years. In others, the Civil Liability Acts make changes to the common law or build upon a body of law which is not suddenly irrelevant, but which will, however quickly, become obsolete if it is not used. It will be important for advocates and judges to look past the statutory wording to the common law context within which the enactments operate and to promote and restore coherence to the law of negligence.

As for the apparent aim of ‘restoring personal responsibility’ and the other purposes of the legislation, it is to be hoped that the courts do not infer an intention to pursue these purposes at all costs, and certainly not at the cost of promoting a humane and responsible regard for others, and a fair — or as fair as possible under the tort system — approach to compensation for unreasonable infliction of injury.

[*] Associate Professor, Faculty of Law, University of Sydney. An earlier version of this article was delivered as a paper at a conference entitled ‘Working with Statutes’ held by the Bar Association of New South Wales on 18–19 March 2005. I am very grateful for the guidance of Professor Harry Geddes on matters of statutory interpretation and comments by Mr Bret Walker SC on the paper, and for very helpful comments on the draft article by Professor Jim Davis and Professor Harold Luntz.

[1] The term ‘Civil Liability Acts’ refers to the various pieces of state legislation introduced in 2002 and 2003 around the country under various names: Civil Liability Act 2002 (NSW) as amended by the Civil Liability (Personal Responsibility) Act 2002 (NSW); Civil Law (Wrongs) Act 2002 (ACT), Civil Liability Act 2002 (WA), Civil Liability Act 2002 (Tas), Civil Liability Act 2003 (Qld), Wrongs Act 1958 (Vic), Civil Liability Act 1936 (SA), Personal Injuries (Liabilities and Damages) Act 2003 (NT). All legislation enacted in 2002 and 2003 has been subject to frequent amendment since then.

[2] For example corporations law, evidence law, the law of restraint of trade or unconscionable conduct or unfair contracts.

[3] See for example Harold Luntz ‘Reform of the law of Negligence: Wrong Questions – Wrong Answers’ [2002] UNSWLawJl 49; (2002) 25 UNSWLJ 836 and ‘A Personal Journey Through the Law of Torts’ in this volume.

[4] For instance, compensation for injury inflicted by others; corrective justice; deterrence or regulation; allocation of risk or loss based on economic efficiency or enterprise liability.

[5] See Harold Luntz ‘Looking Back at Accident Compensation: An Australian Perspective’ (2003) 34 Vict U of Wellington LR 279.

[6] Note also that in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. McHugh J commented on the possibly increasing weakness of the presumption that a statute is not intended to alter or abolish common law rights unless it evinces a clear intention to do so, in view of the frequency of legislation doing so: at 284.

[7] There are also challenges to the law of Contract because the statute also affects contractual liability. On coherence, see William Gummow, ‘The Common Law and Statute’ in Change and Continuity: Statute, Equity and Federalism (1999) at 26.

[8] See Mason J describing the ideal legislative process in State Government Insurance Commission (SA) v Trigwell [1979] HCA 40; (1979) 142 CLR 617 at 633–634, quoted and discussed in Paul Finn, ‘Statutes and the Common Law’ (1992) 22 UWALR 7 at 14.

[9] James Spigelman, ‘Negligence: The Last Outpost of the Welfare State’ (2002) 76 ALJ 432.

[10] Motor Accidents Compensation Act 1999 (NSW); Health Care Liability Act 2001 (NSW).

[11] The panel appointed by a joint State, Federal and Territory ministerial meeting to examine and review the law of negligence.

[12] Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) (hereafter Ipp Report): < au/content/review2.asp> (15 August 2005).

[13] The Ipp Panel acknowledged that there was a dearth of hard or empirical evidence so the recommendations were ultimately based on the collective sense of fairness of the Panel members, informed by their knowledge and experience, by their own researches and those of the Panel’s secretariat, and by the advice and submissions of those who have appeared before the Panel or who have made written representations to it: id at 1.39.

[14] Roscoe Pound, ‘Common Law and Legislation’ (1908) 21 Harv LR 383 at 404. Compare the more co-operative relationship between parliament and courts in modern day Australia described by Keith Mason, ‘Rights Protected by Statute and by the Courts’ [2003] UNSWLawJl 35; (2003) 26 UNSWLJ 442 at 444.

[15] For academics and students, any course which covered only the common law of torts, would give a very incomplete picture of the current law. I note, on the other hand, that, faced with 50 different states as well as a federal jurisdiction, the leading torts casebook in the United States by Victor Schwartz, Kathryn Kelly & David Partlett, Prosser, Wade and Scwartz’s Torts Cases and Materials on Torts (10th ed, 2000), analyses the common law but often attempts no more than an end note to a chapter warning that attorneys must carefully research state statutes. Perhaps that is a hangover of the judicial, professional and academic distaste for statute law identified by Roscoe Pound back in 1908 in the United States, (ibid), but it may just be a matter of pragmatism. Perhaps also it has come to this in Australia. Interestingly, it was only in the 7th edition of his treatise The Law of Torts in 1987, 30 years after its first edition that John Fleming included a table of statutes.

[16] Robert Carr, NSW, Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5764.

[17] [1932] AC 562.

[18] The High Court of Australia had already exhibited a much more restrictive approach to duties of care in respect of physical injury than in previous decades, see Harold Luntz, ‘Torts Turn Around Down Under’ (2001) 1 Oxford Commonwealth Law Journal 95. Division 2 of Part 1A of the NSW CLA entitled ‘Duty of Care’ in fact deals with the principles relating to the test for negligence or breach of duty and the standard of care. The areas in which the statute restricts the duty of care are in relation to the duties to warn of obvious risks, except in some professional circumstances; duties in relation to the risks of recreational activities; duties of highway authorities; and duties to persons under the influence of alcohol or drugs. There are also immunities from liability for certain persons, for example, volunteers or ‘Good Samaritans’. See at pages see sections 4–5 below and see generally Joachim Dietrich, ‘Duty of Care Under the Civil Liability Acts’ (2005) 13 TLJ 17 for a discussion of the reforms on duty issues around the country.

[19] John Fleming, The Law of Torts (9th ed, 1998) at 581. See also Sally Walker, Media Law: Commentary and Materials (2000) at 3.5. At the time of writing there were well-developed proposals for uniform defamation laws throughout the Australian states and territories, which will legislate on some aspects of defamation law but leave other aspects to the common law.

[20] Fleming notes that the original English Workers’ Compensation Act (1897) was inspired by Bismarck’s historical measure of 1884, id at 575. Australian workers compensation statutes include the Workers Compensation Act 1987 (NSW) as amended, and the Accident Compensation Act 1985 (Vic).

[21] For example Sporting Injuries Insurance Act 1978 (NSW); Victims Support and Rehabilitation Act 1996 (NSW). For further references see Rosalie Balkin & Jim Davis, The Law of Torts (3rd ed, 2004) at para 12.12.

[22] Motor Accidents Compensation Act 1999 (NSW).

[23] For example Accident Compensation Act 1985 (Vic) and see Balkin & Davis, above n21 at Chapter 12.

[24] Peter Handford, ‘Occupiers Liability Reform in Western Australia and Elsewhere’ (1987) 17 UWALR at 182 and see note 28 below.

[25] For example, Companion Animals Act 1998 (NSW); Domestic (Feral and Nuisance) Animals Act 1994 (Vic). For references to legislation in other states see Balkin & Davis, above n21 at para 15.19.

[26] Damage by Aircraft Act 1952 (NSW); Civil Aviation Act 1998 (Cth) as amended; Civil Liability (Carriers’ Liability) Act 1959 (Cth).

[27] Trade Practices Act 1974 (Cth), Part VA.

[28] Id at s52.

[29] But note also an enactment in 1845 which according to Lord Wilberforce imposed fencing obligations on railways but ‘which it seems protects cattle not children’, even after electrification of tracks: Herrington v British Railways Board [1972] AC 911 at 922, quoted in Harold Luntz & David Hambly, Torts Cases and Commentary (5th ed, 2002) at 460 along with other details of legislative reform of occupiers’ liability.

[30] (1846) 9 & 10 Vict c93.

[31] (1847) 11 Vict no 32.

[32] Baker v Bolton (1808) 1 Cam 493; 170 ER 1033; See also Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 174–184 (Samuels J) (hereafter Swan).

[33] Law Reform (Miscellaneous Provisions) Act 1965 (NSW), modelled on the United Kingdom’s Law Reform (Contributory Negligence) Act 1945 (UK) which in turn followed apportionment in maritime law after the Brussels Convention of 1911. See Fleming, above n19 at 306.

[34] Overturning the restrictive law rule of Merryweather v Nixan (1799) 8 Term Rep 186, for example, the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

[35] Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

[36] Law Reform (Miscellaneous Provisions) Acts 1955 (ACT) and 1956 (NT).

[37] [1942] UKHL 5; [1943] AC 92.

[38] [1939] HCA 25; (1939) 62 CLR 1.

[39] Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

[40] Law Reform (Vicarious Liability) Amendment Act 1983 (NSW).

[41] CLM, s120.

[42] Law Reform (Marital Consortium) Act 1984 (NSW). For legislation in other states see Balkin & Davis, above n21 at para 24.3.

[43] Transport Accidents Act 1986 (Vic) s93.

[44] Law Reform Act 1995 (Qld); Wrongs Act 1936 (SA).

[45] Patrick Atiyah, ‘Common Law and Statute Law’ (1985) 48 Mod LR 1 at 6, quoted in Esso Australia v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 60 (hereafter Esso) (Gleeson CJ, Gaudron & Gummow JJ).

[46] Pound, above n14 at 385.

[47] Pound refers to a decision of the United States Supreme Court in Chambers v Baltimore & Ohio RR [1907] USSC 156; (1907) 207 US 142 at 149 refusing to see the ‘universal’ enactment of Lord Campbell’s Act as of equal weight with common law doctrines. Compare Morgan v States Marine Lines Inc [1880] USSC 197; (1970) 398 US 375, cited in Esso, above n45 at [26].

[48] Paul Finn, ‘Statutes and the Common Law’ (1992) 22 UWALR 7 at 20.

[49] The task of the court is to construe the legislation in its natural and ordinary meaning, having regard to the context and the purpose of the enactment as informed by the history of the enactment and the state of the law when it was enacted: McHugh J in Gifford, above n6 at 341, Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 299. See generally Patrick Parkinson, ‘Interpreting Statutes’ Tradition and Change in Australian Law (3rd ed, 2005) at 243 and cases cited therein; Dennis Pearce & Robert Geddes, Statutory Interpretation In Australia (5th ed, 2001). Sometimes however the courts may construe one of a recognised category of statutes by ‘reference to general principles rather than by a textual analysis of individual enactments’: McHugh J in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 619, with respect to a statute giving protection from liability to a person carrying out a public duty.

[50] (1999) 197 CLR 1 (hereafter Astley).

[51] (1999) 197 CLR 1. See also Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31; (2001) 207 CLR 165.

[52] For example, Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW). See now ss8 and 9, Law Reform Miscellaneous Provisions Act 1965 (NSW). See also for references to legislation in other states Balkin & Davis, above n21 at para 10.15, footnote 92.

[53] [1955] HCA 1; (1955) 92 CLR 200.

[54] [1955] HCA 1; (1955) 92 CLR 200 at 207 (Dixon, McTiernan, Webb Fullager & Taylor JJ).

[55] [1966] HCA 3; (1966) 114 CLR 213.

[56] See below Section 4.

[57] Gifford, above n6.

[58] For example, see Gummow J in Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 19 IPR 44.

[59] [1939] HCA 25; (1939) 62 CLR 1 (hereafter Chester).

[60] Law Reform (Miscellaneous Provisions) Act 1944, s4 (hereafter the 1944 Act). This legislation was followed in the Australian Capital Territory, Law Reform (Miscellaneous Provisions) Act 1955 (Act), s23, and the Northern Territory, Law Reform Miscellaneous Provisions) Act 1956 (NT), s24, in 1955 and 1956 respectively.

[61] [1942] UKHL 5; [1943] AC 92 (hereafter Bourhill).

[62] With extended meanings given to the words ‘parent’ or ‘spouse’ in the legislation.

[63] Although without a definition of ‘nervous shock’ it was left to the common law to construe this phrase and it was considered that by retaining the word ‘shock’ parliament intended to refer only to illness caused by sudden events not long term problems: Chiaverini v Hockey (1992) ATR 81–223.

[64] [1984] HCA 52; (1984) 155 CLR 549 (hereafter Jaensch).

[65] [1982] UKHL 3; [1982] RTR 209.

[66] There were dicta in Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153 at 159–160, Mt Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 408 and in several New South Wales Court of Appeal cases Coates v Government Insurance Office of NSW (1995) 36 NSWLR 1, FAI General Insurance Co Ltd v Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261.

[67] (NSW District Court, Naughton DCJ, 24 August 1999).

[68] [2002] HCA 35; (2003) 211 CLR 317 (hereinafter Annetts).

[69] Id at 332–334 (Gleeson CJ), 337–338 (McHugh J).

[70] Schedule 3 of the Civil Liability (Personal Responsibility) Act 2002 (NSW) repealed Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) which provided for a statutory action for nervous shock. Note however in respect of intentional injury Clause 11 of Schedule 1 of the Civil Liability Act 2002 as amended provides that Part 3 of the 1944 Act ‘continues to apply despite its repeal [sic]’ in relation to acts done with intent to cause injury or death etc as set out in ss3B(1)(a).

[71] Jaensch, above n64 at 602. This view was rejected in FAI General Insurance, above n66 but was applied in Tasmania: Klug v Motor Accidents Insurance Board (1991) ATR 81–134. Note that in New South Wales this common law basis for recovery may continue to be important as the drafter of the NSW CLA Part 3 does not seem to have had this situation in mind but has not excluded it.

[72] ‘Mere bystanders’ or witnesses, whom the NSW CLA now recognises in s30 (2)(a), may thus be better off than at common law which has so far refused to recognise a duty Bourhill, above n61, Alcock v Chief Constable of Yorkshire [1992] 1 AC 390 at 403 and 416. On the other hand, parents and spouses of negligently killed or injured victims are now clearly worse off than under the 1944 Act which relieved them of the need to establish that the defendant owed them a separate duty of care in addition to a liability to the victim. They now, like everyone else, have to show that they were owed a duty of care. Perhaps this is fair given the increase in the range of nominate medical conditions recognised since that time and the difficulty of deciding if they amount to an ‘illness’, but in the absence of empirical data about the number and range of verdicts or settlements of nervous shock claims by parents or spouses, it is hard to see that we are better off making such claimants go through the legal hoops of establishing a duty of care if they are proved to have suffered a psychiatric illness following the negligently inflicted death of a child or spouse. A more appropriate enactment, which might head off nervous shock and resulting claims, would be a modest bereavement payment as in the United Kingdom, Fatal Accidents Act 1976 (UK) s1A. Other classes of persons now worse off than at common law are the rescuer or fellow employee (as to which see Chadwick v British Transport Commission [1967] 1 WLR 912 but compare White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455; and Mt Isa Mines Ltd, above n66 respectively) who is called to the scene of the accident after it occurs, and in the case of a rescuer is exposed to some danger. See Balkin & Davis, above n21 at 254–262 on the legislation and common law in all states.

[73] Brennan J in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267. Compare Kirby P with Samuels & McHugh JJ in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26. See also Samuels J in Swan, above n32.

[74] Michael McHugh, edited extract of speech to Australian Bar Association, Florence, July 2004, published in The Australian Financial Review, 23 July 2004.

[75] Kylie Burns, ‘The Way the World Is: Social Facts in High Court Negligence Cases’ (2004) 12 TLJ 215.

[76] Atiyah, above n45 at 6.

[77] Esso, above n45.

[78] [1976] HCA 63; (1976) 135 CLR 674 (hereafter Grant).

[79] [1998] FCA 144; (1998) 81 FCR 360 at 373.

[80] Ibid.

[81] Esso, above n45 at 62.

[82] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 653.

[83] MoorgateTobacco Co Ltd v Phillip Morris Ltd [No 2](1984) [1991] HCA 48; 174 CLR 379.

[84] R v L [1991] HCA 48; (1991) 174 CLR 379.

[85] [2005] HCA 12; (2005) 214 ALR 92 (hereafter D’Orta-Ekenaike).

[86] Id at [48]–[54] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

[87] [2001] HCA 29; (2001) 206 CLR 512.

[88] [1997] HCA 39; (1997) 188 CLR 313 and (2000) 205 CLR 166 respectively.

[89] [2004] NSWCA 93 (hereafter Harriton). This case and the recent ‘wrongful birth’ cases are discussed by Stephen Todd in this volume.

[90] Harriton, above n89 at [322], and [337].

[91] Id at [164]. Mason P noted particularly that Parliament had ‘deliberately stepped back from the present issue’ when it legislated in respect of ‘wrongful birth’ claims and went on: ‘I see no pattern or guidance in the spate of statutory modifications operating in areas other than the one presented for determination in these appeals’.

[92] D’Orta-Ekenaike, above n85 at [53] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

[93] See Tambree v Travel Compensation Fund (2004) Aust Contract R 90–195; Rufo v Hosking [2004] NSW 391; Ruddock v Taylor (2003) NSWSC 269.

[94] [1991] HCA 12; (1991) 171 CLR 506 (hereafter March).

[95] [1992] HCA 27; (1992) 176 CLR 408 (hereafter Bennett).

[96] Especially Jane Stapleton, ‘Causation and the Scope of Liability for Consequences’ (2003) 119 LQR 388, cited in the Ipp Report, above n12 at para 7.26, footnote 6.

[97] D’Orta-Ekenaike, above n85 at [358] (Callinan J).

[98] On legislative influence, see Peter Strauss, ‘On Resegregating the Worlds of Statute and Common Law’ (1994) Supreme Court Review 429 at 437 cited in Gummow, above n7 at 15.

[99] CLA, s5A.

[100] In addition to that discussed above in relation to recovery of damages for mental harm.

[101] See Stephen Sugarman, ‘Tort Reform through Damages Law Reform’ in this volume.

[102] See CLA, Part 2.

[103] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. See discussion of this test in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, quoting Sidaway v Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871 at 881 at 484 (Scarman, LJ). The new test in s5O of the NSW CLA is described as ‘modified’ because the wording of the section differs from the Bolam test as described in Sidaway.

[104] CLA, s50.

[105] CLA, Part 9.

[106] Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258; compare NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511.

[107] See CLA s3C. See also Myles McGregor-Lowndes & Linh Nguyen, ‘Volunteers and the New Tort Law Reform’ (2005) 13 TLJ at 41.

[108] CLA, Part 4.

[109] Barbara McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust Bar Rev 29.

[110] CLA, ss67–69. This provision is somewhat of a ‘sleeper’: we will not know what impact it will have until people and institutions begin to use or offer apologies, either from conscience or as a pragmatic strategy to mend fences and head off a desire to litigate, if they are confident both that the apology cannot be used against them in evidence or that it will not encourage blame.

[111] Prue Vines, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ in this volume.

[112] CLA, Part 6. For a recent application see Russell v Edwards, (NSW District Court, Sidis J, 23 November 2003). I am indebted to Andrew Stone, for drawing my attention to this decision.

[113] Let us hope that the young boy who considerately leant out of the tram window, in breach of a by-law, to be sick, fatally striking his head against a too-close steel standard, would be treated sympathetically if injured today Henwood v Municipal Tramways Trust (South Australia) [1938] HCA 35; (1938) 60 CLR 438.

[114] Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, compare Jackson v Harrison (1978) 138 CLR 438. Again I am indebted to Andrew Stone for pointing this out. Arguably this situation was not that which the provision was directed towards: rather it may have been directed towards a person using criminal force in excessive self-defence.

[115] CLA, Part 7.

[116] CLM, s21. But such damages were rarely awarded in negligence actions involving merely negligent conduct. Compare Gray v Motor Accident Commission (1998) 196 CLR 1, a running down case where the conduct was intentional and the injury direct but the plaintiff nevertheless sued in negligence and exemplary damages awarded. For statutory provisions in motor and industrial accident claims see Luntz & Hambly, above n29 at 8.1.10.

[117] CLA, Part 8. I know of no case in Australia where a Good Samaritan has been held liable in negligence for personal injury, but see Luntz & Hambly, above n29 at 7.7.11 in respect of two cases concerning property damage where a duty of care was not denied and of other stautory protection, particularly for emergency services.

[118] CLM, s5S. See also sC5T in relation to contributory negligence in Compensation to Relatives Act 1897 (NSW) claims.

[119] [1997] HCA 52; (1997) 149 ALR 25.

[120] Dow Jones v Gutnick (2002) 210 CLR 575.

[121] CLA, s5I.

[122] CLA, s5(2).

[123] [1967] HCA 39; (1967) 116 CLR 383 (hereafter Rootes).

[124] CLA, s5R.

[125] CLA, s5B.

[126] See under Heading 5.A. below.

[127] Fleming, above n19 at 302.

[128] See also above under Heading 4.B.

[129] CLA, S42(b). See Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 469 (Mason J).

[130] CLA, s42(c). See generally Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 (hereafter Romeo).

[131] Brodie, above n87.

[132] CLA, s45.

[133] For example, s44 which makes liability for failure to perform a regulatory function depend on whether the plaintiff had standing to compel performance of the regulatory function.

[134] See below n210 on the indications of legislative intent as to these provisions.

[135] CLA, s5B which confusingly is to be found under the heading of ‘Duty of Care’.

[136] [1980] HCA 12; (1980) 146 CLR 40 at 47–48.

[137] [1856] EngR 223; (1856) 11 Exch 781.

[138] (1947) 159 F 2d 169. 139 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1966] UKPC 1; [1967] 1 AC 617.

[140] [2005] HCA 4; (2005) 213 ALR 249 at para 79–80.

[141] Fleming, above n19.

[142] Ipp Report, above n12 at para 7.15.

[143] Id at 105.

[144] Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333.

[145] See also Burns, above n75 at 215.

[146] Balkin & Davis, above n21 at 274.

[147] Carr, above n16

[148] CLA, s5N.

[149] CLA, s68B, inserted by the Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth). (Query whether s5 N imports or overrides the common law requirements that the terms must be brought to the attention of the contracting party before entering the contract.) See Elisabeth Peden & John Carter ‘Consumers Beware; the Loss of Contractual Protection for Recreational Risks (2004) 1 Australian Civil Liability 33.

[150] Note that liability for injury to a child would usually be provided for in a contract with the child’s parents, often requiring parents to indemnify the provider against a claim by the child.

[151] CLA, s5F.

[152] Romeo, above n132. There is some legitimate debate as to whether the ‘scope’ of a duty should be considered by the court as a duty issue or as an issue more relevant to deciding whether there has been a breach of duty, ie what reasonable care in the circumstances required of a defendant.

[153] The High Court has reserved judgment in two cases which will deal with the relevance of the obviousness of a risk to the duty of care and breach of duty questions: Vairy v Wyong Shire Council and Mulligan v Coffs Harbour City Council and Ors, heard on 7 and 8 April 2005. [2005] HCA Trans 195, [2005] HCA Trans 196.

[154] For example, the Rogers v Whitaker circumstances, above n104.

[155] See above n155.

[156] Particularly CLA, s5L.

[157] Ipp Report, above n12.

[158] Robert Debus, ‘Tort Law Reform in New South Wales; State and Federal Interactions’ [2002] UNSWLawJl 47; (2002) 25 UNSWLJ 825 at 829.

[159] Widely defined in s5K to include any activity engaged in at a place where people ordinarily engage in a recreational activity.

[160] Debus, above n158.

[161] Note that a defendant is not entitled to rely on a risk warning if the harm resulted from the contravention of a written law, s5M (7). But note also that there is no such qualification to s5L relating to dangerous recreational activities.

[162] The operation of this section in relation to children and non-English speakers is especially harsh. The provision that a warning to the parent will be effective against the child was justified by Premier Carr and others as being that the government did not see why recreational providers should have to take better care of the child than the child’s parents would take: NSW Legislative Assembly (Hansard) 23 October 2002. This seems odd given the greater expertise and experience that one would reasonably expect the provider to have over that of many parents. And in a country where there is a large migrant population with varying English skills and a large tourist industry intent on capturing tourists from non-English speaking neighbours the failure to advert to the needs of foreseeable groups in the community, such as blind people or non-English speakers, as the common law has done at least since Glasgow Corp v Taylor [1921] UKHL 3; [1922] 1 AC 44 at 67 (Sumner LJ), applied in Haley v London Electricity Board [1964] UKHL 3; [1965] AC 778, is regrettable.

[163] CLA, s5K.

[164] If the negligence is identifiable in advance For example, a failure to check or maintain equipment or to check weather reports then possibly the situation may be different as the dangerous activity may be classified as ‘canyoning with unchecked equipment’ instead of just ‘canyoning’. It is hard to imagine a court giving the NSW CLA this operation, particularly as it leaves the defence of voluntary assumption of risk to cover situations where the plaintiff is aware of particular risks.

[165] CLM, s5M(5).

[166] An interesting question is whether Swain, above n140 would necessarily have a different outcome if governed by the Civil Liability Act but with the same evidence adduced. For the reasons I have given my tentative answer is that it would not. In that case the plaintiff seemed to base his case on the alleged representation made by the placing of the flags on the beach that the area was safe to swim and to dive in. It was the placing of the flags that was alleged to be negligent, not a failure to warn or a failure to prevent an obvious risk.

[167] March, above n94.

[168] March, above n94 at 515 (Mason CJ), quoting Reid LJ in Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663, at 681, and 523 (Deane J).

[169] March, above n94 at 523 (Deane J).

[170] March, above n94 at 516 (Mason CJ).

[171] Like having a head as a precondition to being decapitated! See March, above n95 at 523 (Deane J).

[172] March, above n94 at 534.

[173] March, above n94 at 530–531.

[174] Bennett, above n95, Chappel v Hart (1998) 195 CLR 232 (hereafter Chappel); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (hereafter Rosenberg).

[175] Ipp Report, above n12 at 7.26.

[176] In respect of which the NSW CLA makes an important provision s5D(3).

[177] Ipp Report, above n12 at 7.42.

[178] Note also Recommendation 29 (b) (ii), which includes ‘remoteness of damage’ in its description of ‘scope of liability’.

[179] [1961] HCA 46; (1961) 106 CLR 112 at 121.

[180] Although it is hard to ignore the role of foreseeability when determining liability for the intervening conduct of third parties where liability may depend on whether it is the very kind of thing likely to happen. See March, above n94 at 518 (Mason CJ).

[181] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) [1961] UKPC 1; [1961] AC 388.

[182] Ipp Report, above n12 at 7.43.

[183] Carr, above n16.

[184] But listed in Recommendation 29 (ii) (b) of the Ipp Report on which the enactment was based.

[185] NSW CLA, s5A.

[186] For example, in cases where the plaintiff relies on the maxim res ipsa loquitur: see Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 132 [22]. This also seemed to occur recently in Swain, above n140 where although the plaintiff did not provide evidence of what precautions the defendant could or should have taken to avoid the risk of injury to the plaintiff, on the question of whether he had a legal onus of proof, a majority of the High Court (Gleeson CJ, Gummow and Kirby JJ) did not upset the jury’s finding of negligence. Compare the judgments of McHugh and Heydon JJ.

[187] [1972] UKHL 7; [1972] 3 All ER 1008 at 1012.

[188] [1987] UKHL 11; [1988] AC 1074.

[189] Bennett, above n95 at 420–1. The Ipp Panel noted that the principle set out by Gaudron J has also been cited with approval by Gummow J and Kirby J in Rosenberg, above n174 at 461 and in the problematic case of Chappel, above n174 at 257 and 273, but arguably it was obiter dicta in both those cases, or was merely part of the common sense reinforcement of the ‘but for’ test. See also now Chester v Afshar in [2004] UKHL 41; [2005] 1 AC 134.

[190] See Luntz & Hambly, above n29 at 4.1.14 and the authorities discussed in 4.1.11.

[191] Ipp Panel, above n12 at 7.36.

[192] This certainly seems to be the sense of id 7.36.

[193] [2002] UKHL 22; [2002] 3 WLR 89.

[194] Ipp Report, above n12 at 7.33.

[195] Carr, above n16.

[196] Id at 7.36 and 733.

[197] CLA, s3B(1)(b).

[198] (1997) 141 ALR 618 at 634–635, quoted in Robert Geddes, ‘Purpose and Context in Statutory Interpretation’, paper delivered at Bar Association of New South Wales conference, ‘Working With Statutes’, March 18 and 19, 2005, Sydney at 9.

[199] Ibid.

[200] Interpretation Act 1987 (NSW), ss 33,34. See generally Robert Geddes, ‘Purpose and Context in Statutory Interpretation’, paper delivered at Bar Association of New South Wales conference, ‘Working With Statutes’, March 18 and 19 2005, Sydney at 7.

[201] See also Patrick Parkinson, ‘Interpreting Statutes’ Tradition and Change in Australian Law (3rd ed, 2005); Johan Steyn, ‘The Intractable Problem of Interpretation of Legal Texts’ [2003] SydLawRw 1; (2003) 25 Syd LR 5 at 8.

[202] Johan Steyn, ibid.

[203] Ipp Report, above n12.

[204] See useful summary by Prue Vines, ‘Faith, Hope and Personal Injury: The Ipp Report and the Civil Liability Acts’ (2004) 1(1) Australian Civil Liability Newsletter, Lexis Nexis Butterworths at 1.

[205] See for example paras 10.3–10.8; or para 11.12: ‘courts often seem to think…’

[206] Ipp Report, above n12 at para 1.36.

[207] Robert Debus, above n158 at 13.

[208] Steyn, above n201.

[209] Attorney General of New South Wales, Position Paper on Civil Liability (Personal Responsibility) Bill 2002 at 44.

[210] For example, see the ‘Explanatory Memoranda Relating to the Corporate Law Economic Reform Program’, Chapter 3 issued by Treasury on reforms introducing proportionate liability into federal statutes.

[211] Jim Davis, Inquiry into the Law of Joint and Several Liability: Report of Stage 1 (1994); Jim Davis, Inquiry into the Law of Joint and Several Liability: Report of Stage 2 (1995).

[212] For example, the addition of the words ‘or jointly’ to the definition of ‘concurrent wrongdoers’ in CLA s34(2) makes application to cases of joint liability under contract problematic.

[213] See for example the recent case of McCracken v Melbourne Storm Rugby League Football Club and Ors (2005) NSWSC 107, which dealt with the meaning of s3B (1) (a) of the CLA.

[214] Even where sections of one state act mirror a section in another state act, each will have to be interpreted in the context of the whole statute for that state.

[215] CLA, s3B(1)(a).

[216] For example, see CLA, s3B(1).

[217] See the contrasting views expressed in the New South Wales Court of Appeal in Harriton, above n89.

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