Introduction:
On 9 April 2003 the Governor in Council gave assent to the Bill which became the Civil Liability Act 2003 (Qld) (“the CL Act”). Notwithstanding that date many, but not all of the provisions thereof1 operated retrospectively in respect of a cause of action where the “breach of duty” happened on or after 2 December 2002. These include many liability provisions2, provision for assessment of general damages3 and provision for explanation of economic awards.4 Some provisions were unconditionally retroactive.
The sentinel events which inured the CL Act, and analogues thereof across the states and territories along with cognate Commonwealth legislation, were threefold:
- the insurance crisis of late 2001. Many insurers had reduced the extent of the cover they were prepared to offer or simply refused to offer certain types of cover. Communities, businesses and individuals were confronted with the reality that their reliance upon insurance and the transfer of risk was in jeopardy.
- the appointment of the panel of experts by the Standing Committee of Attorneys General and the Council of Australian Governments. What was sought was an investigation, assessment and report upon options for making changes to the law relating to negligence for the purpose of halting and reversing the shrinking pool of insurers and reasonably priced insurance products.
- despite the first recommendation of the resulting Ipp report5 that all of its recommendations be encapsulated within uniform state legislation and given the title “Civil Liability (Personal Injuries and Death) Act”, and that the legislation solely deal with claims for personal injury and loss, each state and territory, Queensland being no exception, decided to enact their own legislation. Moreover, such legislation extended to claims for all types of harm, including that for property and economic harm.
With one exception, the CL Act has undergone modest amendment in its decade long life. The salient amendment occurred in 2005 with the wholesale replacement of the unproclaimed provisions of Chapter 2, Part 2 thereof, concerning proportionate liability. Those new provisions operated in respect of a cause of action where the relevant breach of duty occurs on or after 1 March 2005.6
Although not an amendment to the CL Act per se, the other major advance which occurred was that many of the mainstream substantive law provisions of the CL Act were enacted by amendment to the Workers’ Compensation & Rehabilitation Act 2003 (Qld) (“the WCR Act”) operative in respect of causes of action for employer liability where the cause of action was complete on or after 1 July 2010.7
Has the CL Act, and cognate WCR Act, measured up tolerably well? Have the prospects of plaintiffs been diminished to some degree, in contrast with the previous common law and like jurisprudence? Have practitioners managed to cope without too much difficulty?
The answer to each question, in my opinion, is “yes”. The legislation has become a template for assessment, pleading and adjudication of any cause of action for breach of duty.
There is unlikely to be any going back. Governments of both political persuasion, in Queensland and interstate, have no appetite for the perceived uncertainty associated with the previous jurisprudential regime.
Moreover, if anything, the political fight which may ensue is likely to lie in the other direction; the politicians are more likely to make the provisions more rigorous for proof of liability further constrained, or perhaps even curtail the right to sue for personal injury and entrench the proportionate liability provisions. I disagree with that approach but reality ought not be ignored.
With those matters in mind I address herein what I consider to be the salient impact of the CL Act insofar as they have emerged in practice.
Reach of the CL Act:
I am fortunate to practice across a number of spheres of civil litigation. For the first five years or so of the life of the CL Act, the commercial lawyers who briefed me or with whom I was associated often derided my suggestion that such Act resonated far more in commercial litigation for breach of duty, in particular in claims for professional negligence. In the last few years th
ere has been an increasing recognition that that proposition is probably sound. Noteworthy in this regard, in particular, are the CL Act provisions pertaining to causation (s 11), professional obligation exemption (s 22) and proportionate liability (Chapter 2, Part 2).
There has developed a steady appreciation by practitioners of both the reach, and exception to operation of the CL Act. Confronted by many of the restrictions which the Act entails, one of the strategies practitioners have acquired8 is the identification of alternative causes of action for pursuit of their client’s cause which may take them outside the Act.
In Gibbings-Johns v Corlis9, the Queensland Court of Appeal spoke of the varying breadth of the provisions of the CL Act:
[36] The long title of the Civil Liability Act is “An Act to reform the law of civil liability for negligent acts, and for other purposes.” Subject to s 5, which is not presently relevant, the Act applies to “any civil claim for damages for harm”. The Act’s definition of “claim”, “damages” and “harm” are wide and, as a result, many of the Act’s provisions extend beyond claims for damages for personal injury or death resulting from negligence. For example, Ch 3’s provisions about the assessment of damages for personal injury would appear to apply to a wide variety of causes of action, including intentional torts, subject to the operation of federal law. However, a number of the provisions of Ch 2 that deal with civil liability relate to particular types of claim.
[37] Many of the Act’s provisions are based upon the recommendations of the Review of the Law of Negligence chaired by the Honourable Justice David Ipp, commonly known as the Ipp Report. It recommended legislation in respect of “any claim for damages for personal injury or death resulting from negligence, regardless of whether the claim is brought in tort, contract, under statute or any other cause of action”. The word “negligence” was used to describe a failure to exercise reasonable care and skill.
One of the important points identified in the above extract is that, when it comes to a claim for personal injury, the damages provisions in Chapter 3 apply, albeit “subject to the operation of federal law”. Thus Chapter 3 applies whatever the cause of action pleaded (eg, nuisance, assault and battery).
Under federal law the principal avenue for prosecution of a claim for damages was that stipulated in respect of the quality of “services”. Prior to 1 January 2011 s 74(1) and (2) of the Trade Practices Act 1974 (Cth) made provision therefor. From that date such provision was contained in ss 60 and 61 of the Australian Consumer Law (“the ACL”) which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). In Queensland the ACL was adopted by s 15 of the Fair Trading Act 1989 (Qld) for matters outside Commonwealth constitutional power.
The ability to pursue such federal claim was constrained in respect of contracts entered into after 13 July 2004 by the enactment of s 74(2A). The analogue of that provision in the ACL is to be found in s 275, albeit it ought be noted it only applies in respect of the statutory “guarantee” enacted by s 60.
As a consequence of the enactment of these latter provisions, the CL Act will apply to the causes of action mounted under TPA s 74(1) and ACL s 60. The decision of the High Court in Insight Vacations Pty Ltd v Young10 affords some relief in respect of operation of some CL Act provisions but very little. That case concerned the operation of a contract exemption provision of the NSW Ipp legislation which provision has no analogue in the CL Act.
Having regard to the authorities which have been decided since the enactment of the CL Act, and in light of the above, the CL Act does not apply (at least with respect to the liability provisions thereof) to the following causes of action, none of which entails a breach of “duty of care”:
- strict torts such as assault and battery.11
- nuisance.12
- contravention of each statutory “guarantee” pertaining to goods under ss 51-59 of the ACL.
- contravention of the statutory “guarantee” under s 61 of the ACL.
- contravention of a prohibition of misleading or deceptive conduct or representation, in either case in trade or commerce, such contravention provided for in ss 18, 29 and 30 of the ACL.
- strict liability for a defect in manufactured goods under ACL Pts 3-5.
- statutory liability under the Civil Aviation (Carriers Liability) Act 1959 (Cth).
Breach
When giving consideration to pleading, proving or arguing a case for breach of duty of care (whether owed in contract or in tort), practitioners must have express regard to the matters predicated in s 9, guided also by the principles in s 10 of the CL Act.
In truth, the better view is that, but for the enactment of a provision requiring the risk which crystallises as having been one which looked at prospectively (not retroactively) was “not insignificant”, the Act is properly construed as essentially enacting in statutory form the common law test of breach of duty.13
There has been very little if anything expressed at appellate level in Queensland apropos s 9. That was remedied recently in Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd.14 That was an aerial spraying case, the loss being economic in character. Breach was unsuccessfully challenged on appeal. Fraser JA wrote for the court:
[22] For claims of the present kind, the considerations to which the plurality referred in Burnie Port Authority v General Jones Pty Ltd as justifying variations in the degree of care required to meet the standard of reasonable care are now reflected in s 9(1)(c) and, particularly, ss 9(2)(a) and (d), of the Act, but it remains necessary for a plaintiff to demonstrate that the criteria in ss 9(1)(a) and (b) are fulfilled. In Adeels Palace Pty Ltd v Moubarak the High Court emphasised the centrality of the provisions of the very similar Civil Liability Act 2002 (NSW) to questions of breach of duty (and causation). It was accepted for the purposes of argument in that case that there was a risk of which the defendant knew or ought to have known and that the relevant risk “was not insignificant”. The question was whether a reasonable person in the position of the defendant would have taken the precautions that the plaintiffs alleged should have been taken under ss 5B(1)(c) and 5B(2), provisions which are similar to s 9(1)(c) and s 9(2) of the Act. The High Court observed that the relevant questions were to be answered, prospectively, not with the wisdom of hindsight … they were to be assessed before the function [in which the plaintiffs were injured] began, not by reference to what occurred that night.
and that;
The points to be made that are of general application are first, that whether a reasonable person would have taken precautions against a risk is to be determined prospectively, and secondly, that the answer given in any particular case turns on the facts of that case as they are proved in evidence.
[23] The Act does not codify the common law but its provisions must be applied in all cases in which they are applicable. The construction of the New South Wales provisions similar to ss 9(1)(a) and (b) of the Act was not in issue in Adeels Palace Pty Ltd v Moubarak but the question whether a risk was not insignificant and foreseeable in terms of those provisions must also be determined prospectively. The trial judge did not find otherwise, but it is in issue whether the trial judge applied the statutory criteria in finding that the appellants breached their duty of care to the respondent.
…
[26] The respondent referred to Chesterman J’s statement in Pollard v Trude that the replacement in s 9(1)(b) of “not insignificant” for the common law formulation of “not farfetched or fanciful” added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the “not insignificant” test must be applied instead of the somewhat less demanding test of “not far-fetched or fanciful”.
As that case makes plain, the matters in s 9(1) are matters which must be proved by the party bearing the persuasive onus, namely the plaintiff, in order to make out a prima facie case for breach of duty. There then follows, in s 9(2) a series of considerations, not exclusive in character, upon which breach of duty then falls to be evaluated and finally adjudicated.
This was addressed usefully, again recently, by the New South Wales Court of Appeal in respect of the NSW Ipp legislation analogue of s 9(2), namely s 5B(2).
In Sibraa v Brown15, the court wrote:
[73] The four factors listed in s 5B(2) are not necessarily exhaustive of the matters which might enter into the question of whether a reasonable person would have taken precautions against a risk of harm. The subsection itself recognises this, by the parenthetical phrase “amongst other relevant things”. However, no factors that do not fit within the four listed ones are said to be applicable in the present case.
[74] Even when the four factors, and any other ones that might be relevant, have been taken into account, there remains an evaluative task of weighing up the relevant factors to conclude whether in the circumstances, a reasonable person in the Appellant’s position would have taken the precautions against a risk of harm that he has in fact failed to take.
Thus practitioners have come to know that ss 9 and 10 (in particular the former) falls for address essentially “a checklist” of matters for treatment in proof of the causation. The matters in s 9(1) must be satisfied. The matters in s 9(2) then fall for proper consideration, among other relevant matters, to adjudicate breach.
Liability of statutory authorities:
The CL Act, like its interstate analogues, introduced specific provisions pertaining to the liability of statutory authorities. The salient provision is s 36, but worthy of note also is the introduction of a modified form of road authority exemption under s 37. Each provision has a fair way to travel still in terms of final interpretation. I confine myself here to s 36.
The history of the decided cases to date dictates that any plaintiff seeking to sue a statutory authority for damages for negligence must ordinarily surmount a higher hurdle than obtained under the common law pertaining to breach of duty.
That arises principally due to the wording of CL Act s 36:
36 Proceedings against public or other authorities based on
breach of statutory duty
(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
While this is not the occasion to descend in detail to what is a complex compartment of the CL Act, two matters ought be noted. First, the better view is that s 36 imposes an obligation upon a plaintiff to navigate (both as a matter of pleading and proof) the provisions thereof. Second, what must be proved is not ordinary negligence but rather than that the level of unreasonableness in question was one which no reasonable authority would have engaged in.
A useful statement of the impact of s 36, by reference to the NSW analogue thereof in s 43A of the NSW Act, was undertaken in Warren Shire Council v Kuehne16:
[117] … The following propositions, however, may be deemed appropriate for the determination of the issue in this appeal:
(1) The language of s 43A states a precondition for the existence of civil liability in the context with which it is concerned. Once it is found or assumed, by reference to the pre-existing common law of negligence, that a duty of care exists and there has been a failure to exercise reasonable care, s 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established.
(2) The origin and legislative history of s 43A make it plain that language modelled on that of Wednesbury unreasonableness was adopted from Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223) with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power.
(3) Notwithstanding the difficulty of transposing the concept of Wednesbury unreasonableness , derived as it is from administrative law, to the law of negligence, the concept now has statutory force in s 43 and s 43A and is to be applied to an authority’s act or omission.
(4) The words “could properly consider” require a determination to be made from the perspective of the authority, but with an objective element. (As I see it, the objective element is particularly important in examining an allegation that the Council has negligently failed to exercise a power available to it.)
(5) Although the concept of Wednesbury unreasonableness has been expressed in varying terms, some extreme, some more moderate, its transposition into the law of civil liability requires that the unreasonableness must be at a high level. The language of s 43A (“could properly consider” with the restraint of “could” moderated by “properly”) necessarily requires questions of degree and judgment.
Causation:
Despite the provision in CL Act s 7(5) that the Act “is not of a codification of the law”, there is no doubt that in many respects, causation in ss 11 and 12 being the exemplar, that is precisely what occurred.
Section 12, in truth, has proved unremarkable, merely providing that the persuasive onus of proving causation at all times remains with the plaintiff. That, on any view in my opinion, does not disturb the existing law which allows of the shifting of an evidentiary onus to the defendant in certain cases.17
Section 11 provides a new protocol for proof of causation. Causation falls to be satisfied either under subs (1) or alternatively subs (2).
Whereas at common law causation fell to be determined by reference to, but not exclusively, proof of “but for” causation, with concurrent consideration of “normative” or “policy” factors, subs (1) now requires proof of both “but for” causation and also that “it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability)”. Failing that a claimant is forced to navigate the difficulty of proof under subsection (2).
It is important to note that s 11, like its interstate analogues, has been construed as stating a test which brings to book not just the above elements of causation per se but also intervening and successive causes, foreseeability and remoteness of damage.18
Unequivocally it remains the law that neither proof of an increase in risk by dint of the breach in question, or the existence of a possible causal nexus, will suffice to prove causation.19
The principles of causation arising under Ipp legislation have been the subject of consideration in the High Court of Australia on several occasions, namely in Adeels Palace Pty Ltd v Moubarak20 and Strong v Woolworths Limited.21 What those cases point up is that the statutory test does seem to accommodate, still, a “commonsense” approach but within the above statutory requirements.
In Strong the High Court wrote of the NSW analogue of CL Act s 11:
[20] Under the statute, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm. This is pertinent to the appellant’s attack on the Court of Appeal’s reasons, which is directed to para 48 of the judgment:
Now, apart from the exceptional case that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm. That emerges from the words comprises the following elements in the chapeau to section 5D(1). Material contribution, and notions of increase in risk, have no role to play in section 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case. (emphasis in original)
…
[26] Section 5D(2) makes special provision for cases in which factual causation cannot be established on a “but for” analysis. The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this court. Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.
See also Allianz Australia Ltd v Sim.22
The journey, however, is incomplete. The High Court of Australia, on 5 October 2012, granted special leave to appeal in respect of the decision of Wallace v Kam.23 That was decided in the context of medical negligence. Watch this space!
Obvious risks of dangerous recreational activity:
The provisions in relation to statutory “obvious risk” are contained in ss 13 to 19 of the CL Act. Section 19 concerns “dangerous recreational activity”.
Perhaps surprisingly, while the Ipp legislation in New South Wales in this regard has been the subject of extensive treatment, there has been little treatment in the other states and territories. The reason for that, in my opinion, is passing strange but probably reflects that the current crop of judges have little appetite for provisions of such novelty, preferring to adjudicate cases in the context of existing principle.
Three New South Wales cases explain well how these provisions have come to be interpreted, keeping in mind that the import of CL Act s 19 is that if invoked then such provision affords an exemption from causal liability which is otherwise proved under the general law.
The NSW analogue of s 19 is s 5L. [24]
In Fallas v Mourlas25, Ipp JA wrote:
[36] Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in daytime may be safe but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time but walking on a country road not. Waterskiing may not be dangerous for a competent skier but the same may not be said for a novice. A recreational activity may dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous.
[37] As the question whether a recreational activity may be dangerous will often depend on the particular circumstances, if such a determination does not take account of those circumstances it is likely to be unreliable, may be unfair and may give rise to injustice.
…
[50] Accordingly, in my view, the dangerousness (in terms of s 5L) of the
recreational activity is to be determined by the activities engaged in by the
plaintiff at the relevant time. All relevant circumstances that may bear on
whether those activities were dangerous in the defined sense include relevant
matters personal to the plaintiff and others of the kind I have mentioned.
In Lormine Pty Ltd v Zuereb26, the NSW Court of Appeal again came to be considering s 5L in the context of a plaintiff, a paying customer on a dolphin tour vessel, was washed overboard when the vessel was struck by a rogue wave due to the negligence of the master in handling of the vessel. The specific activity, of riding on the front deck of the vessel, was found not to be, objectively or prospectively “dangerous” having regard to, in particular, a tour brochure which promoted the tour as one to be undertaken “in calm waters … and which should] … suit people of all ages”.
Mason P wrote as to the relevant characterisation:
[31] The principles as to how an activity is to be characterised to determine if it is a “dangerous recreational activity” (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]—[50], [92]). Accordingly, it is irrelevant for the appellants to rely upon evidence from the plaintiff about the risks of crossing the English Channel.
Finally in Laoulach v Ibrahim27, a “diving” case, Tobias AJA (Giles and Macfarlan JJ agreeing) wrote, expanding on what was essayed in Lormine:
[123] In their written submissions the respondents [defendants] contended that the risk was significant in terms of its catastrophic consequences. In my opinion that is insufficient. For the risk to be found to be significant there must be a finding not only that it was more than trivial or very slight but also, generally speaking, that there was a real chance of the risk materialising. There is a difficulty in accepting that that standard was satisfied in the present case given his Honour’s finding, not challenged by the respondents, that the probability of the risk of harm materialising was low.
The authorities, however, dictate that such “dangerous recreational activity” provision has been deployed on a number of occasions to exempt liability.28
Proportionate liability:
This provision, in the cases for economic and property loss to which it applies, has been foremost in the resonation of the CL Act and its interstate analogues. Cognate provision is made in federal trade practices and corporate legislation for statutory “misleading or deceptive” contravention cause of action.
The import of the provision, if invoked, is to obviate the common law solidary (or joint and several liability) which afforded a plaintiff a “deepest pocket” approach to litigation. The fact that an actual or potential defendant, jointly and severally liable for the damage, was uninsured or indigent was irrelevant if a defendant with the where with the capacity to pay existed and was successfully pursued. Not so now!
The key issues which have arisen in the construction, in this regard, of CL Act Chapter 2, Part 2, and its interstate and federal analogues pertain to the shouldering of the persuasive onus of proof, proof of causative liability in the uninsured/indigent wrongdoer and the necessary identification of the same damage.
In Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd29, the appellant defendant conducted a business which included aerial spraying of herbicide. The respondent plaintiff alleged that after spraying herbicide, damage was seen on the respondent’s cotton crops. The trial judge found the appellant breached the duty of care owed to the respondent plaintiff. The appellant appealed on a number of grounds including that the trial judge failed to find the other defendants were “concurrent wrongdoers” under s 30 of the CL Act. The court dismissed the appeal.
Fraser JA wrote:
[58] Section 31 limits the liability of a defendant only in a case in which the plaintiff is entitled to recover the same loss in an “apportionable claim” against the defendant and at least one other person. Section 28(1) provides that Pt 2 of Ch 2 applies to “… either or both of the following claims (apportionable claim) …” The following para (a) includes as an “apportionable claim” a claim for economic loss or damage to property in an action for damages arising from a breach of duty of care. The respondent’s claim was an apportionable claim of that kind. The trial judge held that the appellants’ liability was not limited by s 31 because they had not satisfied their onus of proving that the former defendants were concurrent wrongdoers, or that Baker was a concurrent wrongdoer with either of the appellants, or that each appellant was a concurrent wrongdoer with the other appellant. The appellants argued that the trial judge was wrong in holding that the onus was upon the appellants, or she was wrong in holding that the appellants had not satisfied their onus of proving that one or more of the former defendants, Baker and each of the appellants were concurrent wrongdoers.
…
[61] The same construction should be adopted in relation to the Act. There are textual differences between the Act and the similar legislation in New South Wales and Victoria, but the differences are not material to this issue. The trial judge’s conclusion that “… it is for the sixth and eight defendants [the appellants] to prove that the damages should be reduced because there are concurrent wrongdoers who are liable to the plaintiff because their act or omission has caused the loss or damage” reflects the text of s 31. That section applies only in a case in which the defendant “is a concurrent wrongdoer in relation to the claim”(s 31(1)(a)) and therefore, only where the defendant “is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim” (s 30(1)). It follows that proof that an act or omission of a person other than a defendant was an independent cause of the claimed loss or damage is necessary before any occasion arises to consider whether or how a defendant’s liability should be limited under s 31. A plaintiff’s cause of action is complete without any evidence that there is a concurrent wrongdoer; the plaintiff is entitled to recover its proved loss in full from a defendant who is proved to be legally liable for that loss. If a defendant wishes to achieve a different result, the onus must be on the defendant to prove the necessary facts. As McDougall J explained in the paper cited earlier, that conclusion is also suggested by the circumstance identified by Professor McDonald in an earlier paper that in some cases the defendant will be in a better position than the plaintiff to identify concurrent wrongdoers, and by Kirby P’s observation in Platt v Nutt that “… the general rule which obtains in our courts, namely that those who assert must prove”. It is necessary to add only a reference to s 32, which was discussed in the parties’ submissions. Subsection 32(1) imposes upon a claimant an obligation to claim against every person “the claimant has reasonable grounds to believe may be liable for the loss or damage”. If a concurrent wrongdoer contends that the claimant has failed to comply with that obligation, the concurrent wrongdoer may apply under s 32(4) for orders the court considers just and equitable “on … apportionment of damages proven to have been claimable” and costs thrown away by the failure. These provisions are consistent with the trial judge’s conclusion that the onus lay upon the appellants to prove the facts necessary for any application of the legislation.
The “same damage” issue has been the subject of concurring decisions of the NSW and Victorian Courts of Appeal in Mitchell Morgan Nominees Pty Ltd v Vella30 and St George Bank Pty Ltd v Quinerts Pty Ltd.31 However, the High Court was granted special leave to appeal in Mitchell Morgan. Again, watch this space!
Damages:
While there are many other aspects of the CL Act, and its interstate analogues, which have been the subject of consideration over the past decade, it would be wrong to conclude without giving some treatment to the damages provisions of the Act. Of those which have been litigated, s 55 deserves specific treatment because it pertains to what is usually the largest head of damage in a personal injury claim, namely that for past economic loss and impairment of earning capacity.
Section 55 provides:
55 When earnings can not be precisely calculated
(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
(4) The limitation mentioned in section 54(2) applies to an award of damages under this section.
Plainly this was intended to obviate unexplained trial court global awards for economic loss. In Reardon-Smith v Allianz Australia Insurance Limited32, Keane JA (Williams JA and Atkinson J agreeing) wrote:
[37] Section 55(3) of the Act is evidently concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court. To this end, the provision requires that the methodology and assumptions on which the award is based be stated: it is clear, however, that it does not require an explicit statement of a calculation in which a formula is applied to factual findings.
In Perfect v MacDonald33, McMeekin J wrote:
[46] Mr Crow of senior counsel for the defendant submitted that the section had altered the common law and where, as here, it was impossible to demonstrate that the plaintiff will, as opposed to may, suffer loss nothing could be allowed. I said of that proposition in Brooks v Zammit [2011] QSC 181 at [34] where I, not counsel, raised the issue:
Whether that section alters the common law was not debated. Arguably the restriction that damages should only be awarded “if [the court] is satisfied that the person has suffered or will suffer loss” means that the loss must be established on the balance of probabilities as more likely than not. Thus a loss of a chance that falls below 50% is not to be compensated. However no authority was cited where any court has taken that view and the matter, as I say, was not the subject of argument. Such a contention would run into the same difficulties as were raised in cases involving the interpretation of other provisions of the CLA such as Kriz v King [2006] QCA 351 and Grice v Queensland [2005] QCA 272. It was there pointed out that if it was Parliament’s intention to take away well established common law rights then it had to do so “clearly and unambiguously”. It has not done that here. I assume then that the common law applies.
[47] On further reflection I adhere to that view.
…
[50] I would not readily impute to the legislature a readiness to work such unfairness without very clear words mandating that approach. Hence when the legislature uses the word “will” in s 55 in the phrase “will suffer loss”, it is doing no more than asserting that these common law tests need to be satisfied.
[51] While the precise point may not have arisen in the past Mr Crow SC has referred me to three decisions where the section has been considered, two of the Court of Appeal. In both of those latter decisions the court plainly accepted that it was appropriate to adopt the principles explained in Malec when arriving at a global assessment. There was no suggestion that there had been any alteration of the common law brought about by the enactment of s 55.
…
[59] It is said on the defendants’ side that he may get through without loss. That is so. He might never have wished to seek to be self employed, injured or not. He might have benevolent employers to whom time is not money and who will indulge his relative inefficiency. He might avoid injury. But that prospect must be weighed in the balance with the prospect of a very much worse future than my allowance assumes.
[60] That worse future could include various contingencies: most self employed people work a good deal longer than 38 hours and so the lost time might be much more than an hour a week; he will be less likely to pursue overtime if sore at the end of a day or week of work; if his reputation suffered because he was slower then he could lose whole contracts and so a great deal more than I have envisaged; there is presumably a reduced likelihood of obtaining promotions for the less efficient; and if he suffered injury for the reason Ms Coles envisaged then he could be disabled for weeks or permanently.
[61] I would rate the chances of the plaintiff suffering some loss of earnings over his lifetime due to the restrictions and weaknesses that his accident caused injuries have imposed as virtually certain. I would rate his chances of getting by without significant loss as very low and his chances of a worse future than I have assumed as significantly greater.
[62] Obviously I must assess the prospective loss on very imprecise materials. The nature of the case permits no more. Doing the best I can I assess the future loss at $100,000.
Insofar as it matters, I agree wholly with his Honour.
The analogue of s 55 in New South Wales has been construed as allowing of what is described in that state as a “buffer” amount which is not susceptible to precise calculation.34 In Queensland that might be described as a type of “global” award of damages.
One member of the Queensland Court of Appeal, Fryberg J, very usefully wrote:
[56] What is the consequence on appeal of a breach of s 55(3) by the trial judge? It cannot be that there must necessarily be a new trial or a reassessment of damages. Such an approach has been rejected on the more difficult wording of provisions in New South Wales; a fortiori it should be rejected here. I agree with the presumption made by Giles JA that the intention of such a provision is to promote intellectual rigour. If it is not complied with, a court of appeal will be obliged to scrutinise the award rather more closely than ordinarily it would do in such cases. After all, the purpose of requiring the assumptions and methodology to be stated must surely be to expose them clearly, including to a court on appeal.
A failure to comply with s 55(3) alone would not ordinarily result in a new trial or reassessment on appeal.35
In Ballesteros v Chidlow36, the trial judge awarded $20,000 for future economic loss in a claim for damages for personal injury by a 33 year old woman who had sustained injuries in a motor vehicle collision. After noting that both parties to the appeal considered that the plaintiff was entitled to some award for future loss of earning capacity, it was found that was impossible to calculate mathematically by way of a precise amount for the award but that s 55 applied to the circumstances. There was substituted, in appeal, an award of $40,000 for that head of damage.
Further, it has been held that the common law principles which obtain in respect of assessment of damage, including the operation of the principles enunciated in Purkess v Crittenden37 and Malec v JC Hutton Pty Ltd38, apply in respect of an assessment of damages to which CL Act Chapter 3 applies.39
Conclusion:
To take up a sentiment expressed by Justice Fryberg in the last portion of this paper, and exemplified by his Honour’s treatment of the issues in the decision of French v QBE40, in which he was the trial judge, what the CL Act has required practitioners and judges to do, in the cases to which it applies, is to engage in greater “intellectual rigour”. It would be surprising that, with such important matters at hand, any practitioner would (or would want to be seen to) impugn that sentiment as one other than worthwhile.
Having said that Justice Fryberg, who retires this year, wrote me a Christmas card recently thanking me for a copy of the third edition of the State CL Act annotated text but remarking he hoped he never had to open it before he goes!
From 1 July 2010 the CL Act, by itself or similar content (the WCR Act), has become applicable to all mainstream personal injury claims in Queensland, at least those where what is being contended is a breach of a duty of care arising at common law, but in any event for instances of damage assessment. That is no bad thing, particularly from the point of view of professional negligence exposure, far superior to the need to study the nuances which previously existed across the substantive law upon enactment of the CL Act.
I think it fair to say that, despite such enactment, legal practitioners, judges and the system have “survived the drive”!
RJ Douglas S.C.
Footnotes
1. See CL Act ss 2 and 4.
2. Chapter 2, Part 1, Divisions 1 to 6.
3. Section 61.
4. Section 55.
5. Commonwealth, Review of the Law of Negligence: Final Report, 2002, also referred to as the ‘Ipp Report’ (the Report), named after the Chairman of the Review, the Honourable Justice David Andrew Ipp, http://www.revofneg.treasury.gov.au.
6. SL No 16 of 2005.
7. See WCR Act s 2
8. See WCR Ch 5, Parts 8 and 9.
9. [2010] QCA 233.
10. (2011) 243 CLR 148.
11. Gibbings-Johns v Corlis supra.
12. Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at [346] but note on the reasoning there CL Act s 37, at least, would apply to such a cause of action; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 at [26].
13. State of New South Wales v Mikhael [2012] NSWCA 338 at [75].
14. [2012] QCA 315.
15. [2012] NSWCA 328.
16. [2012] NSWCA 81.
17. see Gold Ribbon (Accountants) Pty Ltd (In Liquidation) v Sheers [2006] QCA 335.
18. see French v QBE Insurance (Australia) Ltd [2011] QSC 105 at [133]-[135]; see also Monaghan Surveyors Pty Ltd v Stratford Glynn-Avon Pty Ltd [2012] NSWCA 94 at [70]; see also Zanner v Zanner [2010] NSWCA 343 at [12].
19. see Garzo v Liverpool-Campbelltown Christian School [2012] NSWCA 151.
20. (2009) 239 CLR 420 at [45]-[55].
21. (2012) 86 ALJR 267 at [20]-[26].
22. [2012] NSWCA 68 at [143]-[145].
23. [2012] NSWCA 82.
24. although it is worth keeping in mind that s 19 is expressed only to apply to “negligence” — not the wider concept of “breach of duty” which includes breach of contractual duty of care – whereas s 5L has an arguably wider ambit.
25. (2006) 65 NSWLR 418.
26. [2006] NSWCA 200.
27. [2011] NSWCA 402.
28. see Jaber v Rockdale City Council [2008] NSWCA 98; Great Lakes Shire Council v Dederer [2006] NSWCA 101 — the case otherwise proceeding to the High Court against another defendant; see also Vreman v Albany City Council [2011] NSWSC 39.
29. Supra
30. [2011] NSWCA 390.
31. (2009) 25 ER 666.
32. [2007] QCA 211.
33. [2012] QSC 11.
34. see Amoud v Al Batat [2009] NSWCA 333; Nominal Defendant v Libaga [2011] NSWCA 121.
35. Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 at [41].
36. [2006] QCA 323.
37. (1965) 144 CLR 164.
38. (1990) 169 CLR 638.
39. Ridolfi v Hammond [2012] NSWCA 3 at [86]-[88].
40. Supra.
