Our approach is to be recognised as a premier provider of specialist legal services across Australia and internationally by being the best we can be for our clients and ourselves Carter Newell Lawyers is an award winning specialist law firm that provides legal advice to Australian and international corporate clients in our key practice areas of: § Insurance § Commercial Property § Construction & Engineering § Litigation & Dispute Resolution § Resources § Aviation § Corporate Within each of these core areas we have dedicated experts who are committed to and passionate about their field and have extensive experience and knowledge. Our Awards § 2014 Winner – Australasian Lawyer Employer of § 2009 Finalist Brisbane Lord Mayor’s Business Choice - Bronze Medal Award Awards § 2014 Winner - Australasian Lawyer Employer of § 2009 Finalist ALB Australasian Law Awards – Choice - Career Progression Award Brisbane Law Firm of the Year § 2014 Winner - Australasian Lawyer Employer of § 2008 Winner ALB Australasian Law Awards – Choice - Work Life Balance Award Brisbane Law Firm of the Year § 2013 Winner ALB Australasian Law Awards – § 2008 Winner Employer of Choice Queensland Law Brisbane Law Firm of the Year Society § 2012 Winner ALB Australasian Law Awards – § 2008 Finalist BRW Client Choice Award for Best Brisbane Law Firm of the Year Law Firm in Australia (open to firms with revenue under $50M per year) § 2012 Winner Disability Employment Award – AHRI Diversity Awards § 2008 Independently recognised as a leading Brisbane firm in the practice areas of Insurance | § 2011 Winner ALB Employer of Choice Blue Award Building & Construction | Mergers & Acquisitions | Energy & Resources § 2011 Finalist BRW Client Choice Award for Best Law Firm in Australia (open to firms with revenue § 2007 Finalist BRW Client Choice Award for Best under $50M per year) Law Firm in Australia (open to firms with revenue under $50M per year) § 2011 Finalist ALB Australasian Law Awards – Brisbane Law Firm of the Year § 2007 Finalist ALB Australasian Law Awards – Brisbane Law Firm of the Year § 2010 Finalist BRW Client Choice Award for Best Law Firm in Australia (open to firms with revenue § 2006 Winner BRW Client Choice Award for Best under $50M per year) Law Firm in Australia (open to firms with revenue under $50M per year) § 2010 Finalist ALB Australasian Law Awards – Brisbane Law Firm of the Year § 2005 Winner ALPMA/Locus Innovation Awards for innovative CN|Direct § 2010 Finalist Lawtech Awards for Innovation in Legal IT § 2005 Finalist BRW Client Choice Award for Best Law Firm in Australia (open to firms with revenue § 2009 Independently recognised as a leading under $50M per year) Brisbane firm in the practice areas of Insurance | Building & Construction | Mergers & Acquisitions | Energy & Resources NB: Due to the extensive nature of this publication and the pace of reforms and judicial consideration there may be an absence of reference to a recent case or some references to legislation and its provisions which are no longer current, yet proclaimed, amended or repealed. This publication attempts to draw out the most significant points in the relevant legislation. Whilst all care has been taken to ensure that the most up to date information has been included, not all cases or aspects of the legislation have been considered. The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering and, if necessary, taking appropriate professional advice upon his or her own particular circumstance. © Carter Newell Lawyers 2014 Australian Civil Liability Guide Contributors Paul Hopkins John Grant Michael Elliott Patrick Mead Michael Bath Grant Thomas Rebecca Stevens Peter Dovolil Danny Maxwell Michael Gapes Andrew Persijn Hannah Maher Mark Brookes Allison Bailey Nadia Stacey David Rodighiero Ryan Stehlik Alex Button-Sloan Glenn Biggs Rebecca Johns Avi Kaye Stephen White Beau Mollinger Rosalie Grace Milton Latta Cameron Rodgers Stephanie Levesque Katherine Bland Foreword by The Honourable David A Ipp AO QC Commissioner of the NSW Independent Commission Against Corruption Formerly Justice, Court of Appeal, Supreme Court of New South Wales Endorsement by The Honourable Michael Kirby AC CMG Carter Newell Publications Brisbane • Sydney • Melbourne Carter Newell Lawyers FOREWORD Carter Newell Lawyers are to be commended for their publication ‘Australian Civil Liability Guide’. The legislation that, since 2002, has reformed tort law in Australia has created a maze. The tangled web of statutory provisions has been made even more complex by the judgments of courts in every jurisdiction that have tried to apply and clarify the various provisions that have fallen for decision. One of the most time-consuming problems for lawyers who have to grapple with the subtleties of the legislation involved is the difficulty in finding the relevant material. This may comprise the legislation applicable, the cases that have considered the particular issue, similar legislation in other jurisdictions, and relevant cases in those jurisdictions. Carter Newell’s publication enables one, quickly, to undertake the desired research simply and efficiently. The material is comprehensive and well-organised. The legislation is sensibly divided into different categories annotated with cases and commentary. Each category deals separately with each State and Territory. The language used is clear and direct. The time and trouble that has been taken in the production of the guide is obvious. Its quality as a reference work speaks for itself. It is an extremely helpful tool for any tort lawyer, whether practitioner or academic, and for any person who is interested in the changes to Australian tort law that have occurred since 2002. The Honourable Justice David A Ipp AO Court of Appeal Supreme Court of New South Wales AUSTRALIAN CIVIL LIABILITY GUIDE iii Carter Newell Lawyers ENDORSEMENT Insurance law was the first area of law I knew and when I started there were no publications such as this 9th edition Australian Civil Liability Guide. The State by State break down highlighting the effects of the tort reform introduced in 2002; the cases reviewed, interpretation and assessment of heads of damage clearly demonstrate an excellent understanding of this area of law by the team at Carter Newell Lawyers. This publication is a great resource and a fine example of why I have always felt at home in the family of insurance lawyers. The Honourable Michael Kirby AC CMG. AUSTRALIAN CIVIL LIABILITY GUIDE v Carter Newell Lawyers TABLE OF CONTENTS Foreword ....................................................................................................................................................... iii Endorsement ..................................................................................................................................................v Table of Cases ............................................................................................................................................ xiv Table of Statutes ........................................................................................................................................ xxii INTRODUCTION .......................................................................................................................................... 1 Background to the tort reforms in Australia ................................................................................................. 1 Commentary on the tort reforms .................................................................................................................. 1 Future reform ................................................................................................................................................ 2 QUEENSLAND ............................................................................................................................................ 3 Application of Statutory Reforms ................................................................................................................. 4 Pre-court Procedures ................................................................................................................................... 5 Compulsory conference ............................................................................................................................... 9 The Law of Negligence – Scope of Duty of Care ....................................................................................... 10 Standard of care ......................................................................................................................................... 10 Causation ................................................................................................................................................... 12 Obvious risk ................................................................................................................................................ 13 Dangerous recreational activities ............................................................................................................... 17 Liability of professionals ............................................................................................................................. 18 Liability of public authorities ......................................................................................................................