Year 11/12 Legal Studies, Term 4

1. INTRODUCTION TO CIVIL
OBLIGATIONS:
NEGLIGENCE
The law regulates private
interactions between citizens in
society, both planned
(contracts) and unplanned
(negligence). The law imposes
elements for a contract to be
valid and for a negligence claim
to be successful. Both the
common law and statutory
protection provide stakeholders
with remedies.
QSA Legal Studies Syllabus

2. NEGLIGENCE
Content
In your textbook: pp67-82
Covering topics:
 Negligence and duty of care
 Defence to negligence
 Remedies and the impact of legislation
 Negligent situations relating to motor
vehicles
 Product liability
Week 3 Exercises – questions
as indicated
 2.3.1 Q2, p70
 2.3.2 Q1-2, p72
 2.3.3 Q1-3, p72
 2.3.4 Q1-2, p73
 2.3.5 Q1-2, p74
 2.3.7 Q1-3, p76
 2.3.8 Q1-2, p78
 2.3.9 Q1, p80
Extension:
 2.3.1 Q1, p70
 2.3.2 Q3, p72
 2.3.4 Q3, p73
 2.3.6 Q1-3, p75
 2.3.8 Q3, p78
 2.3.9 Q2-3, p80
 2.3.10 Q1-3, p82

3. NEGLIGENCE
When a person fails to take care, and damage or injury results
Police/government not involved
 Unless it is both a civil and criminal matter: some is attacked – criminal (assault),
civil (personal injury through trespass or negligence)
Different to agreements as a relationship doesn’t have to previously
exist
 A parent coming to view our school as a place for their child in the future could sue
if the school was negligent and had a trip hazard
Landmark case – ‘snail in the bottle’ (see page 68 of text)

4. NEGLIGENCE AND DUTY OF CARE
Someone has to be blamed for an incident
Main purposes:
1. Compensate victims
2. Deterrence

5. ELEMENTS OF NEGLIGENCE
Element 1: a duty
of care must
exist
Element 2: there
must be a breach
of that duty of
care
Element 3:
damage, injury
or loss must
occur due to the
breach of the
duty of care

6. TASK
Use pp69-75 to outline and summarise the three elements of
negligence in your own words. While doing so, consider the following:
Element 1: a duty of care
must exist
Element 2: there must be a
breach of that duty of care
Element 3: damage, injury
or loss must occur due to
the breach of the duty of
care
1. What happens if no duty of
care exists?
2. What is the ‘neighbor
principle’ and in which
case did it originate?
3. What is considered a
‘reasonable person’?
4. What is the ‘normal’
standard of care?
5. What are three separate
requirements of our duty
of care to our neighbours,
and which case did they
1. What must happen
before element two is
even considered?
2. Who has the burden of
proof?
3. What question will the
court ask to decide if a
duty of care has been
breached?
4. How is the reasonable
person test applied?
1. What can break the
casual relationship
between the defendant
and the plaintiff?
2. How does reasonable
foreseeability relate to
remoteness in this
element?
3. What is a ‘nervous
shock’ case/

7. DEFENCES TO NEGLIGENCE
Standard of proof is on the balance of probabilities
Onus of proof is generally on the plaintiff
Defendant has the onus of proof in proving their defence
Onus can be reversed by an Act
Two common defences, and a third not so common:
1. Volenti non fit injuria (voluntary assumption of risk)
2. Contributory negligence
3. Ex turpi causa non oritur action (illegality of activity)

8. VOLENTI NON FIT INJURIA
(VOLUNTARY ASSUMPTION OF
RISK)
Translates as: to one who consents no injury can be done
Proving that the plaintiff voluntarily accepted the risk will make the
claim fail
 Even if all three elements have been proved by the plaintiff
Complete defence – no liability on behalf of defendant
 Complete absolution from payment
Two elements involved – the plaintiff must:
1. Know the facts which make up the danger
2. Submit freely and willingly to that danger

9. Civil Liability Act 2003 (Qld)
 Created law concerning people who take obvious risks and engage in dangerous
behaviour
Section 14
 Voluntary assumption of risk can be presumed, if the risk is obvious, and therefore
volenti can be used by the defendant (even though they haven’t explicitly made the
risks known)
 The plaintiff would have to prove they were not aware of the ‘obvious’ risk
 Reversal of onus of proof, plaintiff is now defending themselves

10. Section 13
 Defines ‘obvious risk’
 Reasonable person
 Common knowledge
 As cases appear before courts they decipher the
definition more
 s13(5) helps clarify what is not obvious
 If it arise because of a failure to properly operate, maintain,
replace, prepare or care for something
 Hidden risks

11. Section 19
 Defendant not liable when an obvious risk of dangerous recreational activity
materialises
Section 18
 Defines dangerous recreational activity as an activity which is:
 “Engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm
to that person”
 Very wide definition – what is classed as ‘enjoyment, relaxation or leisure’? What is
a ‘significant degree of risk’?
 Section 18 ensure the plaintiff will not be successful because:
 The risk is obvious
 If the risk materialises then it has been submitted to freely

12. CONTRIBUTORY NEGLIGENCE
Previously, if the defendant could show that the plaintiff had been
slightly careless, then the plaintiff could not recover their loss
Now, the defendant can claim that the plaintiff failed to exercise
reasonable care for his/her own protection
 Law Reform Act 1952 (Qld) made this change
The court can decide what percentage the plaintiff is liable for –
apportionment
Contributory negligence is a partial defence – partial liability
 It will reduce the amount of damages to be paid to the plaintiff, rather than
complete absolution from payment

13. Law Reform Act s10(1) details apportionment
Eg. A teenager is running through the aisles of Coles and is speared
by a protruding hook.
Based on apportionment, his injury is held to be 70% Coles’ fault and
30% his fault for running down the aisle and dodging other customers
(so, rather than, say, $50,000 compensation, he would get $35,000
after the 30% reduction due to his fault in the issue)
 This is 70:30 apportionment
Prior to the Law Reform Act, the teenager would have got no
compensation because he was partly at fault.
Often applies in motor vehicle cases as it is often both parties’ fault

14. Section 24 of the Civil Liability Act 2003 (Qld) can defeat a claim
based on contributory negligence
Apportionment can be portioned as 0:100 if the court deems it just
and equitable to do so
 meaning the plaintiff is fully liable even though the defendant is partly at fault
This keeps the previous stance of the law in action ‘just in case’, but
has never been used

15. If you get in the car with an intoxicated driver, who is liable?
Is this contributory negligence?
Is it volenti non fit injuria?

16. Section 48 of the Civil Liability Act (Qld)
If the plaintiff:
 Is over 16
 Relies upon the skill and care of the defendant, and
 Is aware of the intoxication
then the plaintiff is presumed to be contributorily negligent to the
extent of at least 25%

17. Section 48 can be rebutted by showing either:
1. The intoxication of the defendant did not contribute to his breach
of duty, or
2. The plaintiff could not reasonably be expected to have avoided
relying on the care and skill of the defendant
1. can be difficult to show
 The definition of intoxication in the Civil Liability Act is very wide
 It only requires the intoxicated person to have their judgement impaired
2. is also difficult to show
 The plaintiff needs to show they had no other way of getting where they were going
 Usually you can take public transport, another ride or walk

18. EX TURPI CAUSA NON ORITUR
ACTIO
(ILLEGALITY OF ACTIVITY)
Translates: no right of action arises from a despicable cause
The illegality removes a duty of care between a defendant and a
plaintiff where illegal activities make up the negligence
No duty of care = no breach = no damages…no claim can be made

19. REMEDIES AND THE IMPACT OF
LEGISLATION
In most cases the remedy is financial compensation
Damages are meant to one or more of the following:
 Represent justice
 Act as a deterrent
 Provide financial compensation
The purpose of awarding damages is to:
 Indemnify the person against the loss, and/or
 Penalise the person who caused the loss (limited use)
Damages:
 Can only be claimed once
 Are to be made in one lump sum

20. TASK
Read:
 General and special damages (pp79-80)
 Restrictions on claims (pp80-81)
 Adequacy of compensation (p81)
Summarise what you have read
Ensure you:
 Note the main points
 Identify any relevant legislation which impacts the topic
 Write in your own words, don’t just copy from the textbook

21. NEGLIGENT SITUATIONS RELATING
TO MOTOR VEHICLES
Compulsory third party insurance
Compensation from situations resulting from
 The operation of a motor vehicle
 Action taken to avoid a crash
 A vehicle running out of control
 A defect in a vehicle, causing it to run out of control
 Other incidents in the Motor Accident Insurance Acy 1994 (Qld)
Who pays if:
 It is a single vehicle accident?
 Unidentified negligent driver (hit and run)?
 Uninsured negligent driver?
In these cases there is no one to pass the liability to…who do you think?

22. PRODUCT LIABILITY
Competition and Consumer Act 2010 (Cth) and Sale of Goods Act
1896 (Qld)
Give statutory warranties
Cover defective goods which cause harm or injury
Warranties regarding:
 Merchantable quality
 Fitness for purpose

23. NEGLIGENCE CONTINUED
Content
In your textbook: pp82-88
Covering topics:
 Negligence and the workplace
 Insurance
 No-fault compensation schemes
 Duty of care in schools
 Duty of care in sport
Week 4 Exercises – questions
as indicated
 2.3.11 Q1-2, p82
 2.3.12 Q1, p85
 2.3.13 Q1-3, p86
 2.3.14 Qa-d, p87
Extension:
 2.3.11 Q3, p82
 2.3.12 Q2-3, p85
 2.3.13 Q4, p86
 Chapter Review Q1-7,
p88-89

24. NEGLIGENCE AND THE
WORKPLACE
Vicarious liability
 When a superior person is held responsible for a subordinate’s actions, even
though the person being held responsible may have done nothing wrong
An individual cannot be sued under vicarious liability, as it is a way of
transferring liability
Two elements which make up vicarious liability:
 Liability for the negligence of another
 Strict liability – liability without proof of fault
 One person can be vicariously liable for the acts of another regardless of how careful the employee was

25. Employees can also use the Workers’ Compensation and
Rehabilitation Act 2003 (Qld)
Allows an injured employee to pursue compensation for work-related
injuries
Compensation may be available even if no one was at fault
Can also sue the workplace
 Must prove the three elements of negligence to be successful

26. Work on the activities for 2.3.11 (Q1-2, Extension: Q3), p82
If you finish that, find relevant and at least semi-recent (preferably
Australian) news articles related to negligence:
 Who are the stakeholders involved?
 What are their differing perspectives?
 How does the law try to balance these perspectives?
 Which legislation applies?
 What would a fair, just and equitable outcome be? Justify why.
 Is this what the law would decide, do you think?

27. INSURANCE
Household insurance is most common
Second is public liability
 This is what organisations who deal with the public have as part of normal business
practice
Covers payouts relating to activities by the org which lead to injury,
damage or death
Covers cost of defending compensation claims
Insurance costs have risen a lot
 Some of this attributed to 9/11 and collapse of large insurance firms

28. NO-FAULT COMPENSATION
SCHEME
A person’ injuries are not linked to the fault of another party (ie negligent
act) and dealt with through litigation under common law
They are dealt with through legislation
 This lessens the number of court cases and reduces the cost of litigation
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
 A worker has to prove they work at the place they were injured and that it is the place
where the injury occurred
 No need to prove negligence
 Sets out procedures to follow for entitlement to statutory compensation for time off
work, treatment and rehab
 Generally, weekly payments until a decision is made and then a lump sum may be paid
 Payments based on the legislation and medical advice
How is this different to the common law system?
Advantages and disadvantages table on p86 of textbook

29. DUTY OF CARE IN SCHOOLS
Teachers owe a duty of care to students
 Any time during school hours
 On excursions or activities
Responsible to protect students from harm/injury and not provide
activities which may do so (reasonably foreseeable)
Duty of care can be breached:
 Inadequate supervision
 Inadequate instruction to avoid injury/harm
Defences:
 Contributory negligence
 Volenti non fit injuria

30. INTROVIGNE V COMMONWEALTH
(1980) &
COMMONWEALTH V INTROVIGNE
(1982)Read the case on p87
Create a flow chart diagram demonstrating the course of events
which took place

31. DUTY OF CARE IN SPORT
Duty of care exists for those who assume a position of responsibility
 Coaches
 Referees
 Those with skills/expertise
More experienced official = more care expected from them
Age of participant – very old and very young require more care
Level of ability of participants – less experienced = more care needed
Duty of care depends on the circumstances in a particular case