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1
Law Reform (Contributory Negligence) Amendment
Bill 2001
LAW REFORM (CONTRIBUTORY
NEGLIGENCE) AMENDMENT BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
OBJECTIVES OF THE LEGISLATION
The purpose of this Bill is to address the impact of the decision of the
High Court in Astley v Austrust Limited (1999) 197 CLR 1. The Bill will
enable the apportionment of liability in a claim for damages where the
claim is based on grounds other than negligence.
REASONS FOR THE OBJECTIVES AND HOW THEY WILL BE
ACHIEVED
At common law, a defendant being sued for a tort could generally raise
the contributory negligence of the plaintiff as a complete defence to the
claim. That is, if the damage suffered by the plaintiff was partly due to the
plaintiff's failure to take reasonable care, the plaintiff could not recover any
damages at all from the defendant. (For example, a pedestrian injured by a
speeding vehicle would not be able to claim damages if the pedestrian had
contributed to the accident by failing to keep a proper lookout for vehicles.)
The Law Reform Act 1995 (the Act) modifies the common law by
providing for apportionment of damages in cases of contributory
negligence. Under the Act, if a plaintiff's damage is the result partly of the
plaintiff's fault and partly of the fault of the defendant, the plaintiff can still
recover damages from the defendant but the amount of damages is reduced
to the extent that the court thinks just and equitable having regard to the
plaintiff's share in the responsibility for the damage.
The apportionment provisions contained in the Act (originally in the
Law Reform (Tortfeasors Contribution, Contributory Negligence, and
Division of Chattels) Act 1952 before relocation to the Law Reform Act
1995) were based on United Kingdom legislation. There are similar
provisions in the other Australian States and Territories. The apportionment
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Law Reform (Contributory Negligence) Amendment
Bill 2001
provisions apply to claims of negligence and other claims in tort where
contributory negligence could be a defence to the claim.
Some contracts contain an express or implied term that one of the parties
has a duty to act with reasonable care. If that duty is breached, in some
circumstances the other party may be able to sue for breach of duty of care
both in tort and in contract. There was support in some Australian and
United Kingdom cases for the view that the apportionment legislation
extended to claims in contract for damages for breach of a contractual duty
of care, where the duty of care owed by the defendant is the same in
contract as in tort.
The High Court of Australia decided in Astley v Austrust Limited (1999)
197 CLR 1 that the apportionment provisions contained in the Wrongs Act
1936 of South Australia applied only to claims for damages in tort; they did
not apply to claims of breach of contractual duty of care. As a result, if a
plaintiff sues a defendant for breach of duty of care in both contract and in
tort, the plaintiff's damages may be reduced for contributory negligence in
the claim in tort, but not in the claim in contract.
That outcome is plainly unfair. While it might be thought that the effect
of this decision is limited to litigants, there is a wider negative impact. If
higher damages are awarded against individuals, the result is likely to be
higher insurance premiums for all.
The High Court acknowledged in its judgment that governments may
wish to respond by amending the legislation. The majority of the High
Court stated
"Perhaps the apportionment statute should be imposed on parties to a
contract where damages are payable for breach of a contractual duty
of care. If it should, and we express no view about it, it will have to be
done by amendment to the legislation."
The Court of Appeal determined that Astley applies to section 10 of the
Law Reform Act 1995 in Wylie v ANI Ltd [2000] QCA 314 (unreported). In
that decision, the President of the Court of Appeal, the Honourable Justice
McMurdo, commented as follows -
"Since Astley, where an employee suffers injury in the workplace
caused by the employer's breach of contract of employment, damages
will no longer be able to be reduced because of the employee's
contributory negligence. The commendable spirit of modern
workplace health and safety legislation requires that employer and
employee cooperatively work together to develop and maintain a safe
workplace. It is not inconsistent with that spirit to require workers to
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Law Reform (Contributory Negligence) Amendment
Bill 2001
be accountable for their own negligence consistent with their tortious
obligations and apportionment legislation. The effect of Astley goes
well beyond cases involving personal injury in the course of
employment. But it is for the legislature, not the courts, to consider
whether the law should be changed to reflect the position generally
thought to exist before Astley."
ADMINISTRATIVE COST TO GOVERNMENT OF
IMPLEMENTATION
The Bill will not have any adverse financial consequences for
Government. It will result in reduced damages awards as courts will be able
to apportion liability for damages in claims based on a breach of contract
where a plaintiff has a share in the responsibility for the damages that they
have incurred.
FUNDAMENTAL LEGISLATIVE PRINCIPLES
The Bill operates retrospectively. As noted above, this is essential to
correct the unintended consequences brought about by the High Court's
decision in Astley v Austrust Limited (1999) 197 CLR 1.
Section 4(3)(g) of the Legislative Standards Act 1992 provides that one
of the fundamental legislative principles is whether legislation adversely
affects rights and liberties, or imposes obligations, retrospectively.
Retrospective laws are generally passed to validate past actions, correct
defects in legislation or confer benefits retrospectively. This Bill corrects a
defect in the Law Reform Act 1995, which prior to Astley was regarded as
applying the apportionment provisions to liability in contract as well as in
tort.
The Bill restores the law to the position that was commonly accepted as
applying in Queensland before the Astley decision.
The amendments are drafted so that the rights of parties to proceedings
that have been commenced or decided, or where a settlement has been
negotiated, are unaffected.
The amendments are also expressed not to apply to claims under the
WorkCover Queensland Act 1996. Concern was expressed during
consultation on the Bill about the consequences for WorkCover claimants if
the provisions of the Bill applied to claims under that Act. Few such claims
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Law Reform (Contributory Negligence) Amendment
Bill 2001
have been commenced in the courts because of the extensive pre-
proceedings process set out in the WorkCover Queensland Act 1996.
The amendments will apply to any other act or omission that occurred
before the amendments commenced.
Clause 2 provides that the amendments in the Bill are taken to have
commenced on 7 August 2001.
This is an appropriate response that will ensure that the effect of the
High Court's decision is quarantined as much as possible, without
adversely affecting the position of litigants who have acted on the basis of
the law as determined in Astley.
CONSULTATION
A range of community groups have requested that legislation be
introduced to remedy the effects of the High Court's decision in Astley.
These included:
· Insurance Council of Australia
· Queensland Workers' Compensation Self Insurers Association;
and
· Commerce Queensland
These groups expressed concern about the impact of the High Court's
decision in Astley on common law master and servant claims, and the
potential flow on effects in terms of increases in premiums paid to private
sector insurers and WorkCover for worker's compensation, public liability,
professional indemnity and other insurance.
The draft Bill was developed for the Standing Committee of Attorneys-
General by the Parliamentary Counsel's Committee. Similar legislation
has been introduced by all other States (with the exception of Western
Australia) and in the Australian Capital Territory and the Northern
Territory.
Consultation on the draft Bill occurred with the following groups:
· Commerce Queensland
· WorkCover Queensland
· Queensland Workers' Compensation Self Insurers Association
· Insurance Council of Australia
· Bar Association of Queensland
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Law Reform (Contributory Negligence) Amendment
Bill 2001
· Queensland Law Society
· Australian Plaintiff Lawyers Association
· Queensland Council of Unions
· Australian Workers Union
NOTES ON PROVISIONS
Clause 1 is the short title.
Clause 2 provides that the Bill is taken to have commenced on 7 August
2001.
Clause 3 provides that the Bill amends the Law Reform Act 1995.
Clause 4 inserts a new definition of `wrong' in section 5 of the Act to
include a breach of a contractual duty of care that is concurrent with a duty
of care in tort.
Clause 5 inserts a new section 10(1) and (2) into the Law Reform Act
1995. These subsections amend the apportionment provisions to clarify
that a court should reduce a plaintiff's damages arising from a wrong, as
defined by the Bill, if the plaintiff is guilty of contributory negligence. This
is the fundamental clarification contained in the Bill and is intended to
place Queensland litigants in the position they were in prior to the High
Court's decision in Astley.
Clause 6 inserts a new section 21 by way of transitional provisions and
provides that the amendments made by this Bill to part 3, divisions 1 and 3
to apply to wrongs that occurred before the commencement day as if those
amendments had been in force when the wrong occurred.
The provisions of part 3 of the Act, as in force before the commencement
day, continue to apply to a wrong if proceedings about the wrong were
started but final relief has not been given before the commencement day.
The provisions of part 3 of the Act, as in force before the commencement
day, also continue to apply to a wrong about which a court has, before
commencement, given judgment or made a decision (including a judgment
or decision about liability only).
The provisions of part 3 of the Act, as in force before the commencement
day, also continue to apply to an injury for which a worker has an
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Law Reform (Contributory Negligence) Amendment
Bill 2001
entitlement to damages under the WorkCover Queensland Act 1996, that
was sustained before 1 July 2001.
© State of Queensland 2001