Professional Liability Guide

CHAPTER 1 – DUTIES

Most States and Territories have since enacted legislation that seeks to restate this common law test. While there are some slight differences between the wordings of the respective provisions, it is predominantly the case that a person does not breach a duty to take precautions against a risk unless: ƒ the risk was foreseeable (being a risk the person knew or reasonably should have known about); ƒ the risk was not insignificant; and ƒ a reasonable person in the person’s position would have taken precautions. 77 When considering what precautions a reasonable person would take against the risk, a court should consider factors such as the probability and likely seriousness of harm, the social utility of the activity creating the harm, and the burden precautions would create. The legislation applies to civil claims for damages for personal injury, damage to property or economic loss, and to a duty of care in tort and any other concurrent and coextensive duty (both under contract and statute). Its application is sufficiently broad to capture most types of professional negligence claims. In Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem, 78 the High Court unanimously confirmed that the starting point of any consideration of breach of duty must be the civil liability legislation (in that case, the New South Wales Act). This is because if attention is not directed to the legislation, there is a serious risk that the inquires will miscarry. ‘The Civil Liability Act, s 5B essentially enacts in statutory form the common law test of breach of duty: see Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53 at [28] per Allsop P. However, as Allsop P noted, despite the closeness of the statutory regime to the common law test, it is the statute to which regard must be had. See also Adeels Palace Pty Ltd v Moubarak at [27]. The High Court in Adeels Palace also confirmed that the question whether there had been a breach of duty under the statutory test was to be assessed prospectively: see Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 22. ‘Section 5B(1)(a) requires a determination as to whether the risk is foreseeable. As the authorities stand at present, the common law test as stated in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 remains the touchstone for the determination of foreseeability. In regard to foreseeability, Mason J said, at 47: This principle was followed in New South Wales v Mikhael , in which Beazley JA said:

“A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, whenwe speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable”.’ 79

77 Civil Liability Act 2003 (Qld) ( CLA (Qld) ) s 9; Civil Liability Act 2002 (NSW) ( CLA (NSW) ) s 5B; Wrongs Act 1958 (Vic) ( Wrongs Act (Vic) ) s 48; Civil Law (Wrongs) Act 2002 (ACT) ( CLA (ACT) ) s 43; Civil Liability Act 2002 (Tas) ( CLA (Tas) ) s 11; Civil Liability Act 1936 (SA) ( CLA (SA) ) s 32; Civil Liability Act 2002 (WA) ( CLA (WA) ) s 5B. The Northern Territory has not enacted comparable civil liability legislation. 78 (2009) 239 CLR 420, 432 applied in Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329. 79 [2012] NSWCA 338 [75]–[76].

15

© Carter Newell 2023