Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

It was also the case in Mules v Ferguson 80 (upheld on appeal 81 ), where the Supreme Court of Queensland considered a professional negligence claim against a medical practitioner for a failure to diagnose. The Court had regard to the principles in section 9 of the CLA (Qld). Similarly, in UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd, 82 the New South Wales Supreme Court applied section 5B of the CLA (NSW) to a professional negligence claim against an engineer. A key element of the civil liability legislation is the ‘not insignificant’ test. The purpose of the test is that respondents should only be held liable for failing to take precautions in relation to risks that are ‘not insignificant’, rather than being required to take precautions in response to an array of risks that are unlikely to materialise. The common law test regarding foreseeability from the decision of Wyong Shire Council v Shirt defined a foreseeable risk as one that was ‘not far fetched or fanciful’. 83 The Queensland Court of Appeal in Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd 84 accepted that the test in section 9 was more demanding than the common law test established in Shirt . Justice Fraser (with whom White JA and Mullins J agreed) held that, in determining claims to which the Queensland Act applies, the ‘not insignificant’ test should be applied instead of the common law test of ‘not far-fetched or fanciful’. 85 The ‘not insignificant’ test continues to be applied in Queensland. 86 Causation For a defendant to be liable in negligence, it needs to establish not only a breach of duty but that the breach was causative of loss. While such a link is not a stated element of a contractual or statutory cause of action (unlike in tort), a plaintiff still needs to establish that the alleged wrongful conduct caused an actual loss should it wish to recover more than nominal damages. Causation at common law ordinarily falls to be decided as a question of fact which must be determined by applying common sense to the facts of the case. 87 The ‘but for’ has an important (although not wholly determinative) role to play in resolving the question. Applying the ‘but for’ test, causation will be established if a plaintiff would not have sustained loss or damage had the defendant not been negligent – that is, but for a defendant’s negligence, the loss would not have occurred. 88

The principles of causation of loss have also been restated in the State and Territory civil liability legislation in terms that broadly reflect common law principles. 89

The legislation provides that a determination that a party’s negligence (or breach of duty) caused particular harm involves establishing the following elements:

ƒ that the negligence was a necessary condition of the occurrence of the harm ( factual causation ); and ƒ that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).

80 [2014] QSC 51. 81 [2015] QCA 5.

82 [2014] NSWSC 1959. 83 (1980) 146 CLR 40. 84 [2013] 1 Qd R 319, 333. 85 Ibid [16]. 86 Deans v Maryborough Christian Education Foundation Ltd [2019] QCA 75 [53]. 87 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515. 88 Ibid 435. 89 CLA (Qld) s 11; CLA (NSW) s 5D; Wrongs Act (Vic) s 51; CLA (ACT) s 45; CLA (Tas) s 13; CLA (SA) s 34; CLA (WA) s 5C. The Northern Territory has not enacted comparable civil liability legislation.

16

www.carternewell.com