The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence

Abstract

This article considers, with a review of recent case law, the impact of tort reform legislation in Australia on the common law of negligence in relation to four issues: the test for breach of duty, and particularly the Wyong Shire Council v Shirt principles; the legal effect of a risk of injury being inherent or obvious, particularly in the context of recreational or dangerous activities; the effect of contributory negligence; and the effect of a plaintiff's intoxication. It argues that the common law has not always been simplified, clarified or changed by the statutory provisions, but in some cases has been made more complex. It also argues that by trying to impose a greater degree of personal responsibility on less deserving plaintiffs the legislature has effectively allowed the complete exculpation of negligent defendants in some cases, thus undoing the advances in apportionment of responsibility that had been achieved by earlier legislation. It concludes by questioning the reliability of so-called community attitudes and objectives which were said to underpin the legislation.

Keywords: Negligence, tort, tort reform, obvious risks, breach of duty, negligence calculus, recreational activities, dangerous activities, contributory negligence, intoxication, community standards

JEL Classification: K13, K10