Statutory modification of tort law 

Australian tort law cannot now be stated from the cases alone. Every state and territory enacted civil liability legislation following a national review of negligence law in the early 2000s, prompted by a crisis in the availability and cost of public liability insurance. The statutes restate parts of the common law, alter others, and cap what can be recovered.

This article is the one to read first when starting any tort problem, because it determines which rules apply at all.

Harmonised in theme, not uniform in text

The statutes follow a common template and are often described as harmonised. They are not uniform. They differ in:

• wording — thresholds and tests are expressed differently, and occasionally the difference is outcome-determinative;
• structure and numbering — the same rule sits at different provisions in each Act, so a section number learned for one state is wrong everywhere else;
• scope — some schemes apply to any claim for harm however framed, others only to negligence or only to personal injury;
• content — some jurisdictions adopted provisions others declined, particularly on dangerous recreational activities, mental harm and exemplary damages.

Reasoning from another state's provision is a serious error, and it is one that reading national textbooks and online summaries makes easy to commit.

What the statutes modify

Breach. The foreseeable, not insignificant, reasonable-precautions test, with the calculus factors listed and hindsight warned against.

Causation. The two-limb structure of factual causation and scope of liability, the exceptional case provision, and the evidentiary rule about a plaintiff's own statement in failure to warn cases.

Obvious and inherent risk. Presumed awareness of obvious risks, no duty to warn of them, and no liability for the materialisation of an inherent risk.

Dangerous recreational activities. No liability for harm from the materialisation of an obvious risk of such an activity, in the jurisdictions that adopted it.

The professional standard. The peer professional opinion defence, subject to the court's power to reject an irrational opinion, and not applying to the duty to warn or inform.

Public authorities. Principles requiring an authority's functions to be judged by reference to its resources and full range of responsibilities, with protections for the exercise of policy and special statutory powers.

Good samaritans and volunteers. Protection from personal liability for those giving emergency assistance in good faith, and for volunteers of community organisations.

Intoxication and criminal conduct. Presumptions of contributory negligence and, in some jurisdictions, denial or limitation of damages where the harm was suffered during a serious offence.

Damages. Caps on non-economic loss and on the weekly rate for economic loss, thresholds of severity, gratuitous care minimums, restrictions on interest, and abolition or restriction of exemplary and aggravated damages for negligence-based personal injury.

Proportionate liability for economic loss and property damage claims, replacing solidary liability for those claims in most jurisdictions.

Apologies. Provisions that an apology is not an admission of liability.

Where the schemes do not apply

The exclusions matter as much as the content, and they are the first thing to check:

• Motor accident and workers' compensation schemes, which have their own statutory regimes, and which between them cover a large share of all personal injury in Australia;
• dust diseases, excluded in the jurisdictions with dedicated schemes;
• intentional torts, and in particular intentional acts done with intent to cause injury or death and sexual assault, excluded from the damages provisions in several jurisdictions;
• tobacco-related harm in some jurisdictions;
• claims under Commonwealth statutes, which are unaffected by state civil liability Acts, so a claim for misleading conduct or under a Commonwealth safety regime is not subject to the state caps.

Because the intentional torts sit outside the caps in several jurisdictions, a plaintiff with a viable trespass claim may recover considerably more than the same plaintiff suing in negligence. That is a real pleading consideration, not a curiosity.

The relationship with the common law

The common law is not abolished. It continues to supply the elements the statutes do not address — duty of care in most respects, the content of the standard of care, remoteness, and the heads of damage. Where the statute speaks, it governs, and the courts read it as a statute rather than as a codification of prior case law: a provision that reproduces a common law formula is still construed in its own terms, and one that departs from the common law is applied as it stands.

Applying this in a problem question

1. Identify the jurisdiction first. Nothing else can be stated safely until this is settled.
2. Ask whether the jurisdiction's civil liability scheme applies to this claim, or whether an exclusion or a separate scheme captures it.
3. State the statutory test in the words of that jurisdiction's Act.
4. Use the common law for what the statute leaves untouched, and to construe what it contains.
5. Where the facts do not identify a jurisdiction, say so and state which differences between jurisdictions would matter.

Where the authority sits

The civil liability Act of each state and territory, available through the legislation portal of that jurisdiction, read with the related motor accident, workers compensation, dust diseases and limitation legislation, and with the case law construing them.