High Court changes position on standard of care of learner drivers

Since the High Court decision of Cook v Cook (1986) 162 CLR 376, a person who voluntarily undertakes to instruct a learner driver of a motor vehicle is owed a lower standard of care than that owed to other road users. The standard of care was still expressed to be objective; however, it took into account the inexperience of the learner driver. Therefore, a person instructing a learner driver was owed a duty of care the standard being that of a reasonable learner driver. This ‘special relationship’ was said to exist because of the passenger’s knowledge of the driver’s inexperience and lack of skill. On 28 August 2008 the High Court handed down its decision in Imbree v McNeilly [2008] HCA 40, overruling Cook v Cook.

15 year old volens to BMX riding risks

The Queensland Court of Appeal recently heard a case that raised the defence of volenti on fit injuria. By a majority of 2:1 the court held in Leyden v Caboolture Shire Council [2007] QCA 134 (20 April 2007) that the defence of volenti was established and defeated the action in negligence for damages for personal injury. The facts of the case were quite simple. The plaintiff was 15 years old when he was injured at the Bluebell Park which was controlled and managed by the Caboolture Shire Council (the defendant). The park had a BMX track – built and maintained by the defendant. At trial it was held that although the defendant owed a duty of care to entrants, a duty was not owed to the plaintiff. The judge found that the plaintiff was different to other entrants who used facilities provided by a council in a public park. The plaintiff was not relying upon the defendant to provide a BMX track with jumps that were reasonably safe as the evidence was that the track was regularly altered by third parties and the plaintiff knew that. Therefore it was reasoned that the plaintiff was relying upon the ability of the third parties who modified the jump and his own ability to use it, not the ability of the defendant to provide a reasonably safe track (at [10]). The trial judge also held that if a duty was owed, the defence of volenti applied so as to defeat the claim for damages. This was based upon the evidence that the plaintiff knew of the modification of the jump by third parties and knew of the risk. It was held that the plaintiff ‘had the appropriate subjective appreciation of the risk’ (at [11]).

High Court decision on duty owed by licensee to patron

In a previous column of Queensland Lawyer,1 the case of Scott v CAL No 14 Pty Ltd (No 2) (2009) 256 ALR 512 was discussed. Special leave to appeal against the decision of the Full Court of the Supreme Court of Tasmania was granted and on 10 November 2009 the High Court handed down its decision.

Health law in Australia

Health Law in Australia is the first book to deal with health law on a comprehensive national basis. In a field of law that is becoming increasingly important and where the demand for expertise is rapidly expanding, Health Law in Australia takes a logical, structured approach to an examination of the law in all Australian jurisdictions. By covering all the major areas in this diverse field of law, Health Law in Australia enhances the understanding of the discipline as a whole. Beginning with an exploration of the general principles of health law, including chapters on “Medical Negligence”, “Children and Consent”, and “Confidentiality, Privacy, and Access to Health Records”, the book goes on to consider beginning-of-life and end-of-life issues before concluding with chapters on emerging areas in health law, such as biotechnology and medical research. The contributing authors include national leaders in the field who are specialists in these areas of health law and who can therefore reveal to readers the results of their research. Health Law in Australia has been written for those with a legal background and is essential reading for undergraduate law students, postgraduate law students, researchers and scholars in the disciplines of law, health and medicine, as well as legal practitioners, government departments and bodies in the health area, and private health providers.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

The role of traffic violations in police-reported bicycle crashes in Queensland

Media articles have promoted the view that cyclists are risktakers who disregard traffic regulations, but little is known about the contribution of cyclist risk-taking behaviours to crashes. This study examines the role of traffic violations in the 6774 police-reported bicycle crashes in Queensland between January 2000 and December 2008. Of the 6328 crashes involving bicycles and motor vehicles, cyclists were deemed to be at fault in 44.4% of the incidents. When motorists were determined to be at-fault, ‘failure to yield’ violations accounted for three of the four most reported contributing factors. In crashes where the cyclist was at fault, attention and inexperience were the most frequent contributing factors. There were 67 collisions between bicycles and pedestrians, with the cyclist at fault in 65.7%. During the data period, 302 single-bicycle crashes were reported. The most frequent contributing factors were avoidance actions to miss another road user and inattention or negligence.

Recent developments : loss of chance in medical litigation : Tabet v Gett [2010] HCA 12.

Following the judgement of the High Court in Tabet v Gett [2010]HCA 12 handed down on 21 April 2010 it appears that in Australia there is now very limited scope for recovery in negligence for the loss of a chance of a better medical outcome.

Proof of causation in informed consent cases : establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff’s ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff’s prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court’s reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.

The role of informal networks in providing effective work opportunities for people with an intellectual disability

Being in paid employment is socially valued, and is linked to health, financial security and time use. Issues arising from a lack of occupational choice and control, and from diminished role partnerships are particularly problematic in the lives of people with an intellectual disability. Informal support networks are shown to influence work opportunities for people without disabilities, but their impact on the work experiences of people with disability has not been thoroughly explored. The experience of 'work' and preparation for work was explored with a group of four people with an intellectual disability (the participants) and the key members of their informal support networks (network members) in New South Wales, Australia. Network members and participants were interviewed and participant observations of work and other activities were undertaken. Data analysis included open, conceptual and thematic coding. Data analysis software assisted in managing the large datasets across multiple team members. The insight and actions of network members created and sustained the employment and support opportunities that effectively matched the needs and interests of the participants. Recommendations for future research are outlined.

Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Review of 'Laying Down the Criminal Law : A Handbook for Youth Workers'

This third edition of Laying down the criminal law: A handbook for youth workers is essential to understanding young people’s experiences with criminal justice in Queensland. The text comprises detailed scenarios of situations where a young person would have contact with the system, and young people ‘in trouble’ (for example, being excluded from school). The text discusses how workers support the young person in talking to police, going to court, or being a victim of crime. One scenario notes how a youth worker responds to 15 year old Stephen staying at a youth shelter after leaving home and having contact with police. Scenarios are supplemented with information about confidentiality and negligence, and how workers consider these concepts supporting young people...

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Open content licensing of public sector information and the risk of tortious liability for Australian Governments

There has been an increasing interest by governments worldwide in the potential benefits of open access to public sector information (PSI). However, an important question remains: can a government incur tortious liability for incorrect information released online under an open content licence? This paper argues that the release of PSI online for free under an open content licence, specifically a Creative Commons licence, is within the bounds of an acceptable level of risk to government, especially where users are informed of the limitations of the data and appropriate information management policies and principles are in place to ensure accountability for data quality and accuracy.

Valuers? Liability : the impact of torts reform in Queensland

Historically there has been a correlation between the economic cycles and litigation in the area of professional negligence relating to valuers. Negligence actions have principally been instigated by financiers for valuations prepared during more buoyant economic times but where there has been a subsequent loss due to a reduction in property value. More specifically during periods of economic downturn such as 1982 to 1983 and 1990 to 1998 there has been an increased focus by academic writers on professional negligence as it relates to property valuers. Based on historical trends it is anticipated that the end of an extended period of economic prosperity such as has been experienced in Australia, will once again be marked by an increase in litigation against valuers for professional negligence. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002 (“the IPP Report”), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. This paper looks at valuers’ liability for professional negligence in the context of statutory reforms in Queensland and recent case law to determine the most significant impacts of recent statutory reform on property valuers.