Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Chapter 3A Negligence
Part 3A.1 Preliminary
31D Definitions for ch 3A
In this chapter:
"harm" means harm of any kind, and includes—
(a) personal injury; and
(b) damage to property; and
(c) economic loss.
"negligence" means failure to exercise reasonable care and skill.
31DA Application of ch 3A
(1) This chapter applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.
(2) However, this chapter does not apply to a claim under the Workers Compensation Act 1951 .
Part 3A.2 Duty of care
31E Standard of care
For deciding whether a person (the defendant ) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
31F Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
31G Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Part 3A.3 Causation
31H General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ).
(2) However, if a person (the plaintiff ) has been negligently exposed to a similar risk of harm by a number of different people (the defendants ) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
31I Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Part 3A.4 Other provisions—negligence
31J Contributory negligence can defeat claim
In deciding the extent of a reduction of damages because of contributory negligence, a court may decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated.
31K Remedy available if claim fraudulent
(1) This section applies to a person if—
(a) the person did, or omitted to do, something in relation to a claim; and
(b) the person did, or omitted to do, the thing—
(i) for the purpose of obtaining a financial benefit; or
(ii) knowing that the thing (or something else resulting from doing or omitting to do the thing) is false or misleading.
Example of something done in relation to claim
the making of a statement
Example of something resulting from the doing of the thing
the statement
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) If this section applies to a claimant in relation to a claim—
(a) a person who has a liability in relation to a payment, settlement, compromise or judgment relating to the claim is relieved from the liability to the extent of the financial benefit obtained by the claimant; and
(b) a person who has paid an amount to the claimant in relation to the claim (whether under a settlement, compromise, judgment or otherwise) is entitled to recover from the claimant the amount of the financial benefit obtained by the claimant and any costs incurred in relation to the claim.
(3) If this section applies to a person other than a claimant in relation to a claim, the claimant is entitled to recover from the person as a debt the amount of the financial benefit obtained by the person and any costs incurred by the claimant in relation to the claim.