Australia: More Trips Less Stumbles in Litigation

Last Updated: 29 February 2012
Article by Samantha Kelly

The year saw a positive trend of courts reverting to a stricter interpretation of civil liability legislation; a development that may give litigants greater certainty regarding the application of the law. There was a decrease in overall filings of initiating processes in all courts, but a notable increase in claims for compensation arising out of public liability incidents.

In New South Wales, the proposed amendments to Part 2A of the Civil Liability Act 2002 (NSW) (CLA), requiring parties to take reasonable steps to resolve disputes before they commence court proceedings, have been postponed for 18 months. The amendments, requiring parties to engage with one another in order to narrow or resolve a dispute before commencing proceedings, have been postponed in order to enable the success of similar provisions commenced in the Federal Court to be monitored.

There were a number of decisions in 2011 of interest to insurers.


Rockhampton City Council was unsuccessfully sued by a plaintiff rendered quadriplegic after striking his head on the bed of the Fitzroy River following a jump from an improvised rope swing. In Felhaber v Rockhampton City Council [2011] QSC 023, the Queensland Supreme Court found the exercise of reasonable care did not require the defendant council to take the steps the plaintiff submitted as the activity was a voluntary recreational activity, the risk was obvious and the council did not encourage persons to engage in the activity.

It was submitted for the plaintiff that the council should have made a greater response to the activity, for example by removing the tree or erecting signs prohibiting use of the swing. The court did not believe that that particular hazardous place should have been singled out from the significant area of parkland and waterway for which the council was responsible. The court also considered the defence of voluntary assumption of risk and asked "whether there was any compulsion or obligation on the plaintiff to accept the risk, or no opportunity to avoid incurring it". In finding the answer to be no, the court found the defence made out.


In Vreman and Morris v Albury City Council [2011] NSWSC 39, the plaintiff alleged the defendant was negligent in painting the concrete surface of a skate park, which allegedly caused the plaintiff to fall from his BMX bike whilst attempting a jump.

The New South Wales Supreme Court considered the application of section 5L of the CLA, whether BMX bike riding was a dangerous recreational activity and whether the plaintiff's injuries were the materialisation of an obvious risk. In finding for the defendant, the court found that BMX bike riding at the skate park was a dangerous recreational activity and that a reasonable person would have been aware that the slippery surface of the skate park would have increased the risk of injury, and the risk of injury was obvious.


In Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356 (Elphick decision), the Court of Appeal dismissed the appeal brought by Mr Elphick against Westfield as the occupier of his place of employment where he had suffered a work injury. Mr Elphick was employed by All Cleaning & Security Pty Ltd (ACS) as a cleaner at a Westfield shopping centre. The accident occurred in the loading dock when Mr Elphick was removing cardboard boxes from an unstable cage. The terms of the contract between ACS and Westfield were critical in determining the role of each party and whether a duty of care had been breached.

Westfield as occupier was held to have no liability to Mr Elphick because it was not responsible for supervising the system of work put in place by ACS. In accordance with the contract, ACS was responsible for devising, implementing and supervising the system of work. Westfield's duty of care only extended to taking reasonable care for Mr Elphick's safety as an entrant upon the premises.

The Elphick decision also considered the unique legal issue of dual legal representation for one party. ACS was represented by different solicitors in both the District Court and the appeal proceedings. One solicitor defended ACS' contractual liabilities and the other prosecuted ACS' workers compensation insurer's entitlement to recovery of workers compensation payments made to Mr Elphick as a result of his injury.

Even though there are no specific rules permitting or forbidding separate representation, the Court of Appeal emphasised the general rule that insurers cannot have separate representation and a court must grant leave for separate representation to occur. Any assumption that there is an entitlement to separate representation was a "myth... that must be exploded".


The Court of Appeal reaffirmed the importance of addressing the elements of section 5B of the CLA in determining whether there has been a breach of duty of care under the CLA in Bader v Jelic [2011] NSWCA 255. Section 5B provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and in the circumstances a reasonable person in the defendant's position would have taken those precautions.

Mr Jelic, a telecommunications mechanic, visited the Baders' home to undertake some work. He mistook a glass window for a door, stumbled into it and broke the glass window. The Court of Appeal considered it of significance that no similar accident had occurred in the five years prior to Mr Jelic's accident. That factor was considered relevant to the question of whether a reasonable person in the Baders' position would have taken precautions such as pulling the blinds down over the window.

The Court of Appeal also considered that whilst a cautious and observant home owner might have identified a significant risk, that does not mean the reasonable person would necessarily have identified the risk and taken steps to avoid persons like Mr Jelic having an accident. The Court of Appeal also considered that causation would not be proved by Mr Jelic as it was mere speculation as to whether he would not have stumbled on the rug had the blind been down.


In Lithgow City Council v Craig Jackson [2011] HCA 36, the High Court ruled that an ambiguous and obscure note made by an ambulance officer about the cause of an accident was inadmissible. In the early hours of the morning of 18 July 2002, Mr Jackson was found injured and unconscious in a drain in Lithgow. On the northern side of the drain was an unfenced headwall. There were no witnesses and Mr Jackson has no recollection of how he came to be in the drain. The only evidence of what might have occurred was a note contained in the ambulance retrieval record that stated "? fall from 1.5m onto concrete".

The Court of Appeal had accepted that the ambulance note was evidence of how Mr Jackson came to be in the drain, despite the ambulance officer not being called to give evidence at the trial or provide any information as to how he came to hold that belief.

The council appealed to the High Court on the basis that the ambulance note represented an opinion pursuant to section 76 of the Evidence Act 1995 (NSW) (Evidence Act) in circumstances where the ambulance officer was not an eyewitness to the incident, and therefore inadmissible.

The High Court held the note was ambiguous and so shrouded in obscurity it was not possible to find that the note stated an opinion that Mr Jackson fell from the headwall. Further, the note said nothing about what the ambulance officer observed or perceived as to the location of Mr Jackson's body in relation to the physical features of the location, thereby not overcoming the exception to the hearsay rule in s. 78 of the Evidence Act. The note was held to be inadmissible.


Despite the developments outlined above, there continue to be examples of cases decided in favour of plaintiffs that offer a surprising extension of the duty of care of defendants such as local councils.

An example is the District Court's decision in the matter of Dylan Kuehne, by his tutor Peter Kuehne v Warren Shire Council [2011] NSWDC 30. Tyra Kuehne, a child, had been mauled to death by dogs in a backyard and a claim for psychiatric injuries was made by Tyra's brother and father as a result of the circumstances of Tyra's death.

Prior to the accident, the council had received a number of complaints about dogs roaming and defecating in the streets. However, there was no evidence council had received any complaints about these dogs, and the dogs had only been moved to the backward two weeks before the incident.

The court found that the council had breached its duty of care owed under the Companion Animals Act 1998 (NSW) to make a dangerous dog declaration over the dogs. The provisions of this Act created an obligation on the council to exercise its powers and a reasonable council would have issued a dangerous dog declaration over the dogs. Most surprisingly, the court held that Tyra's accident would not have occurred if the council had issued the dangerous dog declarations and removed the dogs from the property. The court also accepted that the council's failure to act caused Tyra's death and, as a result, the plaintiff's injuries.

Council's appeal to the NSW Court of Appeal is listed for hearing in early 2012.


In Harmer v Hare [2011] NSWCA 229, Mr Hare suffered injuries whilst driving Mr Harmer's car. Mr Harmer had been too intoxicated to drive. The tyres of Mr Harmer's vehicle were bald and it had also been raining on the day of the accident. Mr Harmer had not told Mr Hare about the state of his vehicle's tyres. As Mr Hare drove through a roundabout, he lost control of the vehicle and crashed into a telegraph pole, suffering severe injuries as a result. The evidence established that Mr Hare lost control of the vehicle because they tyres were bald.

The Court of Appeal placed the standard of care of owners of defective vehicles high, finding that the duty of care is not simply to warn others of the defect, but also to prevent others from driving the defective vehicle.

In the absence of any reasonable cause to suspect a defect, the driver themselves is not required to ask the owner whether a vehicle they are about to drive is roadworthy.


With legislation and the courts taking a greater role in pre-litigation and also pre-hearing steps, we can expect the time between commencement of proceedings and judgment to consistently to decrease. We can also expect more pressure on parties to have cases properly prepared for hearing and penalties for any lapses.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.