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Tort Law - Negligence

Statutes - New South Wales

The statutory law in New South Wales as to negligence is governed by the Civil Liability Act 2002 (NSW). The key sections of the Act are presented hereunder in summary form with further explanations as needed:


Section 5B – Duty of Care - General Principals

A person is not negligent in failing to guard against a risk unless the risk is foreseeable, not insignificant and if a reasonable person in the defendant’s position would have taken appropriate precautions.

Sub-section 2 states that to determine whether a reasonable person would have taken such precautions a court must consider:

  • The probability of the harm

  • The likely seriousness of the harm

  • The burden of taking precautions

  • The social utility of the activity which created the risk.


Section 5D – Causation – General Principles

In determining that negligence was the cause of the harm incurred, a court must establish that:

  • the negligence was a necessary condition in the occurrence of the harm, and

  • it is appropriate for the scope of the defendant’s liability to extend to the alleged harm.


Under sub-section 2, in exceptional cases, the court is to consider whether it is appropriate to impose responsibility on the defendant. Those cases are when the alleged negligence is not established as an essential element, in determining whether causation is nevertheless established.


Section 5G – Injured Persons Presumed to be Aware of Obvious Risks

Where a risk of harm to the plaintiff is obvious, then they are presumed to be aware of it and voluntarily accepting it. The plaintiff then has an onus to disprove the presumption. The presumption of awareness of a risk stands if they are shown to be aware of a relevant kind of risk, even if they lack precise knowledge of it.


Section 5H – No Proactive Duty to Warn of Obvious Risk

Unless compelled by another law, the defendant need not issue any warning of a risk if it is obvious.


If the plaintiff has requested advice on the risk in question, then the duty does arise. It also does not apply if the defendant is a professional and the risk is a risk of death or personal injury from the defendant’s professional service...




Section 5I – No Liability for Materialisation of Inherent Risk


Section 5O – Standard of Care for Professionals


Section 5P – Professionals’ Duty to Warn of Risk


Section 5Q – Liability Based of Non-Delegable Duty


Section 5R Standard of Contributory Negligence


Section 5S – Contributory Negligence can Defeat a Claim


Section 12 – Damages for past or future economic loss—maximum for loss of earnings etc


Section 16 – Limits on Damages for Non-Economic Loss


Section 30 – Limitation on Recovery for Pure Mental Harm Arising from Shock


Section 31 - Liability Only for Recognised Psychiatric Illness


Section 32 - Mental Harm—Duty of Care


Section 49 - Effect of Intoxication on Duty and Standard of Care


Section 50 – No Recovery where Person Intoxicated


Section 57 – Protection of Good Samaritans


Section 69 – Effect of an Apology on Liability


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