Chapters

Who can bring a claim? The plaintiff

A person who suffers a harm can claim. This includes spouses of deceased partners in certain circumstances. Where that person has died, dependants and persons listed in the Fatal Accidents Act 1934 (see Motor Vehicle Accidents) may also be able to claim.  Section 27 of the Administration and Probate Act 1935 (Tas) provides that the cause of action survives for the benefit of the deceased’s estate; therefore economic loss could be recovered. Under workers legislaiton, the dependents of workers can claim compensation.

Professionals

‘Professionals’ in tort law are generally lawyers, engineers, or registered medical practitioners. Section 22 sets out that a professional is deemed not to have breached a duty of care if their conduct at the time their professional service was provided was widely accepted by their peers in Australia at the time. The courts can reject the professional opinion If they consider the opinion is irrational. This is a defence only, and does not constitute the content of the duty of care.

Section 21 applies specifically to medical practitioners. It sets out that medical professionals do not breach their duty of care owed to a patient in failing to warn of a risk of medical treatment unless they fail to provide information about the risk. For example, an opthamological surgeon may provide pamphlets on Possible Blindness Resulting from Surgery to an older person about to undergo an operation for cataracts, and that person may subsequently go blind. However, because the surgeon provided the information, failure to warn of the risk does not constitute a breach of duty. Again, the standard of reasonableness applies – a reasonable person would want the information to make a reasonably informed decisions, and the registered medical practitioner ought reasonably know that patient would want that information before deciding on the treatment. So, being informed of a one in one billion risk that you will turn into a purple people eating monster is something that may fall outside the bounds of reasonableness. Although, the severity of such a consequence may mean that the risk will fall within the bounds.

If a registered medical practitioner must act promptly to avoid serious risk to the life or health of a patient and the patient is not able to hear of respond to a warning of risk, or there is not sufficient time to contact a person responsible for making a decision concerning a patient, the registered medical practitioner is excluded from the requirements set out in section 21.

Public Authorities

Changes in the law of negligence were directed, amongst other things, toward addressing issues of the liability of public authorities. To this end, the Civil Liability Act sets out the principles to be taken into account when determining whether a public authority has a duty of care and whether they have breached a duty of care. Resource allocation by the council, i.e. where they direct funding, can not be challenged in court. The standard by which public authorities are judged is that of the ‘reasonable public authority’. Reasonableness is an important legal standard.

With roads, public authorities will not be liable for their actions or inactions in relation to road conditions unless they were aware of the problem with those conditions before the incident in which the plaintiff suffered loss and/or damage. Other motoring issues are dealt with under Motor Vehicles.

Volunteers

Exemption of volunteers from liability depends upon satisfying three criteria: ‘volunteer’, ‘community work’ and ‘community organisation’. The volunteer must be doing community work for a community organisation. Some common categories for community work in Tasmania are: charitable, benevolent, educational or sporting. Organisations that are classified as community organisations are listed at Tasmania Online.

If a volunteer has satisfied these criteria and acted in good faith then they are immune from liability. However, this immunity does not operate if at the time the volunteer knew or ought to have known that they were acting outside the scope of the ‘community work’ of the organisation, were acting contrary to instruction or were significantly impaired by drugs (excluding prescription drugs) or alcohol, and this intoxication was voluntary. Community organisations incur the liability of their volunteers.

Food Donors – section 8B

Provided that a food donor donates food in good faith for a charitable purpose, and the food left the donor in a state that was fit for consumption, they are protection from liability for death or personal injury that results from consumption of that food.

Good Samaritans – section 8A

The term ‘Good Samaritan’ is derived from the Bible, in which a parable tells of a man who was robbed in the road, and no one would help him, until the arrival of the Good Samaritan. A Good Samaritan is a person who acts to assist or advise another person, unattached to any organisation or professional role, and thus acts as a volunteer. Under the Civil Liability Act, if the Good Samaritan acts in good faith and without recklessness in providing aid they are not liable in any civil proceeding for anything they did or did not do. This does not apply if they were significantly impaired by voluntarily consumed alcohol or drugs, including medication.

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