Supreme Court of New South Wales

Part 1A

Negligence

Division 1 - Preliminary

In this Part:

“harm” means harm of any kind, including the following:

(a)  personal injury or death,

(b)  damage to property,

(c)  economic loss.

“negligence” means failure to exercise reasonable care and skill.

“personal injury” includes:

(a)  pre-natal injury, and

(b)  impairment of a person’s physical or mental condition, and

(c)  disease.


5A. Application of Part

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.


Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361

The respondent was hit and seriously injured during a motorcycle race training circuit. He brought proceedings seeking damages for breach of an implied warranty and, in the alternative, relied upon a cause of action in tort. The contractual claim was successful.

Pursuant to s 5A(1), Part 1A applies to any claim for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Therefore, no matter how the claim is framed, Div 5 of Part 1A can be engaged in respect of claims in contract. [20] [86]

High Court cases cited in discussion:

Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149

Paul v Cooke [2013] NSWCA 311

The respondent’s radiologist negligently failed to diagnose an aneurysm which later ruptured during an operation. On appeal, general observations about the language of s 5A were critical to the interpretation of ss 5D and 5I.

The reference to “negligence” in s 5A is not a reference to a tort, but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute of otherwise. When the statute is directed to a “duty of care”, it is confined in its operation to causes of action in respect of which duty of care is an element. When the Act is directed to tort, it says so. But where the Act provides that a person “is not negligent” (s 5B), “is not liable in negligence” (ss 5I and 5L), or “does not incur a liability in negligence” (s 5O), then it is directed to any claim for damages for harm resulting from a failure to exercise reasonable care and skill. The effect of s 5A is therefore that Part 1A applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill. [39]-[41]



Duty of care
Causation
Assumption of risk
Recreational activities
Professional negligence
Non-delegable duties and vicarious liability
Last updated:

23 Nov 2024

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