Book – Annotated Civil Liability Legislation Queensland 6th Edition (2025)

Authors: Richard Douglas KC, Gerard Mullins KC and Simon Grant
Publisher: LexisNexis Australia
Reviewer: Kevin Holyoak

“Isn’t that this new personal injuries statute?”, an opponent said to me when I raised it in a commercial matter almost 20 years ago.  Such was the shock of the new then, coupled with the dawning realisation that the Civil Liability Act 2003 (Qld) (“CLA”) applied to vastly more than personal injuries.  Indeed, some of its most important aspects apply to civil liability generally or not to personal injuries at all.

Our appreciation of the scope, and application, of the CLA would not be so readily ascertainable were it not for this work, first published in 2004, by Richard Douglas KC, Gerard Mullins KC and Simon Grant.

As the cover rightly, and proudly, proclaims, this is the 20^th anniversary edition of the only comprehensive text annotating legislation the like of which this State had not experienced before in the area of civil liability. 

When the first edition was published, the then Chief Justice, De Jersey CJ, penned in the foreword that the fields of law which were to be regulated by the CLA were “exceedingly complex and daunting”, and the CLA had many “puzzling pathways”, but that the authors of this text had “come to the rescue” His Honour predicted that the text would “become a standard source of reference for the profession and the Courts”.

And so it has transpired to be, since the rather slender first edition.  The Courts have since wrestled with what Her Honour, the Chief Justice, when complimenting the scope of the work in the current foreword, refers to as a “testament to the complexity of this area of law and the prevalence of issues arising in Court proceedings leading to an increasing number of decided cases”.

Some of the changes introduced by the CLA were dramatic, such as “Proportionate Liability”.  This then novel regime is still being developed judicially.  It can be complex in its application.  With a few exceptions (notably personal injury claims), the centuries old era of solidary liability, where “1% is 100%”, ended.  The Plaintiff must now identify a “non‑apportionable claim” or join all alleged wrongdoers.  The Plaintiff bears the risk of the impecunious wrongdoer or an “empty chair”.  This text, and its national companion, are almost unique in its overview of the law before the enactment of proportionate liability and how it has developed (not always consistently) since.

Other changes have proved far more subtle before their importance was revealed.  One of those is the identification of the “risk” spoken of in the now statutory analysis of whether there is a breach of duty (itself an important defined concept in the CLA) in section 9 of the CLA.  The vital importance of the correct identification of the risk, now a statutory requirement, and its correct pleading, is essayed[1].  As a salutary warning, there is a discussion of authorities where a failure to identify the risk, and to plead it, correctly, to engage the statutory formula in section 9 of the CLA, are highlighted, including recent examples in the Court of Appeal.

Some areas are still yet to be fully worked out such as the complicated interface between the CLA (which relevantly refers only to a breach of “duty” as defined) and Commonwealth legislation such as the Australian Consumer Law (Cth)[2], which has the capacity to oust the CLA.  Another is the underdeveloped jurisprudence surrounding the modified Bolam test in section 22 of the CLA, in relation to claims against professionals.[3]

Other more recent amendments are also still being understood as decisions arise, or await decision.  These include the statutory “Sullivan v Gordon” provisions, starting with section 59A and the statutory imposition of liability of institutions for child abuse in Chapter 2, Part 2A. As with proportionate liability, these provisions are peculiar statutory responses where common law, or equitable, principles were thought by the legislature to be wanting or in need of reform.  This text is the first point of reference for those of us that seek to come to grips with how these reforms might apply, and frankly, in some instances, what the awkward, or opaque, text of the legislation may be held to mean.

As our understanding of the CLA continues to grow, that will be matched by our increasing reliance upon this text, which is also reflected in its expanded girth, now it is enjoying its 20^th birthday.

[1] Paragraphs 9.47 and 9.54.

[2] Paragraph 9.7 and 23.6.

[3] E.g. paragraph 22.14.