Law Reform Act 1995

The Act has broad reach across Queensland civil litigation.

Employers (including the Crown under s 4) lose the common-employment defence and cannot contract out of liability for employee-caused injuries (s 3). Employees injured at work gain a direct statutory pathway to full employer liability.

Tortfeasors—whether joint, several or concurrent—obtain and are exposed to statutory contribution rights under s 6(c) and s 7. Defendants in multi-party litigation must now assess their proportionate share rather than relying on doctrines that once allowed one party to escape liability entirely.

Claimants (including dependants under the Civil Proceedings Act 2011 pt 10) face mandatory apportionment of damages where their own lack of reasonable care contributed to the damage (s 10(1)). Fatal accident claimants likewise see dependency damages scaled down if the deceased was contributorily negligent (s 10(5)).

Spouses (including parties to dissolved or annulled marriages per s 12(3)) may sue one another in tort and claim for loss of consortium (ss 12–13). The reform removed the unity-of-person fiction that historically barred inter-spousal suits.

Medical practitioners, nurses and persons prescribed by regulation receive a conditional immunity when rendering emergency aid without remuneration (s 16). The protection extends to acts or omissions at the scene or during transport provided they are in good faith and without gross negligence.

Minors turning 18 obtain full legal capacity on the date they attain that age (s 17), affecting contracts, property dealings and litigation.

Married persons of either sex are expressly granted independent legal personality and capacity (s 18), removing any lingering disabilities in contract, property or litigation.

Public service employees and other State employees are exposed to wage attachment orders made by courts or registrars to satisfy civil judgments (s 18A), overriding earlier protections.

Courts and arbitrators (defined in s 5) receive expanded powers to apportion liability, stay spousal proceedings, record notional damages, direct contribution or indemnity, and attach wages. Juries in contributory-negligence trials must determine both total damages and the reduction percentage (s 10(7)).

Insurers, particularly those indemnifying employers or public authorities, must adjust reserves and settlement strategies to reflect the statutory contribution regime and the abolition of historic defences. The retrospective operation of the 2001 amendments (s 21) affects insurers handling legacy claims.

The Act creates several statutory duties and correlative rights.

Employers owe a non-excludable duty not to rely on the common-employment defence (s 3(1)). Employees gain a right to sue without that bar.

Tortfeasors possess a right to recover contribution from any other tortfeasor who is or would have been liable for the same damage (s 6(c)), quantified by the court on a just-and-equitable basis (s 7). The right is subject to indemnity exceptions.

Claimants have a right to recover damages undefeated by their own contributory negligence, albeit reduced proportionately (s 10(1)). They also obtain the procedural right to have the court record the notional full damages (s 10(3)).

Spouses enjoy a right of action in tort against each other equivalent to that of unmarried persons (s 12(1)) and a right to damages for loss or impairment of consortium assessed on the same basis as the former husband’s common-law claim (s 13(3)). The right is subject to judicial stay where no substantial benefit would accrue (s 12(2)).

Emergency medical volunteers hold a right to immunity from liability provided the four cumulative conditions in s 16 are met: emergency context, good faith, absence of gross negligence and no fee.

Persons who have attained 18 years possess full legal capacity (s 17). Married persons have an explicit right to independent legal personality and capacity equivalent to that of an unmarried person (s 18).

Judgment creditors gain a right to seek attachment of a public servant’s wages despite any contrary rule of law (s 18A).

Courts hold duties to apportion contribution justly (s 7), record notional damages (s 10(3)), scale dependency awards (s 10(5)), determine apportionment where a jury is empanelled (s 10(7)) and, where appropriate, stay spousal proceedings (s 12(2)).

The Act is civil rather than criminal. It contains no offence-creating provisions or direct monetary penalties. Enforcement occurs through civil proceedings in which the statutory rules alter the quantum or availability of damages and contribution.

Breach of the contribution regime may result in a defendant being ordered to pay a greater or lesser share than pleaded. Failure to plead contributory negligence may preclude reduction of damages. Wrongful reliance on a now-abolished common-employment defence will simply fail.

Section 3(2) renders void any contractual provision that purports to exclude employer liability for common-employment injuries; such clauses are therefore unenforceable rather than attracting a penalty.

Section 16 provides a shield rather than a sword; a volunteer who fails the good-faith or gross-negligence test loses the immunity and may face ordinary professional-negligence liability.

Wage attachment orders under s 18A are enforced through ordinary garnishment mechanisms; non-compliance by the employer (the State) would constitute contempt of court.

Costs consequences follow from s 6(b): a plaintiff bringing a subsequent action without reasonable ground loses costs.

Limitation statutes continue to interact with the Act (s 10(6)), so procedural non-compliance can still bar recovery or contribution.

The Act is expressly subordinate to the Civil Liability Act 2003 (s 4A). Personal-injury thresholds, caps and proportionate-liability rules in that Act therefore overlay the contribution and apportionment mechanisms in Part 3.

It cross-references the Civil Proceedings Act 2011 pt 10 for dependency claims (ss 5, 10(5)), the Succession Act 1981 s 66 for estate claims (s 10(5)), the Limitation of Actions Act 1974 for limitation defences (s 10(6)), the WorkCover Queensland Act 1996 for pre-2001 industrial injuries (s 21), and the Health Practitioner Regulation National Law for nurse registration (s 15).

The retrospective operation of the 2001 contributory-negligence amendments (s 21) interacts with accrued rights and pending proceedings, preserving pre-commencement final relief, settlements and certain WorkCover damages claims.

Spousal provisions (Part 4) interact with the Family Law Act 1975 (Cth) and state succession and property laws; the independent-capacity rule in s 18 removes any residual common-law disabilities that once affected married women’s contractual capacity.

The good-Samaritan immunity (s 16) sits alongside similar protections in the Civil Liability Act 2003 s 27 and federal analogues, but is narrower because it requires no-fee emergency medical care.

Wage attachment (s 18A) overrides general Crown immunity and public-service employment legislation but remains subject to federal industrial laws and bankruptcy rules.

Section 20 ensures that references in other Acts or documents to the predecessor statutes are read as references to corresponding provisions of the 1995 Act, preventing inadvertent repeal by obsolescence.

The statute has been amended incrementally rather than rewritten.

The Statute Law Revision Act (No 2) 1995 relocated provisions from four earlier Acts into this single statute without re-enactment, inserting the elaborate non-repeal savings in s 2 to preserve original meanings and commencement dates. The purpose was legislative housekeeping.

The Law Reform (Contributory Negligence) Amendment Act 2001 expanded the definition of “wrong” to include concurrent contractual duties of care (s 5) and gave the new apportionment rules retrospective effect (s 21), subject to transitional carve-outs. This aligned Queensland with modern Australian uniformity efforts and closed a gap where contractual claimants previously lost entirely on contributory negligence.

The Civil Liability Act 2003 inserted s 4A to subordinate the contribution and apportionment rules to that Act’s caps and thresholds, reflecting a policy shift toward containing personal-injury litigation costs after the early-2000s insurance crisis.

Successive health-practitioner statutes updated the definition of “nurse” (s 15) and removed the obsolete “medical practitioner” definition to track national registration.

The 2010 and 2011 amendments aligned dependency and fatal-claims language with the new Civil Proceedings Act 2011 and removed gender-specific references in the consortium provision (s 13), implementing equality reforms.

Section 18A was inserted in 1996 to facilitate enforcement of court orders against public servants, responding to practical difficulties in executing judgments against Crown employees.

No wholesale repeal or replacement has occurred; the Act remains a stable, if composite, framework.

Because the Act largely codifies long-settled reforms, reported challenges are few and narrow.

The retrospective operation of the 2001 amendments (s 21) generated transitional litigation concerning whether particular pre-2001 injuries fell within the WorkCover savings. Courts have strictly applied the “final relief” and “agreement to settle” limbs, refusing to reopen settled matters.

Contribution claims under s 6(c) have produced disputes over the meaning of “same damage”. Queensland courts have followed English authorities such as Royal Brompton Hospital NHS Trust v Hammond (although the statute itself supplies the test), emphasising that contribution is available only where the defendant’s liability is in respect of the identical damage for which the claimant seeks indemnity.

The “just and equitable” apportionment standard in ss 7 and 10(1) has been the subject of appellate guidance on appellate restraint; courts treat the trial judge’s percentage assessment as a discretionary evaluation reviewable only on House v The King principles.

Section 16’s good-faith and gross-negligence thresholds have been tested in emergency-room cases. Courts have emphasised that “gross negligence” requires a serious departure from reasonable care, not mere error of judgment, consistent with the legislative purpose of encouraging volunteer assistance.

Inter-spousal tort claims under s 12 have raised procedural-stay applications (s 12(2)). Courts have granted stays where the real dispute is matrimonial property and the tort action appears tactical, but refused them where genuine personal-injury damages are at stake.

The wage-attachment power (s 18A) has been challenged on constitutional grounds relating to Crown immunity, but the express “despite any other Act or rule of law” language has generally been upheld.

No High Court decision has struck down any provision; the Act’s validity is unquestioned. Controversies have instead centred on policy—whether the contributory-negligence apportionment sufficiently deters risky behaviour, and whether the good-Samaritan immunity is too narrow because it excludes paid or non-medical rescuers.

Most practitioners assume the Act is purely historical, yet s 21’s retrospective application to pre-2001 wrongs (subject only to narrow savings) still governs many long-tail claims. A defendant who fails to plead the precise transitional exclusion risks an adverse costs order.

The definition of “wrong” in s 5 now expressly captures concurrent contractual duties of care. Many older contribution deeds omit this, exposing insurers to unexpected exposure on contractual indemnity claims that would previously have been defeated by contributory negligence.

Section 10(6) contains a trap: where one tortfeasor successfully pleads a limitation defence, that tortfeasor cannot recover contribution from the other. Drafting a release that inadvertently triggers this bar can leave a settling defendant out of pocket.

The good-Samaritan immunity in s 16 is narrower than its Civil Liability Act 2003 counterpart. It applies only to registered medical practitioners and nurses (and prescribed persons) rendering medical care without fee. A paramedic employed by an ambulance service who is paid a salary may fall outside the protection, a point frequently missed in emergency-response litigation.

Section 13(4) prevents a husband from recovering both at common law and under the statute for the same loss of consortium. Because the statutory action is now gender-neutral, unwary counsel sometimes plead both, triggering the double-recovery bar and risking strike-out.

The non-re-enactment declaration in s 2(3)–(5) means that the original 1951, 1952, 1968 and 1973 Acts’ specific commencement dates continue to govern limitation and transitional questions. Relying solely on the 1995 Act’s numbering can produce an incorrect limitation expiry.

Courts have interpreted “gross negligence” in s 16 as requiring something more than ordinary negligence but less than recklessness. The distinction is fact-sensitive; an expert report that addresses only ordinary negligence may be insufficient to defeat the immunity at summary stage.

Finally, s 18A’s wage-attachment power operates “despite any other Act”. However, federal industrial instruments and the Bankruptcy Act 1966 (Cth) may still constrain attachment quantum. Compliance officers who treat the State as wholly immune from garnishment risk contempt when the court order is ignored.

Compliance begins with claim-by-claim analysis.

When acting for a defendant employer, never plead the abolished common-employment defence (s 3). Instead, obtain full instructions on contributory negligence and apportionment. Serve contribution notices on all potential concurrent tortfeasors within time limits, mindful that s 10(6) may bar recovery if a co-defendant successfully pleads limitation.

For plaintiff solicitors, plead the precise statutory language of s 10(1) and quantify both the notional full damages and the reduced sum. In fatal claims, ensure dependency damages are calculated after scaling for the deceased’s contributory negligence (s 10(5)). Advise clients that inter-spousal proceedings may be stayed if the court perceives no substantial benefit (s 12(2)).

Insurers should amend claims-handling manuals to reflect the expanded “wrong” definition and the interaction with the Civil Liability Act 2003. Reserve calculations must now incorporate potential contribution recoveries calculated on the “just and equitable” test in s 7.

Medical defence organisations should train members that the s 16 immunity is available only where there is no expectation of fee. Documentation of the emergency context, good faith and absence of gross negligence should be contemporaneous.

Government agencies must maintain payroll systems capable of complying with s 18A attachment orders. Human-resources policies should record that the statutory override applies notwithstanding any enterprise agreement.

In drafting contracts, exclude any clause that purports to reinstate the common-employment defence (void under s 3(2)). Indemnity clauses must be carefully worded to avoid the unenforceability trap in s 9(1)(c).

For transitional claims, maintain a separate file note identifying the exact date of the wrong and whether any of the s 21(2) carve-outs apply. Where the wrong predates 1 July 2001 and involves a WorkCover injury without final relief, the pre-2001 rules continue to govern.

Practitioners should maintain a copy of the predecessor Acts’ commencement dates and the 1995 relocation table. When limitation is in issue, calculate from the original enactment date rather than the 1995 consolidation date.

Finally, in multi-party mediations, prepare apportionment schedules that reflect each party’s relative causal responsibility as required by ss 7 and 10(1). Failure to do so routinely produces post-settlement contribution disputes that could have been avoided by early invocation of the statutory machinery.