17/3/2025

Proportionate Liability Legislation:

Civil Liability Act (2002) - Contracting out (standard of care)

This note forms part of a series of notes about proportionate liability legislation in Western Australia. For more in this series, or for notes in other series or on other relevant topics of interest, please see: www.geoffreywakerandassociates.com.au

This note is the third in the series and follows Joint and several liability, versus proportionate liability and The Civil Liability Act (2002) - Introducing Proportionate Liability. Contracting out provisions differ across the Civil Liability Acts in each state of Australia. This paper is intended to address the relevant law in Western Australia only.

Introduction and background

The Civil Liability Act (WA) (CLA) was passed in 2002 and originally had only two operational parts: the first part dealt with claims for damages for personal injuries (including death) and the second part regulated advertising and touting for legal services relating to personal injury. In 2003 the scope of the CLA was expanded in a number of ways, partly codifying the law of negligence, including setting a standard of care to be taken by a person in precaution against a risk of harm to another in Part 1A of the CLA. 

The CLA standard of care

The standard of care under the CLA is contained in Part 1A - Section 5B(1)(c) as follows: A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless in the circumstances, a reasonable person in the person’s position would have taken those precautions.

That standard of care was intended to be set as a higher standard than ‘far fetched or fanciful’ but not so high as to limit the duty of care to ‘significant’ risks (see the Civil Liability Amendment Bill 2003 Explanatory Memorandum).

Contracting out of the CLA standard of care

When the scope of the CLA was expanded in 2003, a limited contracting out provision was included (section 4A) so as not to restrict a person’s right to make express provision for their rights under contract. Such contracting out requires agreement in writing.

Under section 4A, a written agreement signed by the parties to it may contain an express provision by which a provision of Part 1A (or 1B, 1C, 1CA, 1D, 1E or 1F) including the standard of care set in section 5B, is excluded, modified or restricted, and the CLA does not limit or otherwise affect the operation of that express provision in the agreement.

What is the relevant standard of care?

In considering the applicable standard of care to be taken by a person in precaution against a risk of harm to another, parties to such a written agreement must consider whether the standard of care set in the CLA has been excluded, modified or restricted by their agreement.

The CLA, including the codified standard of care, is intended to limit the circumstances in which an action for negligence may arise. It is therefore not surprising that in some circumstances, parties to a contract may prefer to exclude, modify or restrict the operation of that provision of the CLA and agree on their own applicable standard of care.

The terms of their contracting out agreement may or may not expressly mention the standard of care set in the CLA, however, the proper interpretation of their express contractual terms may modify the standard of care in section 5B.

Broadly speaking, it will be a matter of construction of the signed agreement of the parties whether it contains any objective or other criteria by which an agreed standard of care is to be inferred. The proper interpretation of a commercial contract is of course a matter of law.

Next in this Series on Proportionate Liability Legislation:

‘The Civil Liability Act (2002) – Contracting Out (Proportionate Liability)’.

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