BSB250 · Business Citizenship
Negligence II: Breach, Causation & Defences
This chapter runs the back three elements of a negligence claim once a duty of care is assumed: breach (the standard of care, now codified in the Civil Liability Act 2003 (Qld) s 9), causation (the 'but for' test plus scope of liability under s 11), and the two examinable defences. It matters because BSB250's open-book exam is won here on the ILAC rail — you must cite the section first, attach the case, run the gates in order, and stop at the first failure.
What this chapter covers
- 01Standard of care & the s 9(1) breach gate (foreseeable + not insignificant + reasonable precautions)
- 02The calculus of negligence: s 9(2) factors weighed, not tallied
- 03Factual causation — the 'but for' test (s 11(1)(a))
- 04Scope of liability / remoteness & novus actus interveniens (s 11(1)(b))
- 05Recognised damage: actual, not too remote
- 06Voluntary assumption of an obvious risk (volenti, s 13–14) — complete defence
- 07Contributory negligence — damages reduced by apportionment
- 08Sequencing the negligence answer: gates in order, defences last
Breach, the 'but for' defeater & a defence (ILAC)
- +1Issue: Did Priya breach her duty of care, and did any breach cause Tom's injury so as to found liability in negligence?
- +2Breach — CLA s 9(1): the risk of a learner getting into difficulty in the deep end is foreseeable and not insignificant (drowning is grave even if low-probability — Rogers v Whitaker). Weighing s 9(2): seriousness is high (Paris v Stepney BC), the burden of staying on deck is negligible (Latimer v AEC), and a personal call has no social utility (cf Watt v Hertfordshire CC) — a reasonable coach would have kept watch, so breach is established.
- +1Causation — CLA s 11(1)(a) 'but for' test: but for Priya leaving the deck, would Tom have been incapacitated? The undiagnosed cardiac condition means the event would have occurred regardless of supervision (Barnett v Chelsea & Kensington Hospital), so the breach was not a necessary condition and factual causation FAILS.
- +1Conclusion: because causation is not made out, negligence is not established — the claim stops at s 11(1)(a), so we never reach scope of liability, damage, or any defence (the signed form / volenti would only have mattered had the claim survived).
Key terms
- Breach of duty (CLA s 9(1))
- Falling below the standard of a reasonable person in the defendant's position; no breach unless the risk was foreseeable, not insignificant, and a reasonable person would have taken the precautions.
- Calculus of negligence (s 9(2))
- The factors a court weighs together to decide if precautions were reasonable: probability of harm, likely seriousness, burden of precautions, and the social utility of the activity. They are weighed, never tallied.
- Factual causation / 'but for' test (s 11(1)(a))
- The breach must be a necessary condition of the harm: but for the breach, would the harm have occurred? If it would have happened anyway, causation fails (Barnett v Chelsea & Kensington Hospital).
- Scope of liability / remoteness (s 11(1)(b))
- Even with factual causation, liability extends only where the actual type of harm was reasonably foreseeable; a novus actus interveniens (independent intervening act) can break the chain.
- Volenti non fit injuria
- Voluntary assumption of an obvious risk — a complete defence requiring the plaintiff was aware of, understood, and voluntarily accepted the specific risk that eventuated; CLA s 13 defines an obvious risk and s 14 presumes awareness of it.
- Contributory negligence
- The plaintiff's own carelessness contributed to the harm; not a complete defence — instead damages are reduced by the proportion the court considers just and equitable (apportionment).
Negligence II: Breach, Causation & Defences FAQ
Is breach in Queensland decided by common law or statute?
By statute. The Civil Liability Act 2003 (Qld) s 9 codifies the breach test: s 9(1) is a three-limb gate (foreseeable + not insignificant + a reasonable person would have taken precautions) and s 9(2) lists the calculus factors. In the exam, cite the section first and use cases like Wagon Mound (No 1), Bolton v Stone, Paris, Latimer and Watt to show how each limb applies.
What is the difference between factual causation and scope of liability?
They are the two steps of s 11. Factual causation (s 11(1)(a)) is the 'but for' test — was the breach a necessary condition of the harm? Scope of liability (s 11(1)(b)) asks whether it is appropriate for liability to extend to that harm, i.e. was the actual type of harm reasonably foreseeable and was the chain unbroken by an intervening act? Both must pass, in order.
Why does a clear breach sometimes still lose the case?
Because of the 'but for' defeater. If the harm would have occurred regardless of the breach — for example due to a pre-existing condition or an inevitable accident — the breach was not a necessary condition, so factual causation fails under s 11(1)(a) (Barnett). The claim ends there and you never reach damage or defences, even though the defendant was careless.
What is the difference between volenti and contributory negligence?
Volenti (voluntary assumption of an obvious risk) is a complete defence that defeats the whole claim, but it is narrow — the plaintiff must have accepted the specific risk that materialised, not a general one. Contributory negligence is only partial: the plaintiff still recovers, but damages are reduced by apportionment for their own carelessness.
Does signing a waiver automatically defeat a negligence claim?
No. A waiver or warning is evidence the plaintiff knew of and accepted a risk, but it is not conclusive. The court still tests awareness, understanding and voluntariness on the facts, and reads broad waivers narrowly — acknowledging general 'soreness' or 'fatigue' rarely covers the specific risk of injury from the defendant's own negligence.
Exam move
Treat the answer as a rail and walk it in strict order, stopping at the first failure: duty (assumed) then breach (CLA s 9: run s 9(1) as a three-limb gate, then argue each s 9(2) factor both ways to a net call, attaching Paris / Latimer / Watt) then causation (CLA s 11: 'but for' under s 11(1)(a) with Barnett, then scope/remoteness under s 11(1)(b)) then damage, then defences last. Always cite the section first and the case second. The highest-yield move is hunting the buried 'would-have-happened-anyway' fact — if you find it, factual causation fails and the claim is over, so do not waste time writing defences for a claim that has already died. In the open-book exam, keep a one-page ILAC skeleton with the section numbers and one case per limb so you can apply, not just recite.
