Contents
Terms of Reference:  Principles‑based 
Review of the  Law of Negligence	ix
Panel of Eminent Persons	xiii
List of Recommendations	1
1.	Introduction	25
The formation of the Panel and the Terms of Reference	25
The general task of the Panel	26
The scope of the Review	27
Considerations underlying the Report	29
The Review timetable	31
The absence of empirical evidence and its consequences	32
The composition of the Panel	33
Consultations and submissions	33
The structure of the Report	33
Acknowledgments	34
2.	Implementation of the Panel's Recommendations	35
Overarching recommendation	35
3.	Professional Negligence	37
Preliminary:  the dichotomy between treatment and information	37
Treatment	37
The provision of information	45
Expert evidence	54
Another procedural issue	57
Other relevant issues	57

4.	Not‑for‑Profit Organisations	59
Exemption from or limitation of liability	59
Recreational activities and services:  NPOs	61
Recreational activities and services generally	62
Warning and giving notice of obvious risks	67
Emergency services	69
5.	Trade Practices	71
The Interaction between the Trade Practices Act and the law of negligence	72
Part IVA	74
Part V Div 1	76
Part V Div 1A, Part V Div 2A and Part VA	79
Consumer protection	80
Section 74, s 68 and the Bill	81
6.	Limitation of Actions	85
The nature of limitation periods	85
Limitation period issues	86
The date when the limitation period  should commence	87
The long-stop provision and the discretionary power to extend	92
Suspension of the limitation period:  minors and incapacitated persons	94
Survival of actions	98
Contribution between tortfeasors	99
Early notification system	99
7.	Foreseeability, Standard of Care, Causation and Remoteness of Damage	101
General introduction	101
Standard of care	102
Emergency services and the standard of care	107
Causation and remoteness of damage	108
The two‑pronged test of causation:  factual causation	109
The two‑pronged test of causation:  liability for consequences	114
8.	Contributory Negligence, Assumption of Risk and Duties of Protection	121
Contributory negligence	121
Assumption of risk and 100 per cent contributory negligence	127
Assumption of risk	129
Duties of protection	131
9.	Mental Harm	135
Types of mental harm	135
Pure mental harm	136
Consequential mental harm	146
Expert Evidence	149
10.	Public Authorities	151
The problem addressed	151
A policy defence	153
An argument of principle for the policy defence	154
When should the policy defence be available?	155
The effect of the policy defence	157
Compatibility	160
Breach of statutory duty	161
11.	Non‑Delegable Duties and Vicarious Liability	165
What are non‑delegable duties?	165
The problem with non‑delegable duties	167
Volunteers	170
12.	Proportionate Liability	173
The concepts of joint and several liability and proportionate liability	173
Law reform, academic and legislative opinions regarding the issue	175
Arguments advanced against solidary liability	176
The problem with proportionate liability	178
An option for proportionate liability	178
Contribution between parties liable for the same harm	179
13.	Damages	181
The Panel’s approach to this Term of Reference	181
The need for national consistency	183
Legal costs of smaller claims	185
General (or non‑economic) damages	186
Damages for loss of earning capacity	195
Cost of care	198
Gratuitous care	199
Damages for loss of capacity to care for others	205
Property modifications	207
Expenses of visits by relatives	207
Discount rates	208
Interest	212
Damages recoverable by dependants of persons killed
as a result of wrongful acts or omissions	213
Structured settlements	214
Loss of superannuation benefits	217
Collateral benefits	218
Exemplary and aggravated damages	224
Indexation of fixed monetary amounts	227
Appendices	229
Appendix A:  Trade Practices Act 1974 and state and territory equivalents	230
Definitions	237
List of Submissions	241
List of Consultations and Advice	245
Table of Cases	249
Table of Legislation	253
List of Tables	255