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If someone has told you that a defence under the Civil Liability Act defeats your claim, you are right to question it. These defences are raised constantly — by insurers, by solicitors acting for the professional who harmed you, and sometimes by the professional themselves. They are raised early, framed confidently, and designed to make you doubt whether pursuing the matter is worth the effort.
Many of them fail.
That is not optimism. It is what the case law consistently shows. Defences under the Civil Liability Acts are real legal arguments — but they must be proved, they are subject to judicial scrutiny, and in professional negligence cases specifically, Australian courts have held professionals to a high standard rather than allowing vague defences to extinguish legitimate claims.
Understanding what these defences actually mean — and where they fall apart — is the first step to knowing where your claim stands.
What are Civil Liability Act defences? Civil Liability Act defences are legal arguments raised by a defendant — or their insurer — in a professional negligence claim to avoid or reduce liability. They operate under the Civil Liability Acts in each Australian state and territory. A successful defence can either defeat a claim entirely or reduce the damages recovered. Importantly, the burden of proof for most of these defences sits with the defendant, not with you.
When a professional is sued for negligence, their professional indemnity insurer typically takes control of the defence. These insurers are experienced litigation managers. Identifying available defences is one of the first things they do.
That is a practical reality, not a reason for alarm. An insurer raising a defence and an insurer successfully proving a defence are two very different things. The burden of proof for most Civil Liability Act defences — including contributory negligence and voluntary assumption of risk — sits with the defendant, not with you.
What it does mean is that you need legal representation capable of probing those defences properly. An insurer running a contributory negligence argument on a flimsy basis is a very different problem from one with genuine supporting evidence. The difference only becomes clear when both arguments are properly tested in front of a court.
Each of the following defences may be raised by a professional defendant or their insurer. For each one, the critical question is not whether it has been raised — but whether it can be proved. Here is what each defence means and where it is most vulnerable to challenge.
Contributory negligence is the most commonly raised defence in professional negligence claims. It does not mean your claim fails — it means the defendant is arguing that your own conduct contributed to the loss, and that your damages should be reduced proportionately.
Under the Civil Liability Acts, contributory negligence operates as a damages-reduction mechanism, not a complete bar to recovery. If a court accepts that you were 25% responsible for your loss, your damages are reduced by 25%.
In Astley v Austrust Ltd (1999) 197 CLR 1, the High Court examined this in the context of a professional retainer. The principle is important: a professional cannot deflect blame onto a client for failing to catch the very mistake the client engaged that professional to prevent. A solicitor retained to manage compliance deadlines cannot argue the client contributed to the negligence by trusting the solicitor to do their job.
Some Civil Liability Acts limit liability where harm arose from an obvious risk — one apparent to a reasonable person in the claimant’s position. In professional negligence cases, this defence is significantly narrowed.
The reasoning is straightforward: clients engage professionals precisely because something is not obvious to them. A patient does not know which surgical risks are clinically significant. A small business owner does not know which tax structures carry audit exposure.
Section 5H of the Civil Liability Act 2002 (NSW) does not extend the obvious risk exclusion to negligent advice given in a professional capacity. Similar carve-outs exist in equivalent legislation across other states. An insurer arguing obvious risk in a professional advice context is usually on very weak ground.
An inherent risk is one that cannot be avoided even if a reasonable practitioner does everything correctly. It is not the same as a foreseeable risk that could have been reduced with better care.
This defence arises most often in medical negligence — where a surgical complication is genuinely unavoidable regardless of surgical skill — and occasionally in engineering contexts. It is rarely relevant in advice-based professional negligence, where the harm flows from what was said or omitted.
The key question courts ask is whether the harm arose from an inherent characteristic of the procedure, or from how the professional conducted themselves. A complication that occurs despite textbook technique is different from one caused by a technique that fell below accepted standards.
This defence requires the defendant to prove that you fully understood the specific risk that caused your loss and freely agreed to accept it. Both elements must be established — knowledge alone is not enough.
In professional negligence, this defence almost never succeeds. The High Court’s approach in Rogers v Whitaker (1992) 175 CLR 479 is instructive: a patient who consents to a medical procedure does not thereby consent to negligent execution of it. Engaging a solicitor, financial adviser, or engineer involves accepting that outcomes are uncertain — not accepting that the professional may act carelessly.
Insurers occasionally run this argument where a client was told about risks but proceeded anyway. Courts distinguish between informed acceptance of a professional risk and genuine assumption of specific negligence that followed.
Proportionate liability limits how much of the total loss any single defendant must pay where multiple parties were at fault. Under Part 4 of the Civil Liability Act 2002 (NSW) — and equivalent provisions in other states — where a claim involves pure economic loss or property damage and multiple concurrent wrongdoers contributed, each defendant is only liable for their proportionate share.
This matters practically. If your financial adviser and your accountant both contributed to a significant investment loss, each may argue they are only responsible for part of it. The risk for claimants is that one defendant proves insolvent or uninsured, leaving a gap in recovery.
The response is to identify all potential defendants early and join them to the proceedings. A specialist professional negligence lawyer will structure the claim to address proportionate liability from the outset.
Several Civil Liability Acts — most notably section 5O of the Civil Liability Act 2002 (NSW) — provide that a professional is not negligent if they acted in a manner widely accepted by a significant number of respected practitioners in the field at the time.
It sounds broad. In practice, it is not. Courts retain the power to reject a peer opinion that is not rational or not based on competent professional judgment. In Dobler v Halverson (2007) 70 NSWLR 151, the court made clear that a defendant cannot hide behind widespread practice if that practice itself fell short of a proper standard.
Defeating this defence requires expert evidence — which is exactly what specialist professional negligence litigation assembles.
Being confronted with a Civil Liability Act defence should not be the end of the conversation. It should be the beginning of a more precise legal analysis.
Every defence has elements. Those elements must be proved by the party raising them. The case law is full of examples where those elements were not proved to the court’s satisfaction — and claimants recovered in full.
What matters is whether you have legal representation that understands these defences in depth — not just their name, but where the evidence must go and what arguments reliably defeat them. Accepting an insurer’s characterisation of a defence without specialist scrutiny is not a risk worth taking.
The Civil Liability Acts modified the common law of negligence — they did not replace it entirely. Courts still look to common law principles where a statutory provision does not squarely govern the situation, and the relationship between the Acts and the common law varies between states and territories.
This layered legal landscape matters for defences. Some common law defences have been codified and narrowed by the Acts. Others retain their original common law form. A professional negligence claim involving an unusual factual situation — or a defendant raising a novel defence argument — may require analysis of both the statutory and common law position. This is precisely why generalist legal advice is insufficient when the stakes are significant.
The High Court in Rogers v Whitaker (1992) 175 CLR 479 rejected the proposition that a doctor’s compliance with a common professional practice was a complete answer to a negligence claim. The court held that the standard of care is set by the court, not by the profession. Peer opinion is relevant — it is not determinative. That principle has been applied well beyond medical negligence.
In Perre v Apand Pty Ltd (1999) 198 CLR 180, attempts by the defendant to deny the existence of a duty of care and limit liability through proximity arguments failed. The High Court recognised a wide duty where the defendant knew — or ought to have known — of the claimant’s vulnerability to economic loss.
In Tabet v Gett (2010) 240 CLR 537, the defendant’s arguments about causation and the proper measure of loss in a medical negligence context were closely scrutinised. The case illustrates that technical causation arguments will be examined carefully against the evidence — not accepted at face value.
The pattern across these cases is consistent: Australian courts do not hand defendants easy exits when professionals have fallen short of the standard their clients were entitled to expect.
Across most Australian states and territories, professional negligence claims must be commenced within three years of the date you discovered — or reasonably should have discovered — the negligence. In some states, a longer general period may apply to certain types of claims. Missing the deadline can permanently extinguish your right to claim, regardless of how strong your case may be.
If you are uncertain whether your limitation period is still open, get a free assessment from our team as soon as possible. Time is the one thing that cannot be recovered once it is gone.
A defence being raised is not the same as a defence being proved. Here is the practical path forward if you have been told that a Civil Liability Act defence defeats your claim.
If you have been told that a Civil Liability Act defence defeats your claim, do not treat that as the final word. Many of these defences are harder to establish than they appear — and many fail when they are properly challenged with the right legal analysis and expert evidence.
Get a free, confidential evaluation from our team and find out where your claim actually stands. We act only for claimants — never for insurers or defendants — so our assessment is entirely on your side.
Some defences — like voluntary assumption of risk — can in theory defeat a claim entirely. But in professional negligence cases, these complete defences are very difficult to establish. Courts impose a high evidentiary bar, particularly where a client relied on a professional’s expertise. The more common outcome is that a defendant reduces damages through contributory negligence rather than escaping liability altogether.
Contributory negligence means your own conduct partly contributed to the loss, and your damages are reduced proportionately. Voluntary assumption of risk means you knowingly and freely accepted the specific risk that caused your harm. The second defence is far harder to prove and rarely succeeds in professional negligence claims. The first is more common but does not extinguish your claim.
No. Courts can — and do — reject peer professional opinion where it is not rationally defensible. The defence under section 5O of the Civil Liability Act 2002 (NSW) requires the practice to be widely accepted by a significant number of respected practitioners. If expert evidence challenges the rationality or currency of that practice, the defence can fail.
Proportionate liability means that where multiple parties contributed to your loss, each is only responsible for their proportionate share. It can reduce what you recover from any single defendant. The practical response is to identify all liable parties early in the proceedings and join them to the claim, so that the full loss is addressed.
No. Contributory negligence reduces damages — it does not defeat the claim outright. Courts also scrutinise these arguments carefully in professional negligence cases. A professional cannot blame the client for relying on the very advice or service the professional was retained to provide.
Each concurrent wrongdoer is liable for their share of the total loss. Your legal team should identify all parties who contributed — a firm and an individual within it, multiple advisers, or a professional and a related third party — and structure the claim accordingly. Failing to join a relevant defendant can leave a gap in your recovery that proportionate liability will not automatically fill.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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