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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Trade
Practices Amendment (Personal Injuries and Death) Bill (No. 2)
2004
No. ,
2004
(Treasury)
A Bill
for an Act to amend the Trade Practices Act 1974, and for related
purposes
Contents
Trade Practices Act
1974 3
A Bill for an Act to amend the Trade Practices Act
1974, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Trade Practices Amendment (Personal
Injuries and Death) Act (No. 2) 2004.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 4(1)
Insert:
personal injury has (except in section 68B) a meaning
affected by section 4KA.
2 After section 4K
Insert:
In this Act (except in section 68B):
personal injury includes:
(a) pre-natal injury; or
(b) impairment of a person’s physical or mental condition;
or
(c) disease;
but does not include an impairment of a person’s mental condition
unless the impairment consists of a recognised psychiatric illness.
3 At the end of subsection
74J(3)
Add:
Note: Part VIB restricts awards of compensation for
death or personal injury, and sets out time limits for commencing actions for
compensation for death or personal injury.
4 At the end of Division 2A of
Part V
Add:
This Division has effect subject to Part VIB.
5 At the end of subsection
75AO(2)
Add:
Note: Part VIB restricts awards of compensation for
death or personal injury, and sets out time limits for commencing actions for
compensation for death or personal injury.
6 At the end of subsection
82(2)
Add:
Note: Part VIB restricts awards of compensation for
death or personal injury, and sets out time limits for commencing actions for
damages for death or personal injury.
7 At the end of subsection
87(6)
Add:
Note: Part VIB restricts awards of compensation for
death or personal injury, and sets out time limits for commencing actions for
compensation for death or personal injury.
8 At the end of Part VI
Add:
This Part has effect subject to Part VIB.
9 Before Part VII
Insert:
In this Part, unless the contrary intention appears:
applicable percentage has the meaning given by subsection
87Q(2).
average weekly earnings has the meaning given by
section 87V.
capable parent or guardian, of a minor, means a person who is
a parent or guardian of the minor, and who is not under a disability.
date of discoverability has the meaning given by
section 87G.
gratuitous attendant care services has the meaning given by
subsection 87W(5).
incapacitated person means a person who is incapable of, or
substantially impeded in, the management of his or her affairs in relation to a
proceeding under this Act because of:
(a) any disease, or any impairment of his or her mental condition;
or
(b) restraint of his or her person, lawful or unlawful, including
detention or custody under a law of a State or Territory relating to mental
health; or
(c) war or warlike operations, or circumstances arising out of war or
warlike operations.
index number has the meaning given by
section 87N.
long-stop period has the meaning given by
section 87H.
maximum amount of damages for non-economic loss has the
meaning given by section 87M.
minor means a person under 18.
most extreme case has the meaning given by subsection
87P(2).
non-economic loss means any one or more of the
following:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life;
(d) disfigurement.
personal injury damages means damages or compensation for
loss or damage that is, or results from, the death of or personal injury to a
person.
plaintiff, in relation to a proceeding, means:
(a) if the proceeding is a proceeding that the Commission commences under
section 75AQ or paragraph 87(1A)(b)—a person on whose behalf the
Commission commences the proceeding; or
(b) in any other case—the person by whom the proceeding is brought
(however described).
proceeding to which this Part applies means a proceeding
referred to in section 87E.
quarter means a period of 3 months ending on 31 March,
30 June, 30 September or 31 December.
This Part applies to proceedings taken under this Act:
(a) that relate to Part IVA, to Division 1A or 2A of Part V
or to Part VA; and
(b) in which the plaintiff is seeking an award of personal injury
damages.
(1) A court must not award personal injury damages in a proceeding to
which this Part applies if the proceeding was commenced:
(a) after the end of the period of 3 years after the date of
discoverability for the death or injury to which the personal injury damages
would relate; or
(b) after the end of the long-stop period for that death or
injury.
(2) This diagram shows when this Division prevents an award of personal
injury damages.
Definition
(1) The date of discoverability for the death or injury is
the first date when the plaintiff in the proceeding knows or ought to know each
of the following:
(a) that the death or personal injury has occurred;
(b) that the death or personal injury was attributable to a contravention
of this Act;
(c) that in the case of a personal injury—the injury was significant
enough to justify bringing an action.
Constructive knowledge
(2) For the purposes of subsection (1), the plaintiff ought to
know a fact if the plaintiff would have ascertained the fact had the
plaintiff taken all reasonable steps before the date in question to ascertain
the fact.
Use of the plaintiff’s conduct and statements
(3) In determining what the plaintiff knows or ought to have known, the
court may have regard to the plaintiff’s conduct, and to the
plaintiff’s oral or written statements.
Minors
(4) If the plaintiff is a minor, facts that a capable parent or guardian
of the plaintiff knows or ought to know are taken for the purposes of
subsection (1) to be facts that the plaintiff knows or ought to
know.
Incapacitated persons
(5) If:
(a) the plaintiff is an incapacitated person; and
(b) there is a guardian of the plaintiff, or other person to manage all or
part of the plaintiff’s estate, under a law of a State or Territory
relating to the protection of incapacitated persons;
facts that the guardian or other person knows or ought to know are taken
for the purposes of subsection (1) to be facts that the plaintiff knows or
ought to know.
Proceedings by personal representatives
(6) Despite subsection (1), if the plaintiff brings the proceeding in
the capacity of the personal representative of a deceased person, the date
of discoverability for the death or injury is the earliest of:
(a) if, had the deceased person commenced a proceeding, in relation to the
contravention to which the death or injury relates, before his or her death, the
date of discoverability under subsection (1) would have occurred more than
3 years before the death—that date; or
(b) if, at the time of the plaintiff’s appointment as personal
representative, the plaintiff knew, or ought to have known, all of the matters
referred to in paragraphs (1)(a), (b) and (c)—the date of the
appointment; or
(c) if the first time at which the plaintiff knew, or ought to have known,
all of the matters referred to in paragraphs (1)(a), (b) and (c) was after
the date of appointment—the date of that first time.
(1) The long-stop period for the death or injury of a person
is:
(a) the period of 12 years following the act or omission alleged to have
caused the death or injury; or
(b) that period as extended by the court.
(2) The court must not extend the period by more than 3 years beyond the
date of discoverability for the death or injury.
(3) In considering whether to extend the period, the court must have
regard to the justice of the case, and, in particular, must have regard
to:
(a) whether the passage of time has prejudiced a fair trial; and
(b) the nature and extent of the person’s loss or damage;
and
(c) the nature of the defendant’s conduct alleged to have caused the
death or injury; and
(d) the nature of the defendant’s conduct since the alleged act or
omission.
In working out whether the period of 3 years after the date of
discoverability, or the long-stop period, has expired, disregard any period
during which the plaintiff has been:
(a) a minor who is not in the custody of a capable parent or guardian;
or
(b) an incapacitated person in respect of whom there is no guardian, and
no other person to manage all or part of the person’s estate, under a law
of a State or Territory relating to the protection of incapacitated
persons.
(1) If:
(a) a cause of action to which the proceeding relates is founded on the
death or injury to a person (the victim) who was a minor at the
time of the act or omission alleged to have caused the death or injury;
and
(b) the proceeding is taken against a person who was at that
time:
(i) a parent or guardian of the victim; or
(ii) a person in a close relationship with a parent or guardian of the
victim;
in working out whether the period of 3 years after the date of
discoverability, or the long-stop period, has expired, disregard any
period:
(c) before the victim turns 25; or
(d) if the victim dies before turning 25—before the victim’s
death.
(2) For the purposes of subparagraph (1)(b)(ii), a person is taken to
be in a close relationship with a parent or guardian of the victim
if the person’s relationship with the parent or guardian is such
that:
(a) the person might influence the parent or guardian not to bring a claim
on behalf of the victim against the person; or
(b) the victim might be unwilling to disclose to the parent or guardian
the acts, omissions or events in respect of which the cause of action is
founded.
A court must not, in a proceeding to which this Part applies, award as
personal injury damages for non-economic loss an amount that exceeds the amount
(if any) permitted under this Division.
(1) The maximum amount of damages for non-economic loss
is:
(a) during the year in which this Part commences—$250,000;
or
(b) during a later year—the amount worked out (to the nearest
multiple of $10) as follows:
where:
current September CPI number is the index number for the
quarter ending on 30 September in the year immediately preceding that later
year.
previous maximum amount is the maximum amount of damages
for non-economic loss during the year immediately preceding that later
year.
previous September CPI number is the index number for the
quarter ending on the 30 September immediately preceding the
30 September referred to in the definition of current September CPI
number.
(2) If an amount worked out under paragraph (1)(b) is a multiple of
$5 (but not a multiple of $10), round the amount up to the nearest multiple of
$10.
(3) This section does not affect the operation of
section 86AA.
(1) The index number for a quarter is the All Groups
Consumer Price Index number, being the weighted average of the 8 capital cities,
published by the Australian Statistician in respect of that quarter.
(2) Subject to subsection (3), if, at any time before or after the
commencement of this Act:
(a) the Australian Statistician has published or publishes an index number
in respect of a quarter; and
(b) that index number is in substitution for an index number previously
published by the Australian Statistician in respect of that quarter;
disregard the publication of the later index number for the purposes of
this section.
(3) If, at any time, the Australian Statistician has changed or changes
the reference base for the Consumer Price Index, then, in applying this section
after the change took place or takes place, have regard only to index numbers
published in terms of the new reference base.
(4) In this section:
Australian Statistician means the Australian Statistician
referred to in subsection 5(2) of the Australian Bureau of Statistics Act
1975.
(1) The court must not award as personal injury damages for non-economic
loss the maximum amount of damages for non-economic loss except in a most
extreme case.
(2) A most extreme case is a case in which the plaintiff
suffers non-economic loss of the gravest conceivable kind.
(1) If the non-economic loss the plaintiff suffers is at least 33%, but
less than 100%, of a most extreme case, the court must not award as personal
injury damages for non-economic loss an amount that exceeds the applicable
percentage of the maximum amount of damages for non-economic loss.
(2) The applicable percentage is the extent of the
non-economic loss the plaintiff suffers, expressed as a percentage of a most
extreme case.
If the non-economic loss the plaintiff suffers is at least 15%, but less
than 33%, of a most extreme case, the court must not award as personal injury
damages for non-economic loss an amount that exceeds the amount set out in the
following table:
|
Cases of 15% or more (but less than 33%) of a most extreme
case |
||
|---|---|---|
|
Item |
Severity of the non-economic loss (as a proportion of a most extreme
case) |
Damages for non-economic loss (as a proportion of the maximum amount of
damages for non-economic loss) |
|
1 |
15% |
1% |
|
2 |
16% |
1.5% |
|
3 |
17% |
2% |
|
4 |
18% |
2.5% |
|
5 |
19% |
3% |
|
6 |
20% |
3.5% |
|
7 |
21% |
4% |
|
8 |
22% |
4.5% |
|
9 |
23% |
5% |
|
10 |
24% |
5.5% |
|
11 |
25% |
6.5% |
|
12 |
26% |
8% |
|
13 |
27% |
10% |
|
14 |
28% |
14% |
|
15 |
29% |
18% |
|
16 |
30% |
23% |
|
17 |
31% |
26% |
|
18 |
32% |
30% |
If the non-economic loss the plaintiff suffers is less than 15% of a most
extreme case, the court must not award personal injury damages for non-economic
loss.
(1) In determining personal injury damages for non-economic loss, the
court may refer to earlier decisions of the court or of other courts for the
purpose of establishing the appropriate award in the proceeding.
(2) For that purpose, the parties to the proceeding or their counsel may
bring the court’s attention to awards of personal injury damages for
non-economic loss in those earlier decisions.
(3) This section does not affect the rules for determination of other
damages or compensation.
In determining, in a proceeding to which this Part applies, personal
injury damages for:
(a) past economic loss due to loss of earnings or the deprivation or
impairment of earning capacity; or
(b) future economic loss due to the deprivation or impairment of earning
capacity; or
(c) the loss of expectation of financial support;
a court must disregard the amount by which the plaintiff’s gross
weekly earnings during any quarter would (but for the personal injury or death
in question) have exceeded:
(d) if, at the time the award was made, the amount of average weekly
earnings for the quarter was ascertainable—an amount that is twice the
amount of average weekly earnings for the quarter; or
(e) if:
(i) at the time the award was made, the amount of average weekly earnings
for the quarter was not ascertainable; or
(ii) the award was made during, or before the start of, the
quarter;
an amount that is twice the amount of average weekly earnings for the
quarter that, at the time the award was made, was the most recent quarter for
which the amount of average weekly earnings was ascertainable.
(1) Average weekly earnings, for a quarter, means the
amount:
(a) published by the Australian Statistician as the average weekly
earnings for all employees (total earnings, seasonally adjusted) for the
reference period in that quarter; or
(b) if the Australian Statistician fails or ceases to publish the amount
referred to in paragraph (a)—the amount determined in the manner
specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(b) may specify
matters by reference to which an amount is to be determined.
(3) In this section:
reference period, in a quarter, is the period described by
the Australian Statistician as the pay period ending on or before a specified
day that is the third Friday of the middle month of that quarter.
(1) A court must not, in a proceeding to which this Part applies, award
personal injury damages for gratuitous attendant care services for the
plaintiff, except in accordance with this section.
(2) The court must be satisfied that:
(a) there is (or was) a reasonable need for the services to be provided;
and
(b) the need has arisen (or arose) solely because of personal injury to
which the personal injury damages relate; and
(c) the services would not be (or would not have been) provided to the
plaintiff but for the injury; and
(d) the services are provided (or are to be provided) for at least 6 hours
per week; and
(e) the services are provided (or are to be provided) over a period of at
least 6 months.
(3) If the services were provided during a quarter for which, at the time
the award was made, the amount of average weekly earnings was ascertainable, the
court must not award as personal injury damages for the services:
(a) if the services were provided for at least 40 hours per week—an
amount per week that exceeds average weekly earnings for that quarter;
or
(b) if the services were provided for less than 40 hours per week—an
amount per hour that exceeds
1/40 of average weekly
earnings for that quarter.
(4) If the services:
(a) were provided during a quarter for which, at the time the award was
made, the amount of average weekly earnings was not ascertainable; or
(b) are to be provided after the time the award was made;
the court must not award as personal injury damages for the
services:
(c) if the services were provided for at least 40 hours per week—an
amount per week that exceeds average weekly earnings for the quarter that, at
the time the award was made, was the most recent quarter for which the amount of
average weekly earnings was ascertainable; or
(d) if the services were provided for less than 40 hours per week—an
amount per hour that exceeds
1/40 of average weekly
earnings for that quarter.
(5) Gratuitous attendant care services are services that one
person provides to another person:
(a) that:
(i) are of a domestic nature; or
(ii) relate to nursing; or
(iii) aim to alleviate the consequences of a personal injury;
and
(b) for which the other person has not paid or is not liable to
pay.
(1) A court must not, in a proceeding to which this Part applies, award
personal injury damages for loss of the plaintiff’s capacity to provide
gratuitous attendant care services to other persons, except in accordance with
this section.
(2) The court must be satisfied that:
(a) prior to his or her loss of capacity to provide the services, the
plaintiff had provided the services:
(i) for at least 6 hours per week; and
(ii) over a period of at least 6 months; and
(b) the other person would have been entitled, if the plaintiff had died
as a result of the contravention of this Act to which the award relates, to
recover damages under a law of a State or Territory for loss of the
plaintiff’s services.
(3) If the plaintiff would have provided the services during a quarter for
which, at the time the award was made, the amount of average weekly earnings was
ascertainable, the court must not award as personal injury damages for the
services:
(a) if the services would have been provided for at least 40 hours per
week—an amount per week that exceeds average weekly earnings for that
quarter; and
(b) if the services would have been provided for less than 40 hours per
week—an amount per hour that exceeds
1/40 of average weekly
earnings for that quarter.
(4) If the plaintiff:
(a) would have provided the services during a quarter for which, at the
time the award was made, the amount of average weekly earnings was not
ascertainable; or
(b) would have provided the services after the time the award was
made;
the court must not award as personal injury damages for the
services:
(c) if the services were provided for at least 40 hours per week—an
amount per week that exceeds average weekly earnings for the quarter that, at
the time the award was made, was the most recent quarter for which the amount of
average weekly earnings was ascertainable; or
(d) if the services were provided for less than 40 hours per week—an
amount per hour that exceeds
1/40 of average weekly
earnings for that quarter.
(1) If an award of personal injury damages in a proceeding to which this
Part applies is to include any component, assessed as a lump sum, for future
economic loss of any kind, the present value of that future economic loss is to
be determined by applying:
(a) a discount rate of the percentage prescribed by the regulations;
or
(b) if no percentage is prescribed—a discount rate of 5%.
(2) A regulation made for the purposes of paragraph (1)(a) does not
take effect before the end of the period of 6 months starting:
(a) if the regulation is laid before each House of the Parliament under
paragraph 48(1)(c) of the Acts Interpretation Act 1901 on the same
day—starting on that day; or
(b) if it is laid before each House of the Parliament under that paragraph
on different days—starting on the later of those days.
(3) Except as provided by this section, this section does not affect any
other law relating to the discounting of sums awarded as damages or
compensation.
A court must not, in a proceeding to which this Part applies, award
personal injury damages for economic loss due to the loss of employer
superannuation contributions an amount that exceeds the following
amount:
where:
damages for earnings loss are the personal injury damages
payable (in accordance with this Part) for:
(a) any past economic loss due to loss of earnings, or the deprivation or
impairment of earning capacity, on which the entitlement to those contributions
is based; and
(b) any future economic loss due to the deprivation or impairment of
earning capacity on which the entitlement to those contributions would be
based.
superannuation percentage is the highest employer’s
charge percentage for a quarter under section 19 of the Superannuation
Guarantee (Administration) Act 1992.
(1) A court must not, in a proceeding to which this Part applies, order
the payment of interest on personal injury damages for:
(a) non-economic loss; or
(b) gratuitous attendant care services for the plaintiff; or
(c) loss of the plaintiff’s capacity to provide gratuitous attendant
care services to other persons.
(2) If, in a proceeding to which this Part applies, a court is satisfied
that interest is payable on personal injury damages of another kind, the rate of
interest to be used in working out the interest is:
(a) the rate of interest prescribed by the regulations; or
(b) if no rate is prescribed—the 10-year benchmark bond rate on the
day on which the court determines the personal injury damages.
(3) This section does not affect the payment of interest on a debt under a
judgment or order of a court.
(4) In this section:
10-year benchmark bond rate, on a day, means:
(a) if the day occurs on or after 1 March in a particular year and
before 1 September in that year—the Commonwealth Government 10-year
benchmark bond rate:
(i) as published by the Reserve Bank of Australia in the Reserve Bank of
Australia Bulletin (however described); and
(ii) applying on the first business day of January in that year;
or
(b) otherwise—the Commonwealth Government 10-year benchmark bond
rate, as so published, applying on the first business day of July in the
preceding year.
business day means a day other than a Saturday, a Sunday or a
public or bank holiday in any State, the Australian Capital Territory or the
Northern Territory.
(1) A court must not, in a proceeding to which this Part applies, award
exemplary damages or aggravated damages in respect of death or personal
injury.
(2) This section does not affect whether a court has power to award
exemplary damages or aggravated damages:
(a) otherwise than in respect of death or personal injury; or
(b) in a proceeding other than a proceeding to which this Part
applies.
(1) In a proceeding to which this Part applies, a court may, on the
application of the parties, make an order under section 87 approving a
structured settlement, or the terms of a structured settlement, even though the
payment of damages is not in the form of a lump sum award of damages.
(2) This section does not limit the powers of a court to make an order
under section 87 in a proceeding that is not a proceeding to which this
Part applies.
(3) In this section:
structured settlement means an agreement that provides for
the payment of all or part of an award of damages in the form of periodic
payments funded by an annuity or other agreed means.
10 Section 87D
Renumber as section 87ZD.
11 Application
The amendments made by this Schedule (other than item 10) apply to
contraventions of Part IVA, of Division 1A or 2A of Part V or of
Part VA of the Trade Practices Act 1974 that occur after this
Schedule commences.