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House of Assembly—No 66
As received from the Legislative Council and read a first
time, 16 February 2004
South Australia
Law
Reform (Ipp Recommendations) Bill 2003
A Bill For
An
Act to reform the law as it relates to torts; to amend the Wrongs
Act 1936, the Limitation of Actions Act 1936 and the Motor
Vehicles Act 1959.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Wrongs
Act 1936
4 Insertion of heading
5 Substitution of section 1
1 Short title
6 Substitution of section 2
2 Act to bind the Crown
7 Repeal of section 3
8 Amendment and redesignation of
section 3A—Interpretation
9 Insertion of section 4
4 Application of this Act
10 Substitution of heading to Part 1
11 Substitution of heading to Part 1A
12 Redesignation of section 17A—Liability
for animals
13 Substitution of heading to Part 1B
14 Redesignation of section 17B—Interpretation
15 Redesignation of section 17C—Occupier's
duty of care
16 Redesignation of section 17D—Landlord's
liability limited to breach of duty to repair
17 Redesignation of section 17E—Exclusion
of conflicting common law principles
18 Substitution of heading to Part 2
19 Redesignation of section 19—Liability
for death caused wrongfully
20 Amendment and redesignation of section
20—Effect and mode of bringing action, awarding of damages for funeral expenses
etc
21 Redesignation of section 21—Restriction
of actions and time of commencement
22 Redesignation of section 22—Particulars
of person for whom damages claimed
23 Amendment and redesignation of section
23—Provision where no executor or administrator or action not commenced within
6 months
24 Redesignation of section 23A—Liability
to parents of person wrongfully killed
25 Redesignation of section 23B—Liability
to surviving spouse of person wrongfully killed
26 Amendment and redesignation of section
23C—Further provision as to solatium etc
27 Insertion of Part 6
Part 6—Negligence
Division 1—Duty of care
31 Standard of care
32 Precautions against risk
33 Mental harm—duty of care
Division 2—Causation
34 General principles
35 Burden of proof
Division 3—Assumption of risk
36 Meaning of obvious risk
37 Injured persons presumed to be
aware of obvious risks
38 No duty to warn of obvious risk
39 No liability for materialisation
of inherent risk
Division 4—Negligence on the
part of persons professing to have a particular skill
40 Standard of care to be expected of
persons professing to have a particular skill
41 Standard of care for professionals
Division 5—Liability of road
authorities
42 Liability of road authorities
Division 6—Exclusion of
liability for criminal conduct
43 Exclusion of liability for
criminal conduct
Part 7—Contributory negligence
44 Standard of contributory
negligence
45 Contributory negligence in cases
brought on behalf of dependants of deceased person
28 Substitution of heading to Part 2A
29 Repeal of Part 2A Division 1
51 Application of this Part
30 Repeal of heading to Part 2A Division
2
31 Redesignation of section 24B—Damages
for non-economic loss
32 Substitution of section 24C
53 Damages for mental harm
33 Amendment and redesignation of section
24D—Damages for loss of earning capacity
34 Redesignation of section 24E—Lump sum
compensation for future losses
35 Redesignation of section 24F—Exclusion
of interest on damages compensating non-economic loss or future loss
36 Redesignation of section 24G—Exclusion
of damages for cost of management or investment
37 Redesignation of section 24H—Damages
in respect of gratuitous services
38 Repeal of heading to Part 2A Division
3
39 Repeal of section 24I
40 Amendment and redesignation of section
24J—Presumption of contributory negligence where injured person intoxicated
41 Relocation of sections 24K to 24N
42 Repeal of Part 2A Division 4
43 Substitution of heading to Part 3
44 Substitution of heading to Part 3
Division 3
45 Redesignation of section 27C—Rights as
between employer and employee
46 Repeal of Part 3 Division 4
47 Redesignation of heading to Part 3
Division 5—Remedies against certain shipowners
48 Redesignation of section 29—Remedy
against shipowners and others for injuries
49 Redesignation of heading to Part 3
Division 6—Damage by aircraft
50 Redesignation of section 29A—Damage by
aircraft
51 Redesignation of section 29B—Exclusion
of liability for trespass or nuisance
52 Redesignation of heading to Part 3
Division 7—Abolition of rule of common employment
53 Redesignation of section 30—Abolition
of rule of common employment
54 Redesignation of heading to Part 3
Division 8—Actions in tort relating to husband and wife
55 Redesignation of section 32—Abolition
of rule as to unity of spouses
56 Redesignation of section 33—Wife may
claim for loss or impairment of consortium
57 Redesignation of section 34—Damages
where injured spouse participated in a business
58 Insertion of new Division
Division 6—Limitation on the
award of damages for the costs of raising a child
67 Limitation on the award of damages
for the costs of raising a child
59 Redesignation of heading to Part 3
Division 9—Abolition of actions of seduction, enticement and harbouring
60 Redesignation of section 35—Abolition
of actions for enticement, seduction and harbouring
61 Redesignation of heading to Part 3
Division 10A—Unreasonable delay in resolution of claim
62 Redesignation of section 35B—Definitions
63 Redesignation of section 35C—Damages
for unreasonable delay in resolution of a claim
64 Redesignation of section 35D—Regulations
65 Redesignation of heading to Part 3
Division 11—Liability for perjury in civil actions
66 Redesignation of section 36—Liability
for perjury in civil actions
67 Redesignation of heading to Part 3
Division 12—Racial victimisation
68 Redesignation of section 37—Racial
victimisation
69 Redesignation of heading to Part 3
Division 13—Good samaritans
70 Redesignation of section 38—Good
samaritans
71 Redesignation of heading to Part 3
Division 14—Expressions of regret
72 Redesignation of section 39—Expressions
of regret
Part 3—Amendment of Limitation
of Actions Act 1936
73 Amendment of section 3—Interpretation
74 Amendment of section 45—Persons under
legal disability
75 Insertion of section 45A
45A Special provision regarding children
76 Amendment of section 48—General power
to extend periods of limitation
Part 4—Amendment of Motor
Vehicles Act 1959
77 Amendment of section 99—Interpretation
78 Amendment of section 104—Requirements
if policy is to comply with this Part
79 Amendment of section 124A—Recovery by
insurer
80 Amendment of Schedule 4—Policy of
insurance
Schedule 1—Transitional
provision
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Law Reform (Ipp Recommendations)
Act 2003.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Wrongs Act 1936
Before section 1 insert:
Part 1—Preliminary
Section 1—delete the section and
substitute:
1—Short
title
This Act may be cited as the Civil Liability Act 1936.
Section 2—delete the section and
substitute:
2—Act to
bind the Crown
This Act binds the Crown in right of South Australia and, so far
as the legislative power of the Parliament of South Australia permits, the
Crown in all its other capacities.
Section 3—delete the section
8—Amendment and redesignation of section 3A—Interpretation
(1) Section 3A—before the definition of brother
insert:
accident means an incident out of which personal injury arises and
includes a motor accident;
(2) Section 3A, definition of the
judgment first given—delete the definition and substitute:
consequential mental harm means mental harm that is a consequence
of bodily injury to the person suffering the mental harm;
Consumer Price Index means the Consumer Price Index (all groups index for
Adelaide) published by the Australian Statistician under the Census and
Statistics Act 1905 (Cwth);
contributory negligence means a failure by a person who suffers
harm to exercise reasonable care and skill for his or her own protection or for
the protection of his or her own interests;
damages means compensation or damages for harm
and includes solatium but does not include—
(a) workers
compensation; or
(b) compensation
under a statutory scheme for compensating victims of crime;
drive includes ride, and driver and rider
have corresponding meanings;
duty of care means a duty to take reasonable care or to exercise reasonable
skill (or both);
harm includes loss of life, personal injury, damage to property,
economic loss and loss of any other kind;
health care service includes—
(a) a
diagnostic service
(b) a
therapeutic service
(c) any
other service directed at maintaining or restoring health;
intoxicated—a person is intoxicated if under the influence of alcohol or a
drug to the extent that the person's capacity to exercise due care and skill is
impaired;
medical expenses includes—
(a) the
fees of medical practitioners and other professional medical advisers and
therapists; and
(b) the
cost of hospitalisation; and
(c) the
cost of medicines and therapeutic appliances;
mental harm means impairment of a person's mental condition;
motor accident means an incident in which personal injury arises out of the use
of a motor vehicle;
motor vehicle means—
(a) a
motor vehicle as defined in the Motor Vehicles Act 1959; or
(b) a
vehicle operated on a railway, tramway or other fixed track or path by—
(i) a
person who holds a contract, licence or authority under the Passenger
Transport Act 1994; or
(ii) a
person who holds an accreditation under the Rail Safety Act 1996;
negligence means failure to exercise reasonable care and skill, and includes
a breach of a tortious, contractual or statutory duty of care;
(3) Section 3A—after the definition of newspaper
insert:
non-economic loss means—
(a) pain
and suffering; or
(b) loss
of amenities of life; or
(c) loss
of expectation of life; or
(d) disfigurement;
obvious risk—see section 36;
(4) Section 3A—after the definition of parent
insert:
passenger compartment of a motor vehicle means a part of the vehicle designed
for the carriage of passengers;
personal injury or injury means bodily
injury and includes—
(a) mental
harm;
(b) death;
precaution includes any action to avoid or reduce the risk of harm;
prescribed discount rate means—
(a) if
no percentage is fixed by regulation for the purposes of this definition—5 per
cent; or
(b) if
such a percentage is fixed by regulation—the percentage so fixed;
prescribed maximum means—
(a) in
relation to an injury arising from an accident that occurred during 2002—$2.2
million; or
(b) in
relation to an injury arising from an accident that occurred in a subsequent
calendar year—a sum (calculated to the nearest multiple of $10) that bears to
$2.2 million the same proportion as the Consumer Price Index for the September
quarter of the preceding year bears to the Consumer Price Index for the
September quarter 2001;
prescribed minimum means—
(a) in
relation to an injury arising from an accident that occurred during 2002—$2 750;
or
(b) in
relation to an injury arising from an accident that occurred in a subsequent
calendar year—a sum (calculated to the nearest multiple of $10) that bears to
$2 750 the same proportion as the Consumer Price Index for the September
quarter of the preceding year bears to the Consumer Price Index for the
September quarter 2001;
pure mental harm means mental harm other than consequential mental harm;
(5) Section 3A—after the definition of spouse
insert:
State average weekly earnings means the amount determined in accordance
with the regulations by reference to publications of the Australian
Statistician.
(6) Redesignate
the section as amended by this section as section 3
After section 3A (now designated as
section 3—see section 8 of this Act) insert:
4—Application
of this Act
(1) This
Act is intended to apply to the exclusion of inconsistent laws of any other
place to the determination of liability and the assessment of damages for harm
arising from an accident occurring in this State.
(2) Subsection
(1) is intended to extend, and not to limit in any way, the application of this
Act in accordance with its terms.
(3) This
Act does not derogate from the Recreational Services (Limitation of
Liability) Act 2002.
(4) This
Act does not affect a right to compensation under the Workers Rehabilitation
and Compensation Act 1986.
10—Substitution of heading to Part 1
Heading to Part 1—delete the heading to
Part 1 and substitute:
Part 2—Defamation
11—Substitution of heading to Part 1A
Heading to Part 1A—delete the heading to
Part 1A and substitute:
Part 3—Liability for animals
12—Redesignation of section 17A—Liability for animals
Section 17A—redesignate the section as section 18
13—Substitution of heading to Part 1B
Heading to Part 1B—delete the heading to
Part 1B and substitute:
Part 4—Occupiers liability
14—Redesignation of section 17B—Interpretation
Section 17B—redesignate the section as section 19
15—Redesignation of section 17C—Occupier's duty of care
Section 17C—redesignate the section as section 20
16—Redesignation of section 17D—Landlord's liability limited to breach of duty to repair
Section 17D—redesignate the section as section 21
17—Redesignation of section 17E—Exclusion of conflicting common law principles
Section 17E—redesignate the section as section 22
18—Substitution of heading to Part 2
Heading to Part 2—delete the heading and
substitute:
Part 5—Wrongful acts or neglect causing
death
19—Redesignation of section 19—Liability for death caused wrongfully
Section 19—redesignate the section as section 23
(1) Section 20(2)—delete subsection (2) and
substitute:
(2) In
every such action, the court may, subject to this Act, give such damages as it
thinks proportioned to the harm resulting from the death to the parties
respectively for whom and for whose benefit the action is brought.
(2) Section
20—redesignate the section as amended by this section as section 24
21—Redesignation of section 21—Restriction of actions and time of commencement
Section 21—redesignate the section as section 25
22—Redesignation of section 22—Particulars of person for whom damages claimed
Section 22—redesignate the section as section 26
(1) Section 23(1)—delete "section 19 of
this Act" and substitute:
section 23
(2) Section
23—redesignate the section as amended by this section as section 27
24—Redesignation of section 23A—Liability to parents of person wrongfully killed
Section 23A—redesignate the section as section 28
25—Redesignation of section 23B—Liability to surviving spouse of person wrongfully killed
Section 23B—redesignate the section as section 29
26—Amendment and redesignation of section 23C—Further provision as to solatium etc
(1) Section 23C(1)—delete "sections 23A
and 23B" and substitute:
sections 28 and 29
(2) Section 23C(2)—delete section 23A or 23B of
this Act" and substitute:
section 28 or 29
(3) Section 23C(3)—delete "section 23A or
23B of this Act" and substitute:
section 28 or 29
(4) Section 23C(4)—delete "section 23A or
section 23B of this Act" and substitute:
section 28 or 29
(5) Section
23C—redesignate the section as amended by this section as section 30
After section 23C (now designated as
section 30—see section 26 of this Act) insert:
Part 6—Negligence
Division 1—Duty
of care
31—Standard
of care
(1) For
determining whether a person (the defendant) was negligent, the
standard of care required of the defendant is that of a reasonable person in
the defendant's position who was in possession of all information that the
defendant either had, or ought reasonably to have had, at the time of the
incident out of which the harm arose.
(2) The reasonable person in the defendant's
position will be taken to be sober unless—
(a) the
defendant was intoxicated; and
(b) the
intoxication was wholly attributable to the use of drugs in accordance with the
prescription or instructions of a medical practitioner; and
(c) the
defendant was complying with the instructions and recommendations of the
medical practitioner and the manufacturer of the drugs as to what he or she
should do, or avoid doing, while under the influence of the drugs,
and, in that event, the reasonable person will be taken to be
intoxicated to the same extent as the defendant.
32—Precautions
against risk
(1) A person is not negligent in failing to
take precautions against a risk of harm unless—
(a) the
risk was foreseeable (that is, it is a risk of which the person knew or ought
to have known); and
(b) the
risk was not insignificant; and
(c) in
the circumstances, a reasonable person in the person's position would have
taken those precautions.
(2) In determining whether a reasonable person
would have taken precautions against a risk of harm, the court is to consider
the following (amongst other relevant things):
(a) the
probability that the harm would occur if precautions were not taken;
(b) the
likely seriousness of the harm;
(c) the
burden of taking precautions to avoid the risk of harm;
(d) the
social utility of the activity that creates the risk of harm.
33—Mental harm—duty
of care
(1) A
person (the defendant) does not owe a duty to another person (the
plaintiff ) to take care not to cause the plaintiff mental harm
unless a reasonable person in the defendant's position would have foreseen that
a person of normal fortitude in the plaintiff's position might, in the
circumstances of the case, suffer a psychiatric illness.
(2) For the purposes of this section—
(a) in
a case of pure mental harm, the circumstances of the case to which the court is
to have regard include the following:
(i) whether
or not the mental harm was suffered as the result of a sudden shock;
(ii) whether
the plaintiff witnessed, at the scene, a person being killed, injured or put in
peril;
(iii) the
nature of the relationship between the plaintiff and any person killed, injured
or put in peril;
(iv) whether
or not there was a pre-existing relationship between the plaintiff and the
defendant;
(b) in
a case of consequential mental harm, the circumstances of the case include the
nature of the bodily injury out of which the mental harm arose.
(3) This
section does not affect the duty of care of a person (the defendant)
to another (the plaintiff) if the defendant knows, or ought
reasonably to know, that the plaintiff is a person of less than normal
fortitude.
Division 2—Causation
34—General
principles
(1) A determination that negligence caused
particular harm comprises the following elements:
(a) that
the negligence was a necessary condition of the occurrence of the harm (factual
causation); and
(b) that
it is appropriate for the scope of the negligent person's liability to extend
to the harm so caused (scope of liability).
(2) Where, however, a person (the plaintiff)
has been negligently exposed to a similar risk of harm by a number of different
persons (the defendants) and it is not possible to assign responsibility for
causing the harm to any one or more of them—
(a) the
court may continue to apply the principle under which responsibility may be
assigned to the defendants for causing the harm1; but
(b) the
court should consider the position of each defendant individually and state the
reasons for bringing the defendant within the scope of liability.
Note—
1 See
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89.
(3) For
the purpose of determining the scope of liability, the court is to consider
(amongst other relevant things) whether or not and why responsibility for the
harm should be imposed on the negligent party.
35—Burden of
proof
In determining liability for negligence, the plaintiff always
bears the burden of proving, on the balance of probabilities, any fact relevant
to the issue of causation.
Division 3—Assumption
of risk
36—Meaning
of obvious risk
(1) For
the purposes of this Division, an obvious risk to a person who
suffers harm is a risk that, in the circumstances, would have been obvious to a
reasonable person in the position of that person.
(2) Obvious
risks include risks that are patent or matters of common knowledge.
(3) A
risk may be obvious even though it is of low probability.
37—Injured
persons presumed to be aware of obvious risks
(1) If,
in an action for damages for negligence, a defence of voluntary assumption of
risk (volenti non fit injuria) is raised by the defendant and the risk
is an obvious risk, the plaintiff is taken to have been aware of the risk
unless the plaintiff proves, on the balance of probabilities, that he or she
was not actually aware of the risk.
(2) For
the purposes of this section, a person is aware of a risk if the person is
aware of the type or kind of risk, even if the person is not aware of the
precise nature, extent or manner of occurrence of the risk.
(3) However,
in order to establish a defence of voluntary assumption of risk, it is
necessary to establish that the risk was such that a reasonable person in the
plaintiff's position would have taken steps (which the plaintiff did not in
fact take) to avoid it.
38—No duty
to warn of obvious risk
(1) A
person (the defendant) does not owe a duty of care to another
person (the plaintiff) to warn of an obvious risk to the
plaintiff.
(2) Subsection (1) does not apply if—
(a) the
plaintiff has requested advice or information about the risk from the
defendant; or
(b) the
defendant is required to warn the plaintiff of the risk—
(i) by
a written law; or
(ii) by
an applicable code of practice in force under the Recreational Services
(Limitation of Liability) Act 2002; or
(c) the
risk is a risk of death or of personal injury to the plaintiff from the
provision of a health care service by the defendant.
(3) Subsection
(2) does not give rise to a presumption of a duty to warn of a risk in the
circumstances referred to in that subsection.
39—No
liability for materialisation of inherent risk
(1) A
person is not liable in negligence for harm suffered by another person as a
result of the materialisation of an inherent risk.
(2) An
inherent risk is a risk of something occurring that cannot be
avoided by the exercise of reasonable care and skill.
(3) This
section does not operate to exclude liability in connection with a duty to warn
of a risk.
Division 4—Negligence
on the part of persons professing to have a particular skill
40—Standard
of care to be expected of persons professing to have a particular skill
In a case involving an allegation of
negligence against a person (the defendant) who holds himself or herself out as
possessing a particular skill, the standard to be applied by a court in
determining whether the defendant acted with due care and skill is, subject to
this Division, to be determined by reference to—
(a) what
could reasonably be expected of a person professing that skill; and
(b) the
relevant circumstances as at the date of the alleged negligence and not a later
date.
41—Standard
of care for professionals
(1) A
person who provides a professional service incurs no liability in negligence
arising from the service if it is established that the provider acted in a
manner that (at the time the service was provided) was widely accepted in
Australia by members of the same profession as competent professional practice.
(2) However,
professional opinion cannot be relied on for the purposes of this section if
the court considers that the opinion is irrational.
(3) The
fact that there are differing professional opinions widely accepted in
Australia by members of the same profession does not prevent any one or more
(or all) of those opinions being relied on for the purposes of this section.
(4) Professional
opinion does not have to be universally accepted to be considered widely
accepted.
(5) This
section does not apply to liability arising in connection with the giving of
(or the failure to give) a warning, advice or other information in respect of a
risk of death of or injury associated with the provision of a health care
service.
Division 5—Liability
of road authorities
42—Liability
of road authorities
(1) A road authority is not liable in tort for
a failure—
(a) to
maintain, repair or renew a road; or
(b) to
take other action to avoid or reduce the risk of harm that results from a
failure to maintain, repair or renew a road.
(2) In this section—
road means a street, road or thoroughfare to which public
access is available to vehicles or pedestrians (or both), and includes—
(a) a
bridge, viaduct, busway (including the O-bahn) or subway;
(b) an
alley, laneway or walkway;
(c) a
carpark;
(d) a
footpath;
(e) a
structure associated with a road;
road authority means—
(a) a
body or person in which the ownership of a road is vested by statute, or to
which the care, control and management of a road is assigned by statute; or
(b) if
the road is on land of the Crown—Crown or the Minister responsible for the
care, control and management of the land; or
(c) any
other public authority or public body that is in fact responsible for the care,
control and management of a road;
vehicle includes—
(a) a
motor vehicle;
(b) a
bicycle;
(c) an
animal that is being ridden;
(d) an animal that is being used to draw a
vehicle,
but does not include a tram or other
vehicle (except an O-Bahn bus) that is driven on a fixed track.
(3) This
section will expire on the second anniversary of its commencement.
Division 6—Exclusion
of liability for criminal conduct
43—Exclusion
of liability for criminal conduct
(1) Liability for damages is excluded if the
court—
(a) is
satisfied beyond reasonable doubt that the accident occurred while the injured
person was engaged in conduct constituting an indictable offence; and
(b) is
satisfied on the balance of probabilities that the injured person's conduct
contributed materially to the risk of injury.
(2) However, the court may award damages
despite this exclusionary principle if satisfied that—
(a) the
circumstances of the particular case are exceptional; and
(b) the
principle would, in the circumstances of the particular case, operate harshly
and unjustly.
(3) For
the purposes of subsection (1)(a), a relevant conviction or acquittal is to be
accepted as conclusive evidence of guilt or innocence of the offence to which
it relates.
(4) This section—
(a) applies
where damages are claimed for personal injury—
(i) arising
from a motor accident (whether caused intentionally or unintentionally); or
(ii) arising
from an accident caused wholly or in part—
(A) by
negligence; or
(B) by
some other unintentional tort on the part of a person other than the injured
person; or
(C) by
breach of a contractual duty of care; and
(b) if
an injured person dies as a result of injury arising in the manner described in
paragraph (a)—applies where damages for harm resulting from the death are
claimed under Part 5; and
(c) does
not affect the operation of a rule of law relating to joint illegal
enterprises.
Part 7—Contributory
negligence
44—Standard
of contributory negligence
(1) The
principles that are applicable in determining whether a person has been
negligent also apply in determining whether a person who suffered harm (the
plaintiff) has been contributorily negligent.
(2) This
section is not to derogate from any provision of this Act for reduction of damages
on account of contributory negligence.
45—Contributory
negligence in cases brought on behalf of dependants of deceased person
In a claim for damages brought on behalf of the dependants of a
deceased person, the court is to have regard to any contributory negligence on
the part of the deceased person.
28—Substitution of heading to Part 2A
Heading to Part 2A—delete the heading and
substitute:
Part 8—Damages for personal injury
29—Repeal of Part 2A Division 1
Part 2A Division 1—repeal Division 1 and
substitute:
51—Application
of this Part
This Part applies—
(a) where
damages are claimed for personal injury arising from—
(i) a
motor accident (whether caused intentionally or unintentionally); or
(ii) an
accident caused wholly or in part by—
(A) negligence;
or
(B) some
other unintentional tort on the part of a person other than the injured person;
or
(C) a
breach of a contractual duty of care; or
(b) where
personal injury arising in the manner described in paragraph (a) results in
death and damages are claimed under Part 5 for harm resulting from the death.
30—Repeal of heading to Part 2A Division 2
Heading to Part 2A Division 2—delete the heading
31—Redesignation of section 24B—Damages for non-economic loss
Section 24B—redesignate the section as section 52
32—Substitution of section 24C
Section 24C—delete the section and
substitute:
53—Damages
for mental harm
(1) Damages may only be awarded for mental harm
if the injured person—
(a) was
physically injured in the accident or was present at the scene of the accident
when the accident occurred; or
(b) is
a parent, spouse or child of a person killed, injured or endangered in the
accident.
(2) Damages
may only be awarded for pure mental harm if the harm consists of a recognised
psychiatric illness.
(3) Damages
may only be awarded for economic loss resulting from consequential mental harm
if the harm consists of a recognised psychiatric illness.
33—Amendment and redesignation of section 24D—Damages for loss of earning capacity
(1) Section 24D—after subsection (2) insert:
(3) In
a case in which an action is brought for the benefit of the dependants of a
deceased person, the total amount awarded to compensate economic loss resulting
from the death of the deceased person (apart from expenses—such as funeral
expenses—actually incurred as a result of the death) cannot exceed the
prescribed maximum and if before the date of death the deceased person received
damages to compensate loss of earning capacity, the limit is to be reduced by
the amount of those damages.
(2) Section
24D—redesignate the section as amended by this section as section 54
34—Redesignation of section 24E—Lump sum compensation for future losses
Section 24E—redesignate the section as section 55
Section 24F—redesignate the section as section 56
36—Redesignation of section 24G—Exclusion of damages for cost of management or investment
Section 24G—redesignate the section as section 57
37—Redesignation of section 24H—Damages in respect of gratuitous services
Section 24H—redesignate the section as section 58
38—Repeal of heading to Part 2A Division 3
Heading to Part 2A Division 3—delete the heading to Division 3
Section 24I—delete the section
(1) Section 24J(2)—after paragraph (b) insert:
(c) —
(i) the
intoxication is wholly attributable to the use of drugs in accordance with the
prescription or instructions of a medical practitioner; and
(ii) the
injured person was complying with the instructions and recommendations of the
medical practitioner and the manufacturer of the drugs as to what he or she
should do, or avoid doing, while under the influence of the drugs.
(2) Section
24J—redesignate the section as amended by this section as section 46
41—Relocation of sections 24K to 24N
Sections 24K to 24N—redesignate the sections as sections 47 to 50
respectively and relocate the sections so that they follow section 45 in Part 7
(see section 27 of this Act)
42—Repeal of Part 2A Division 4
Part 2A Division 4—delete Division 4
43—Substitution of heading to Part 3
Heading to Part 3—delete the heading to
Part 3 and substitute:
Part 9—Miscellaneous
44—Substitution of heading to Part 3 Division 3
Heading to Part 3 Division 3—delete the
heading to Division 3 and substitute:
Division 1—Rights as between employer and
employee
45—Redesignation of section 27C—Rights as between employer and employee
Section 27C—redesignate the section as section 59
46—Repeal of Part 3 Division 4
Part 3 Division 4—delete Division 4
47—Redesignation of heading to Part 3 Division 5—Remedies against certain shipowners
Heading to Part 3 Division 5—redesignate the Division as Division
2
48—Redesignation of section 29—Remedy against shipowners and others for injuries
Section 29—redesignate the section as section 60
49—Redesignation of heading to Part 3 Division 6—Damage by aircraft
Heading to Part 3 Division 6—redesignate the Division as Division
3
50—Redesignation of section 29A—Damage by aircraft
Section 29A—redesignate the section as section 61
51—Redesignation of section 29B—Exclusion of liability for trespass or nuisance
Section 29B—redesignate the section as section 62
52—Redesignation of heading to Part 3 Division 7—Abolition of rule of common employment
Heading to Part 3 Division 7—redesignate the Division as Division
4
53—Redesignation of section 30—Abolition of rule of common employment
Section 30—redesignate the section as section 63
54—Redesignation of heading to Part 3 Division 8—Actions in tort relating to husband and wife
Heading to Part 3 Division 8—redesignate the Division as Division
5
55—Redesignation of section 32—Abolition of rule as to unity of spouses
Section 32—redesignate the section as section 64
56—Redesignation of section 33—Wife may claim for loss or impairment of consortium
Section 33—redesignate the section as section 65
57—Redesignation of section 34—Damages where injured spouse participated in a business
Section 34—redesignate the section as section 66
After section 34 (now designated as
section 66—see section 58 of this Act) insert:
Division 6—Limitation
on the award of damages for the costs of raising a child
67—Limitation
on the award of damages for the costs of raising a child
(1) In
an action to which this section applies, no damages are to be awarded to cover
the ordinary costs of raising a child.
(2) The
ordinary costs of raising a child include all costs associated
with the child's care, upbringing, education and advancement in life except, in
the case of a child who is mentally or physically disabled, any amount by which
those costs would reasonably exceed what would be incurred if the child were
not disabled.
(3) This section applies to—
(a) an
action for negligence resulting in the unintended conception of a child; or
(b) an
action for negligence resulting in the failure of an attempted abortion; or
(c) an
action for negligence resulting in the birth of a child from a pregnancy that
would have been aborted but for the negligence; or
(d) an
action for innocent misrepresentation resulting in—
(i) the
unintended conception of a child; or
(ii) the
birth of a child from a pregnancy that would have been aborted but for the
misrepresentation; or
(e) an
action for damages for breach of a statutory or implied warranty of
merchantable quality, or fitness for purpose, in a case where a child is
conceived as a result of the failure of a contraceptive device.
(4) In this section—
contraceptive device includes any medicine or substance used to prevent
conception;
innocent misrepresentation means any misrepresentation by words or
conduct made without an intention to deceive.
Heading to Part 3 Division 9—redesignate the Division as Division
7
60—Redesignation of section 35—Abolition of actions for enticement, seduction and harbouring
Section 35—redesignate the section as section 68
61—Redesignation of heading to Part 3 Division 10A—Unreasonable delay in resolution of claim
Heading to Part 3 Division 10A—redesignate the Division as
Division 8
62—Redesignation of section 35B—Definitions
Section 35B—redesignate the section as section 69
63—Redesignation of section 35C—Damages for unreasonable delay in resolution of a claim
Section 35C—redesignate the section as section 70
64—Redesignation of section 35D—Regulations
Section 35D—redesignate the section as section 71
65—Redesignation of heading to Part 3 Division 11—Liability for perjury in civil actions
Heading to Part 3 Division 11—redesignate the Division as Division
9
66—Redesignation of section 36—Liability for perjury in civil actions
Section 36—redesignate the section as section 72
67—Redesignation of heading to Part 3 Division 12—Racial victimisation
Heading to Part 3 Division 12—redesignate the Division as Division
10
68—Redesignation of section 37—Racial victimisation
Section 37—redesignate the section as section 73
69—Redesignation of heading to Part 3 Division 13—Good samaritans
Heading to Part 3 Division 13—redesignate the Division as Division
11
70—Redesignation of section 38—Good samaritans
Section 38—redesignate the section as section 74
71—Redesignation of heading to Part 3 Division 14—Expressions of regret
Heading to Part 3 Division 14—redesignate the Division as Division
12
72—Redesignation of section 39—Expressions of regret
Section 39—redesignate the section as section 75
Part 3—Amendment of Limitation of Actions Act 1936
73—Amendment of section 3—Interpretation
Section 3—after the definition of action
insert:
child means a person under the age of 18 years;
74—Amendment of section 45—Persons under legal disability
Section 45(2)—delete "an infant"
and substitute:
a child
After section 45 insert:
45A—Special
provision regarding children
(1) If—
(a) a
child (the plaintiff) suffers personal injury; and
(b) the
time for bringing an action for damages is extended by this Act to more than 6
years from the date of the incident out of which the injury arose (the relevant
date),
notice of an intended action must be given within 6 years after
the relevant date by, or on behalf of, the child to the person or persons
alleged to be liable in damages (the defendant).
Exception—
If the injury arises from an intentional tort and the action is to
be brought against the person who actually committed the tort, notice of the action
need not be given to that person, but if any other person is alleged to be
liable for the tort, notice must be given to that other person.
(2) If
the injury is alleged to have arisen out of a motor accident, the notice must
be given to the relevant third-party insurer.
(3) The
notice is to contain the information required by regulation.
(4) The plaintiff (or, if the plaintiff is
still a child, the plaintiff's parent or guardian) must comply with a
reasonable request by the defendant—
(a) to
provide copies of medical and other records and reports in the possession or
power of the plaintiff (or the plaintiff's parent or guardian) relevant to the
nature and extent of the plaintiff's injury and any consequent disability; or
(b) to
undergo examination, at the expense of the defendant, by a medical expert for
the purpose of ascertaining the nature and extent of the plaintiff's injury and
any consequent disability.
(5) The
defendant may, by written notice to the plaintiff (or, if the plaintiff is
still a child, the plaintiff's parent or guardian) require the plaintiff,
within 6 months after the date of the notice, to bring an action so that the
claim may be judicially determined.
(6) In
any such action, the court may, if it thinks it appropriate, exercise its power
to make a determination of liability and adjourn final assessment of damages
until a later date.
(7) Non-compliance with a requirement of this
section on the part of a plaintiff does not prevent the plaintiff from bringing
an action for damages but unless the court is satisfied that there is good
reason to excuse the non-compliance—
(a) no
damages will be allowed in such an action to compensate or allow for medical or
gratuitous services provided before the date the action was commenced; and
(b) no
legal or other costs incurred in contemplation of the action or a possible
action will be allowed.
76—Amendment of section 48—General power to extend periods of limitation
Section 48—after subsection (3) insert:
(3a) A fact is not to be regarded as material to
the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a) it
forms an essential element of the plaintiff's cause of action; or
(b) it
would have major significance on an assessment of the plaintiff's loss.
Example—
In a case involving personal injury, a
fact might qualify as a fact material to the plaintiff's case if it establishes—
(a) a
substantial reduction of the plaintiff's capacity to work; or
(b) that
the plaintiff will require substantially more medical care than previously
expected; or
(c) a
significant loss of expectation of life.
(3b) In determining whether it is, in all the
circumstances of a case, just to grant an extension of time, the court should
have regard to—
(a) the
period of extension sought and, in particular, whether the passage of time has
prejudiced a fair trial; and
(b) the
desirability of bringing litigation to an end within a reasonable period and
thus promoting a more certain basis for the calculation of insurance premiums;
and
(c) the
nature and extent of the plaintiff's loss and the conduct of the parties
generally; and
(d) any
other relevant factor.
Part 4—Amendment of Motor Vehicles Act 1959
77—Amendment of section 99—Interpretation
(1) Section 99(1)—after the definition of
"owner" insert:
participant in a road race includes a driver or navigator of, or passenger
in, a motor vehicle that takes part in the road race;
(2) Section 99(1)—after the definition of
"policy of insurance" insert:
road race means any contest—
(a) that
tests the speed or reliability of motor vehicles or the skill or endurance of
their drivers or navigators; and
(b) that—
(i) is
declared to be an event to which section 33 of the Road Traffic
Act 1961 applies; or
(ii) takes
place on a race track established or adapted for the purpose of such contests;
78—Amendment of section 104—Requirements if policy is to comply with this Part
Section 104—after its present contents
(now to be designated as subsection (1)) insert:
(2) However,
a policy of insurance complies with this Part even though it contains an
exclusion of liability of the nature and extent prescribed by clause 4 of
Schedule 4.
79—Amendment of section 124A—Recovery by insurer
Section 124A—after subsection (2) insert:
(3) Where
an insured person incurs, as a participant in a road race, a liability against
which he or she is insured under this Part, the insurer may, by action in a
court of competent jurisdiction, recover from the organiser of the road race
the amount of the liability and the reasonable costs incurred by the insurer in
respect of that liability.
80—Amendment of Schedule 4—Policy of insurance
Schedule 4—after clause 3 insert:
Schedule 1—Transitional provision
(1) The
amendments made by the Law Reform (Ipp Recommendations) Act 2003 (the Ipp
Recommendations Act) are intended to apply only prospectively.
(2) If a cause of action that is based wholly
or partly on an event that occurred before the commencement of the Ipp
Recommendations Act arises after the commencement of the Ipp Recommendations
Act, it will be determined as if the amendments had not been enacted.
Example—
Suppose that A was exposed to asbestos in 1990 but a resultant
illness is not diagnosed until after the commencement of the Ipp
Recommendations Act. An action is then brought in negligence in which damages
are claimed for personal injury. The amendments made by the Ipp Recommendations
Act would not affect the determination of liability or the assessment of
damages.
(3) As soon as practicable after the expiration of 3 years from the commencement of this Schedule, the Economic and Finance Committee must investigate and report to the Parliament on the effect of this Act on the availability and cost of insurance to persons.