Civil Liability Act 2002 (NSW)

Civil Liability Act 2002 No 22 An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Civil Liability Act 2002. 2 Commencement This Act is taken to have commenced on 20 March 2002. 3 Definitions In this Act— affected agreement, for Part 1C—see section 7C. applicant, for Part 1C—see section 7D. cognitive impairment has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. court includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined. damages includes any form of monetary compensation but does not include— (a) any payment authorised or required to be made under a State industrial instrument, or (b) any payment authorised or required to be made under a superannuation scheme, or (c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy. mental health impairment has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 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. special verdict of act proven but not criminally responsible has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 3A Provisions relating to operation of Act (1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law. (2) This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision. (3) Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract. 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows— (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except— (ia) Part 1B (Child abuse—liability of organisations), and (i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody), (b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989—the whole Act except sections 15A and 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), (c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products—the whole Act except section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), (d) civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e) civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988)—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e1) civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies—the whole Act (other than Part 1B), Note— Section 151E(2A) of the Workers Compensation Act 1987 provides that Division 3 of Part 5 of that Act does not apply to an award of damages that arises from abuse against a child (whether arising under Part 1B of this Act or the common law). (g) civil liability for compensation under the Workers Compensation Act 1987, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, the Workers' Compensation (Dust Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978—the whole Act, (h) civil liability for financial assistance for economic loss under the Victims Rights and Support Act 2013—the whole Act. (2) The following provisions apply to motor accidents— (a) Divisions 1–4 and 8 of Part 1A (Negligence), (a1) section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (c) section 17A (Tariffs for damages for non-economic loss), (c1) section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), (d) Division 7 (Structured settlements) of Part 2, (e) Part 3 (Mental harm), (f) section 49 (Effect of intoxication on duty and standard of care), (g) Part 7 (Self-defence and recovery by criminals), (h) Part 8 (Good samaritans). (3) The regulations may exclude a specified class or classes of civil liability (and awards of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation. 3C Act operates to exclude or limit vicarious liability Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort. 4 Miscellaneous provisions (1) Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. (2) Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (3) Notes Notes included in this Act do not form part of this Act. (4) Savings and transitional provisions Schedule 1 has effect. Part 1A Negligence Division 1 Preliminary 5 Definitions In this Part— harm means harm of any kind, including the following— (a) personal injury or death, (b) damage to property, (c) economic loss. negligence means failure to exercise reasonable care and skill. personal injury includes— (a) pre-natal injury, and (b) impairment of a person's physical or mental condition, and (c) disease. 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. Division 2 Duty of care 5B General principles (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 care 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. 5C Other principles In proceedings relating to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. Division 3 Causation 5D 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) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, 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. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent— (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) 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. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Division 4 Assumption of risk 5F 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 a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not 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. 5H No proactive 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) This section does not apply if— (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional 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. 5I 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 5 Recreational activities 5J Application of Division (1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions In this Division— dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes— (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk. 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if— (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent). (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean— (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section— incapable person means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning. parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person. 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. Division 6 Professional negligence 5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer 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 peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. 5P Division does not apply to duty to warn of risk This Division 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 the risk of death of or injury to a person associated with the provision by a professional of a professional service. Division 7 Non-delegable duties and vicarious liability 5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task. (2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A. Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose— (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 5T Contributory negligence—claims under the Compensation to Relatives Act 1897 (1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person. (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897. 6–8 (Repealed) Part 1B Child abuse—liability of organisations Division 1 Preliminary 6A Definitions In this Part— child means a person under the age of 18 years. function includes a power, authority or duty, and exercise a function includes perform a duty. organisation means any organisation, whether incorporated or not, and includes a public sector body but does not include the State. public sector body means the following— (a) a government sector agency within the meaning of the Government Sector Employment Act 2013, (b) a service of the Crown in which persons excluded from the Government Sector Employment Act 2013 by section 5 of that Act are employed, (c) a statutory body representing the Crown that is authorised by legislation to employ staff, (d) a statutory body representing the Crown that at any time received funding from the State for a public purpose, (e) a body (however described) that has been superseded by a body listed in paragraphs (a)–(d), (f) a body (however described) of a kind referred to in paragraphs (a)–(d) that has been abolished. 6B Application of Part (1) Nothing in section 5Q or Part 2A or 5 protects a person from civil liability arising under this Part or places any restriction or limitation on an award of damages made pursuant to this Part. (2) A person is not prevented from seeking compensation under Divisions 2 and 3 in respect of the same child abuse but in such a case, an award of damages under either of those Divisions must take into account any award already made under the other Division. 6C Successor organisations An organisation and any successor of that organisation are, for the purposes of this Part, taken to be the same organisation. Division 2 Duty of organisations to prevent child abuse 6D Organisations that are responsible for a child In this Division— (a) an organisation is responsible for a child if it (including any part of it) exercises care, supervision or authority over the child (or purports to do so or is obliged by law to do so), and (b) if an organisation (including any part of it) delegates the exercise of care, supervision or authority over a child to another organisation (in whole or in part), each organisation is responsible for the child. 6E Individuals who are associated with organisations (1) In this Division, an individual associated with an organisation without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation and also includes the following— (a) if the organisation is a religious organisation—a religious leader (such as a priest or a minister) or member of the personnel of the organisation, (b) if the organisation or part of the organisation is a designated agency within the meaning of the Children's Guardian Act 2019—an individual authorised by the designated agency (under that Act) as an authorised carer, (c) an individual, or an individual belonging to a class of individuals, prescribed by the regulations. (2) An individual is not associated with an organisation solely because the organisation wholly or partly funds or regulates another organisation. (3) An individual associated with an organisation to which the exercise of care, supervision or authority over a child has been delegated, in whole or in part, is also taken to be an individual associated with the organisation from which the exercise of care, supervision or authority was delegated. 6F Liability of organisation for child abuse by associated individuals (1) This section imposes a duty of care that forms part of a cause of action in negligence. (2) An organisation that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse of the child in connection with the organisation's responsibility for the child. (3) In proceedings against an organisation involving a breach of the duty of care imposed by this section, the organisation is presumed to have breached its duty if the plaintiff establishes that an individual associated with the organisation perpetrated the child abuse in connection with the organisation's responsibility for the child, unless the organisation establishes that it took reasonable precautions to prevent the child abuse. (4) In determining, for the purposes of this section, whether an organisation took reasonable precautions to prevent child abuse, a court may take into account any of the following— (a) the nature of the organisation, (b) the resources reasonably available to the organisation, (c) the relationship between the organisation and the child, (d) whether the organisation has delegated in whole or in part the exercise of care, supervision or authority over a child to another organisation, (e) the role in the organisation of the individual who perpetrated the child abuse, (f) the level of control the organisation had over the individual who perpetrated the child abuse, (g) whether the organisation complied with any applicable standards (however described) in respect of child safety, (h) any matter prescribed by the regulations, (i) any other matter the court considers relevant. (5) In this section— child abuse, of a child, means sexual abuse or physical abuse of the child but does not include an act that is lawful at the time it takes place. Division 3 Vicarious liability of organisations 6G Employees include persons exercising functions akin to employees (1) In this Division— employee of an organisation includes an individual who is akin to an employee of the organisation. (2) An individual is akin to an employee of an organisation if the individual carries out activities as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation. (3) However, an individual is not akin to an employee if— (a) the activities are carried out for a recognisably independent business of the individual or of another person or organisation, or (b) the activities carried on by the individual are the activities of an authorised carer carried on in the individual's capacity as an authorised carer. (4) The regulations may, despite subsections (2) and (3), prescribe circumstances in which an individual will be akin to an employee or not akin to an employee. (5) In this section— authorised carer means a person who is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998 other than a person who is an authorised carer only because the person is the principal officer of a designated agency. 6H Organisations vicariously liable for child abuse perpetrated by employees (1) An organisation is vicariously liable for child abuse perpetrated against a child by an employee of the organisation if— (a) the apparent performance by the employee of a role in which the organisation placed the employee supplies the occasion for the perpetration of the child abuse by the employee, and (b) the employee takes advantage of that occasion to perpetrate the child abuse on the child. (2) In determining if the apparent performance by the employee of a role in which the organisation placed the employee supplied the occasion for the perpetration of child abuse on a child, a court is to take into account whether the organisation placed the employee in a position in which the employee has one or more of the following— (a) authority, power or control over the child, (b) the trust of the child, (c) the ability to achieve intimacy with the child. (3) This section does