Civil Liability Act 2002 (Tas)

Civil Liability Act 2002 An Act to effect civil liability reforms [Royal Assent 19 December 2002] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Civil Liability Act 2002 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – adult average weekly earnings means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading "AVERAGE WEEKLY EARNINGS, Australia: Original" in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time; 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; duty means – (a) a duty of care in tort; or (b) a duty of care under contract that is co-extensive with a duty of care in tort; or (c) another duty under statute or otherwise that is co-extensive with a duty of care referred to in paragraph (a) or (b) ; future loss means all or any of the following: (a) future economic loss; (b) future general expenses; (c) future medical expenses; (d) future gratuitous services; gratuitous services means services of a domestic nature or services relating to nursing or attendance provided to a person for which that person does not pay or is not liable to pay; non-economic loss means any one or more of the following: (a) pain or suffering; (b) loss of amenities of life; (c) loss of enjoyment of life; (d) curtailment of life expectancy; (e) bodily or mental harm; personal injury includes – (a) pre-natal injury; and (b) impairment of a person's physical or mental condition; and (c) disease. 3A. Provisions relating to operation of Act (1) This Act does not create or confer any cause of civil action for the recovery of damages. (2) 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. (3) This Act, other than Part 7 , does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract in relation to any matter to which this Act applies and does not limit or otherwise affect the operation of such an express provision. (4) Subsection (3) extends to any provision of this Act even if the provision applies to liability in contract. (5) This Act is not a codification of the law relating to civil claims for damages for harm. 3B. Civil liability excluded from Act (1) This Act does not apply to or in respect of civil liability – (a) in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct; or (b) relating to an award of damages for personal injury or death where the injury or death concerned resulted from smoking or other use of tobacco products. (1A) Despite subsection (1) , Part 10C applies in respect of an intentional act that is child abuse, within the meaning of section 49J(3) . (2) This Act, except Parts 2 , 3 , 5 and 5A , Divisions 1 , 2 , 3 , 4 and 7 of Part 6 and Parts 7 and 8, does not apply to or in respect of civil liability relating to an injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies. (3) This Act does not apply to civil liability relating to an injury to which Division 2 of Part X of the Workers Rehabilitation and Compensation Act 1988 applies. (4) This Act does not apply to liability for compensation under the Workers Rehabilitation and Compensation Act 1988 , the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 , the Criminal Injuries Compensation Act 1976 or the Anti-Discrimination Act 1998 or a scheduled benefit under the Motor Accidents (Liabilities and Compensation) Act 1973 . (5) The regulations may exclude a specified class or classes of civil liability from the operation of all or any provisions of this Act. (6) Regulations referred to in subsection (5) may make transitional provision with respect to claims relating to acts or omissions which occurred before the commencement of the regulations. 3C. Application of Act to non-delegable duty This Act applies to a claim for damages for breach of a non-delegable duty. 4. Application of Act (1) Parts 2 , 3 and 4 do not apply to a cause of action accrued before the commencement of this Act. (2) Part 5 and section 12 apply to a cause of action accrued whether before or after the commencement of this Act. (2A) Part 5A applies to a cause of action accrued, and an action commenced, whether before or after the commencement of section 7 of the Civil Liability Amendment Act 2013. (2B) However, Part 5A does not apply to an action commenced before the commencement of section 7 of the Civil Liability Amendment Act 2013 if – (a) the hearing of the action had commenced before that commencement; or (b) damages had been awarded in that action before that commencement; or (c) a settlement had been reached in that action before that commencement, other than a settlement that only relates to damages that, if they had been awarded by a court, would be provisional damages within the meaning of section 8B(1) . (3) Part 6 , other than section 12 , and Parts 7 , 8 , 9 , 10 and 11 do not apply to a cause of action accrued before 4 July 2003. (3A) Sections 28A , 28B , 28C and 28D do not apply to a cause of action accrued before the commencement of the Civil Liability Amendment Act 2005 . (3B) Section 28BA does not apply to a cause of action accrued before the commencement of section 9 of the Civil Liability Amendment Act 2013. (3C) The amendment to section 28C effected by section 10 of the Civil Liability Amendment Act 2013 does not apply to a cause of action accrued before the commencement of section 10 of that Act. (4) Part 9A does not apply to a cause of action accrued before the commencement of the Civil Liability Amendment (Proportionate Liability) Act 2005 . (5) Parts 8A and 8B do not apply in relation to a cause of action accrued before the commencement of the Civil Liability Amendment Act 2008 . (6) Part 10B applies to a cause of action accrued after the commencement of that Part . (7) Section 49H applies only in respect of child abuse perpetrated after the commencement of that section. (8) Section 49J applies only in respect of child abuse perpetrated after the commencement of that section. (9) Division 4 of Part 10C extends to child abuse proceedings in respect of child abuse perpetrated before the commencement of that Division. (10) In this section – child abuse has the same meaning as in section 49J(3) ; child abuse proceedings has the same meaning as in section 49L . 4AA. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Intoxication 4A. Application of Part 2 This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B . 5. Presumption of contributory negligence where person intoxicated (1) If it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was, at the time of the act or omission that caused the death, injury or damage, intoxicated to the extent that the person's capacity to exercise due care and skill was impaired, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (2) If there is a presumption of contributory negligence, the court is to assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater or lesser percentage determined by the court to be appropriate in the circumstances of the case. (3) The onus of satisfying the court that damages ought to be reduced on account of contributory negligence by a percentage of less than 25% is on the person whose death, injury or damage is the subject of the proceedings for the recovery of damages. (4) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced. (5) Subject to subsection (6) , a reference in this section to a person being "intoxicated" is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken). (6) A person who has taken a drug for a medicinal purpose is not to be taken to be intoxicated for the purposes of this section if the person satisfies the court that he or she was not aware of the effect of the drug taken. PART 3 - Recovery by criminals 5A. Application of Part 3 This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B . 6. Criminals not to be awarded damages (1) A court is not to award damages if the court is satisfied that – (a) the person whose death, injury or damage is the subject of the proceedings was, at the time of the incident that resulted in the death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence; and (b) the conduct contributed materially to the risk of the death, injury or damage that was suffered. (2) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence relating to the conduct. (3) In this section, serious offence means an offence punishable by imprisonment for a term greater than 6 months. PART 4 - Apologies 6A. Application of Part 4 This Part applies to civil liability of any kind, except civil liability that is excluded from the operation of this Part by section 3B . 7. Effect of apology on liability (1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person – (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. (3) In this section, apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter. PART 5 - Structured Settlements 7A. Application of Part 5 This Part applies to civil liability of any kind for damages for personal injury or death, except civil liability that is excluded from the operation of this Part by section 3B . 8. Court may make consent order for structured settlement (1) A court may, on the application of the parties to a claim for damages for personal injury or death of a person, make an order approving of, or in 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) For the purposes of this section, a structured settlement is 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. PART 5A - Provisional Damages 8A. Application of Part 5A This Part applies to civil liability of any kind for damages for personal injury or death, except civil liability that is excluded from the operation of this Part by section 3B . 8B. Provisional damages for asbestos-related conditions (1) If it is proved or admitted in an action for damages in respect of a dust-related disease (the first disease) of a person that the person may, at some definite or indefinite time in the future, develop another dust-related disease wholly or partly as a result of the act or omission giving rise to the cause of action, the court may – (a) award, in the first instance, damages (provisional damages) for the first disease, assessed on the assumption that the person will not develop another dust-related disease; and (b) award damages at a future date if the person does develop another dust-related disease. (2) In this section – dust-related disease means – (a) any of the following diseases: (i) aluminosis; (ii) asbestosis; (iii) asbestos-induced carcinoma; (iv) asbestos-related pleural diseases; (v) bagassosis; (vi) berylliosis; (vii) byssinosis; (viii) coal dust pneumoconiosis; (ix) farmers' lung; (x) hard metal pneumoconiosis; (xi) mesothelioma; (xii) silicosis; (xiii) silico-tuberculosis; (xiv) talcosis; or (b) any other pathological condition of the lung, pleura or peritoneum that is attributable to dust. PART 6 - Breach of Duty Division 1 - Preliminary 9. Interpretation In this Part, harm means harm of any kind, including the following: (a) personal injury or death; (b) damage to property; (c) pure economic loss. 10. Application of Part 6 This Part applies to civil liability of any kind for damages for harm resulting from breach of duty, except civil liability that is excluded from the operation of this Part by section 3B. Division 2 - Standard of care 11. General principles (1) A person does not breach a duty to take reasonable care unless – (a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among 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 potential net benefit of the activity that exposes others to the risk of harm. (3) For the purpose of subsection (2)(c) , the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. 12. Other principles In a proceeding relating to liability for breach of duty – (a) 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 (b) the subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk. Division 3 - Causation 13. General principles (1) Prerequisites for a decision that a breach of duty caused particular harm are as follows: (a) the breach of duty was a necessary element of the occurrence of the harm ("factual causation"); (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ("scope of liability"). (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty, being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) , should be taken as satisfying subsection (1)(a) , the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. (3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach – (a) the matter is to be decided 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 deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty. 14. Onus of proof In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact on which the plaintiff wishes to rely relevant to the issue of causation. Division 4 - Obvious risks 15. Meaning of "obvious risk" (1) For the purpose 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. (5) A risk is not an obvious risk merely because a warning about the risk has been given. 16. Persons suffering harm presumed to be aware of obvious risks (1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the existence of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the existence of the risk. (2) For the purpose of this section, a person is aware of the existence of a risk if the person is aware of the existence 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. 17. No proactive duty to warn of obvious risk (1) A person ("the defendant") does not owe a duty 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 by a written law to warn the plaintiff of the risk; or (c) the defendant is a professional, other than a medical practitioner, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service to the plaintiff by the defendant in the defendant's professional capacity. (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. Division 5 - Dangerous recreational activities 18. Application of Division (1) This Division applies only in respect of liability for breach of duty resulting in harm to a person from a dangerous recreational activity engaged in by that person. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 19. Interpretation In this Division – dangerous recreational activity means a recreational activity that involves a significant degree of risk of physical harm to a person; obvious risk has the same meaning as it has in Division 4 ; recreational activity includes any pursuit or activity engaged in for enjoyment, relaxation or leisure. 20. No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person is not liable for a breach of duty 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. Division 6 - Professional negligence 21. Proactive and reactive duty of registered medical practitioner to warn of risk (1) A medical practitioner does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of the patient being given medical advice) that will involve or give rise to a risk of personal injury to the patient, unless the medical practitioner at that time fails to give or arrange to be given to the patient the following information about the risk (whether or not the patient asks for the information): (a) information that a reasonable person in the patient's position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the medical practitioner knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice. (2) This section does not apply where a medical practitioner has to act promptly to avoid serious risk to the life or health of the patient and – (a) the patient is not able to hear or respond to a warning about the risk to the patient; and (b) there is not sufficient time for the medical practitioner to contact a person responsible for making a decision for the patient. (3) In this section, patient, when used in a context of asking for or being given information, includes a person who has the responsibility for making a decision about the medical treatment to be undergone by a patient if the patient is under a legal disability. 22. Standard of care for professionals (1) A person practising a profession ("a professional") does not breach a duty 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) Peer professional opinion cannot be relied on for the purpose 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 purpose of subsection (1) . (4) Peer 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 relation to the risk of harm associated with the provision by a professional of a professional service to a person. Division 7 - Contributory negligence 23. 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 for the purpose of apportioning liability under section 4 of the Wrongs Act 1954 . (2) For the purpose of apportioning liability under section 4 of the Wrongs Act 1954 – (a) the standard of care required of the person who suffered harm is that required 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. PART 7 - Assessment of Damages for Personal Injury or Death 24. Application of Part 7 This Part applies in relation to an award of damages for personal injury or death resulting from a breach of duty, except civil liability that is excluded from the operation of this Part by section 3B . 25. Damages for loss of superannuation entitlements (1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based. (2) In this section, relevant percentage means the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions. 26. Damages for loss of earning capacity (1) Where a person is entitled to damages in respect of loss of earning capacity or where a claim for damages is made pursuant to the Fatal Accidents Act 1934 , a court must not award those damages on the basis the person was, or may have been capable of, earning income at greater than 3 times the adult average weekly earnings as last published by the Australian Bureau of Statistics before damages are awarded. (2) . . . . . . . . 27. Restrictions on damages for non-economic loss (general damages) Note Amounts A and B are varied by notice published in the Gazette. See subsection (6). (1) If the amount of non-economic loss is assessed to be not more than Amount A, no damages are to be awarded for non-economic loss. (2) If the amount of non-economic loss is assessed to be more than Amount A but not more than Amount B, damages awarded for non-economic loss are calculated as follows: (3) If the amount of non-economic loss is assessed to be more than Amount B, damages awarded for non-economic loss are an amount equal to the amount assessed. (4) For the purpose of this section – (a) "Amount A" is – (i) for the financial year ending on 30 June 2004, $4 000; and (ii) for the financial year commencing on 1 July 2004 and for each subsequent financial year, calculated in accordance with the following formula and rounded off in accordance with subsection (5) : where – A is the value in dollars of Amount A for the relevant financial year; Ao is $4 000; C is the value of the CPI figure for Hobart for the March quarter immediately preceding the financial year in which the threshold amount is to apply; D is the value of the CPI figure for Hobart for the March quarter 2003; and (b) "Amount B" is five times Amount A. (5) If the value of Amount A, calculated in accordance with the formula specified in subsection (4)(a) , is not a multiple of $500, the amount is to be rounded off to the nearest multiple of $500, with an amount that is $250 more than a multiple of $500 being rounded off to the next highest multiple of $500. (6) On or before 1 July 2004 and on or before 1 July in each subsequent year, the Minister is to publish a notice in the Gazette specifying the amounts that are Amount A and Amount B for the financial year commencing on that 1 July. (7) Publication under subsection (6) is for public information only and a failure to publish or a delay or error in publication does not affect what is Amount A or Amount B for the year concerned. (8) In this section, CPI figure for Hobart means the Consumer Price Index: All Groups Index Number for Hobart published by the Australian Statistician under the authority of the Census and Statistics Act 1905 of the Commonwealth. 28. Tariffs for damages for non-economic loss (general damages) (1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions. (3) In this section – other courts includes a court of any jurisdiction within Australia, including Tasmania. 28A. Discount rate applicable to certain damages If an award of damages is to include any component assessed as a lump sum for future loss, the present value of that future loss is to be qualified by adopting – (a) a discount rate of 5 per cent; or (b) if another discount rate is prescribed, that other discount rate. 28B. Damages for gratuitous services (1) Damages for gratuitous services may be awarded in respect of gratuitous services required by the person as a result of injuries to that person caused by the negligence of another person. (2) A person may not recover damages for gratuitous services unless the services have been provided, or are likely to be provided, to that person for more than 6 hours per week and for more than 6 consecutive months. (3) In calculating damages for gratuitous services – (a) the hourly rate is not to exceed one-fortieth of adult average weekly earnings; and (b) the weekly rate is not to exceed adult average weekly earnings. (4) Nothing in this section prevents the award of damages under the Fatal Accidents Act 1934 for the loss of gratuitous services provided by a person whose death is caused by a wrongful act, neglect or default, within the meaning of that Act. 28BA. Damages for loss of capacity to provide gratuitous services to another (1) A person may recover, in relation to a personal injury, damages for the loss of capacity to provide gratuitous services to another person. (2) A person (the claimant) may recover under subsection (1) , in relation to a personal injury, damages for the loss of capacity to provide gratuitous services to another person only if – (a) either – (i) the claimant was, before the loss of capacity occurred, providing the services to the other person for more than 6 hours per week and more than 6 consecutive months and it was necessary for the services to be provided to the other person; or (ii) the other person was, before the injury occurred, an unborn child of the person; and (b) the other person – (i) is a person