New South Wales: 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 not affect, and is in addition to, the common law as it applies with respect to vicarious liability. (4) In this section— child abuse means sexual abuse or physical abuse perpetrated against a child but does not include any act that is lawful at the time that it takes place. Division 4 Proceedings against unincorporated organisations 6I Objects of Division The objects of this Division are— (a) to enable child abuse proceedings to be brought against unincorporated organisations, and (b) to enable an organisation to pay liabilities arising from child abuse proceedings from the assets of an associated trust in certain circumstances. 6J Definitions In this Division— associated trust—see section 6N(3). child abuse proceedings means proceedings for a civil claim arising from abuse (including sexual abuse) against a child, whether arising under this Part or the common law. entity includes the trustees of a trust. legal personality, in respect of an organisation, means the organisation is incorporated and capable of being sued and found liable. management member of an unincorporated organisation means— (a) a member of any management committee of the organisation, or (b) if the organisation does not have a management committee, a person who is concerned with, or takes part in, the management of the organisation, regardless of the person's title or position. suitable proper defendant—see section 6M. unincorporated organisation means an organisation that is not incorporated. 6K Child abuse proceedings may be commenced against unincorporated organisation (1) Child abuse proceedings may be commenced or continue against an unincorporated organisation in the name of the organisation or in a name reasonably sufficient to identify the organisation as if the organisation had legal personality. (2) For the purposes of this Division, a function that may be exercised by an unincorporated organisation may be exercised by a management member of the organisation. (3) A court may make the orders and directions it sees fit for the purposes of this Division, in particular to further the objects of this Division. (4) Without limiting subsection (3), a court may direct one or more management members of an unincorporated organisation to exercise a specified function of the organisation under this Division. 6L Unincorporated organisation may appoint proper defendant (1) An unincorporated organisation may, with the consent of an entity, appoint the entity as a proper defendant for the organisation at any time. (2) An appointment is to be made in accordance with the Uniform Civil Procedure Rules 2005. (3) However, if the unincorporated organisation is a public sector body, the State is taken to be appointed as the proper defendant. 6M Entities suitable to be appointed as proper defendant For the purposes of this Division, an entity is suitable to be appointed as a proper defendant for an organisation if— (a) the entity is able to be sued in this State, and (b) the entity (or, if the entity is a trustee of a trust, the trust) has sufficient assets in this State to satisfy any judgment or order that may arise out of child abuse proceedings against the unincorporated organisation. 6N Court may appoint proper defendant (1) This section applies if— (a) child abuse proceedings are commenced against an unincorporated organisation and no suitable proper defendant is appointed for the organisation by the end of 120 days after the unincorporated organisation (or a management member of the unincorporated organisation) is served with notice of the commencement of the proceedings, or (b) after that time, the proper defendant appointed ceases to be a suitable proper defendant. (2) The court in which the child abuse proceedings are commenced may, on the application of the plaintiff, appoint the trustees of one or more of the following trusts if the trustees are suitable to be appointed as a proper defendant for the organisation— (a) an associated trust of the organisation, (b) a trust that was formerly an associated trust of the organisation if the court considers that the trust ceased to be an associated trust in an attempt to avoid trust property being applied to satisfy any liability that may be incurred in child abuse proceedings and it would be unjust not to appoint the trustees of the trust. (3) A trust is an associated trust of an unincorporated organisation, for the purposes of this Division, if one or more of the following apply— (a) the organisation has, either directly or indirectly, the power to control the application of the income, or the distribution of the property, of the trust, (b) the organisation has the power to obtain the beneficial enjoyment of the property or income of the trust with or without the consent of another entity, (c) the organisation has, either directly or indirectly, the power to appoint or remove the trustee or trustees of the trust, (d) the organisation has, either directly or indirectly, the power to appoint or remove beneficiaries of the trust, (e) the trustee of the trust is accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the organisation, (f) the organisation has, either directly or indirectly, the power to determine the outcome of any other decisions about the trust's operations, (g) a member of the organisation or a management member of the organisation has, under the trust deed applicable to the trust, a power of a kind referred to in paragraphs (a)–(f) but only if the trust has been established or used for the activities of the organisation or for the benefit of the organisation. (4) On the making of an application by a plaintiff under this section, the unincorporated organisation must, within 28 days after the application is made, identify to the court any associated trusts of the organisation, including by identifying the financial capacity of those trusts. 6O Effect of appointment of proper defendant On the appointment of a proper defendant for an unincorporated organisation— (a) the proper defendant is taken to be the defendant in the child abuse proceedings against the organisation on behalf of the organisation and is responsible for conducting the proceedings as the defendant, and (b) anything done by the unincorporated organisation is taken to have been done by the proper defendant and a duty or obligation of the unincorporated organisation in relation to the proceedings is a duty or obligation owed by the proper defendant, and (c) the unincorporated organisation must continue to participate in the child abuse proceedings and a court may make orders or directions in respect of the organisation as if the organisation had legal personality, and (d) a court may make substantive findings in the child abuse proceedings against an unincorporated organisation as if the organisation had legal personality, and (e) the proper defendant incurs any liability from the claim in the proceedings on behalf of the organisation that the organisation would have incurred if the organisation had legal personality (including any costs awarded), and (f) the proper defendant may rely on any defence or immunity that would be available to the organisation as a defendant in the proceedings if the organisation had legal personality, and (g) any right of the unincorporated organisation to be indemnified (including under a policy of insurance) in respect of damages awarded in a claim in child abuse proceedings extends to, and indemnifies, the proper defendant, and (h) if more than one proper defendant is appointed, the proper defendants must file a single defence and proceed as a single defendant. 6P Special provisions applying when trustees of associated trust appointed (1) Despite any Act or other law or instrument (including any trust deed), the trustees of an associated trust of an unincorporated organisation may do one or more of the following— (a) consent to be appointed by the organisation as a proper defendant, (b) supply any information about the trust that may be required under this Division, including identifying the financial capacity of the trust, (c) apply trust property to satisfy any liability incurred by the trustee as a proper defendant in child abuse proceedings. (2) Liability of a trustee of an associated trust incurred by the trustee as a proper defendant in child abuse proceedings is limited to the value of the trust property. (3) The satisfaction of any liability incurred by a trustee of an associated trust as a proper defendant in child abuse proceedings is a proper expense for which the trustee may be indemnified out of the trust property, irrespective of any limitation on any right of indemnity a trustee may have. (4) A trustee of an associated trust is not liable for a breach of trust only because of doing anything authorised by this section. (5) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of the Corporations legislation generally. Note— Section 5G of the Corporations Act 2001 of the Commonwealth enables a State to displace the operation of the provisions of the Corporations legislation of the Commonwealth in favour of provisions of State laws that are declared under State law to be Corporations legislation displacement provisions for the purposes of that section. See, in particular, section 5G(4) and (11) of the Corporations Act 2001 of the Commonwealth in relation to the displacement effected by this section. (6) In this section— liability incurred by the trustee as a proper defendant in child abuse proceedings includes any unpaid judgment debt arising from the proceedings, any amount paid in settlement of the proceedings and any costs associated with the proceedings. Division 5 Rules 6Q Rules of court (1) The Uniform Rules Committee under the Civil Procedure Act 2005 may make rules, not inconsistent with this Part, for or with respect to any matter that by this Part is required or permitted to be prescribed by rules or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to this Part. (2) In particular, the rules may make provision for or with respect to the following matters— (a) the practice and procedure to be followed in respect of proceedings under this Part and any matters incidental to or relating to that practice and procedure, (b) the protection of the privacy of plaintiffs, (c) the duties of registrars and other officers of a court in relation to or for the purpose of the operation of this Part, (d) the forms to be used in connection with the operation of this Part. (3) Rules made by the Uniform Rules Committee for the purposes of this Part are to form part of the rules made by that Committee under the Civil Procedure Act 2005. Part 1C Child abuse—setting aside settlements 7A Definitions In this Part— affected agreement—see section 7C. applicant—see section 7D. 7B Object of Part The object of this Part is to provide a way for a person to seek to have an agreement set aside if— (a) the agreement settled a claim for child abuse perpetrated against the person, and (b) at the time of the agreement, there were certain legal barriers to the person being fully compensated through a legal cause of action. 7C Meaning of "affected agreement" (1) In this Part, an affected agreement means an agreement that prevents the exercise of an action on a cause of action to which section 6A of the Limitation Act 1969 applies, if the agreement occurred— (a) before the commencement of that section, and at the time of the agreement, a limitation period applying to the cause of action had expired, or (b) before the commencement of Part 1B of this Act, and at the time of the agreement, an organisation, that would have been liable under Part 1B for child abuse had the Part been in force, was not incorporated, or (c) before the commencement of Part 1B of this Act, and the agreement is not just and reasonable in the circumstances. (2) For the purposes of this section, a limitation period is taken to have expired even if it were possible at the time to seek the leave of a court to extend the period. 7D Court may set aside affected agreement (1) A person (the applicant) who, because of an affected agreement, is prevented from exercising an action on a cause of action may— (a) commence proceedings on the cause of action in a court with sufficient jurisdiction to hear the cause of action, and (b) apply to the court to set aside the affected agreement. (2) The court may set aside an affected agreement if it is just and reasonable to do so. (3) The court may consider the following in making its decision to set aside the affected agreement— (a) the amount paid to the applicant under the agreement, (b) the bargaining position of the parties to the agreement, (c) the conduct in relation to the agreement of— (i) the parties other than the applicant, or (ii) the legal representatives of the parties other than the applicant, (d) any other matter the court considers relevant. (4) Section 131(1) of the Evidence Act 1995 does not prevent evidence being adduced in proceedings under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the affected agreement relates. 7E Court may also set aside other things (1) If the court decides to set aside an affected agreement under this Part, it may also set aside any of the following that gives effect to the agreement— (a) a contract, deed or other agreement, (b) an order or judgment of the court or of a lower court. (2) However, the court must not set aside the following— (a) a deed of release signed by or on behalf of the applicant in acceptance of an offer under the National Redress Scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer, (b) an agreement to the extent to which— (i) it settled a cross-claim between 2 or more defendants, or (ii) 1 defendant indemnified another, (c) a contract of insurance. (3) In this section— National Redress Scheme means the National Redress Scheme for Institutional Child Sexual Abuse established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 of the Commonwealth. 7F Effect of setting aside affected agreement (1) A court may set aside an affected agreement or anything else under this Part only to the extent that it relates to the applicant. (2) An affected agreement and anything else set aside under this Part is void but only to the extent that it relates to the applicant. (3) An amount paid, including legal costs or disbursements, or other consideration given under the affected agreement— (a) is not recoverable despite the agreement being void, and (b) may be taken into account by a court in determining damages in proceedings for a cause of action to which the affected agreement relates. Part 2 Personal injury damages Division 1 Preliminary 9, 10 (Repealed) 11 Definitions In this Part— injury means personal injury and includes the following— (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person. 11A Application of Part (1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B. (2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (3) A court cannot award damages, or interest on damages, contrary to this Part. (4) In the case of an award of damages to which Part 2A (Special provisions for offenders in custody) applies, this Part applies subject to Part 2A. Division 2 Fixing damages for economic loss 12 Damages for past or future economic loss—maximum for loss of earnings etc (1) This section applies to an award of damages— (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award. (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. 13 Future economic loss—claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. 14 Damages for future economic loss—discount rate (1) If an award of damages is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by adopting the prescribed discount rate. (2) The prescribed discount rate is— (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed—a discount rate of 5%. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. 15 Damages for gratuitous attendant care services: general (1) In this section— attendant care services means any of the following— (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services— (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that— (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)— (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for— (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or (ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. Note— By reason of the operation of section 3B(1)(b), this section does not apply to the determination of 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. Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989. 15A Damages for gratuitous attendant care services: dust-related conditions (1) This section applies to the determination of civil liability for damages for gratuitous attendant care services 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. (2) The amount of damages that may be awarded for gratuitous attendant care services in proceedings referred to in subsection (1) must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. (3) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. (4) In this section, attendant care services and gratuitous attendant care services have the same meanings as they have in section 15. 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section— assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)— (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where— (i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and (ii) the care includes the provision of accommodation to the dependant. dependants, in relation to a claimant, means— (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises— (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that— (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants— (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note— Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may— (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court— (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that)— (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that)— (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the exten