Western Australia: Civil Liability Act 2002 (WA)

Western Australia Civil Liability Act 2002 Western Australia Civil Liability Act 2002 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 3A. Damages excluded from Act 1 4. Varying amounts to reflect award rate changes 1 4A. Limited contracting out 1 5. Act binds Crown 1 Part 1A — Liability for harm caused by the fault of a person Division 1 — Preliminary 5A. Application of Part 1 Division 2 — Duty of care 5B. General principles 1 Division 3 — Causation 5C. General principles 1 5D. Onus of proof 1 Division 4 — Recreational activities 5E. Terms used 1 5F. Term used: obvious risk 1 5G. Application of Division 1 5H. No liability for harm from obvious risks of dangerous recreational activities 1 5I. No liability for recreational activity where risk warning 1 5J. Waiver of contractual duty of care for recreational activities 1 Division 5 — Contributory negligence 5K. Standard of contributory negligence 1 5L. Presumption if person who suffers harm is intoxicated 1 Division 6 — Assumption of risk 5M. Term used: obvious risk 1 5N. Injured person presumed to be aware of obvious risk 1 5O. No duty to warn of obvious risk 1 5P. No liability for harm from inherent risk 1 Division 7 — Professional negligence 5PA. Term used: health professional 1 5PB. Standard of care for health professionals 1 Part 1B — Mental harm 5Q. Terms used 1 5R. Application of Part 1 5S. Mental harm: duty of care 1 5T. Liability for pecuniary loss for consequential mental harm 1 Part 1C — Liability relating to public function 5U. Terms used 1 5V. Application of Part 1 5W. Principles concerning resources, responsibilities etc. of public body or officer 1 5X. Policy defence 1 5Y. Proceedings against public body or officer based on breach of statutory duty 1 5Z. Special protection for road authorities 1 5AA. Exercise of function or decision to exercise does not create duty 1 Part 1CA — Liability relating to emergency medical assistance given to enrolled children 5AAA. Terms used 1 5AAB. Application of this Part 1 5AAC. Protection of staff members 1 5AAD. Exclusion from protection 1 Part 1D — Good samaritans 5AB. Terms used 1 5AC. Application of this Part 1 5AD. Protection of good samaritans 1 5AE. Exclusion from protection 1 Part 1E — Apologies 5AF. Term used: apology 1 5AG. Application of this Part 1 5AH. Effect of apology on liability 1 Part 1F — Proportionate liability 5AI. Terms used 1 5AJ. Application of Part 1 5AJA. Certain concurrent wrongdoers not to have benefit of apportionment 1 5AK. Proportionate liability for apportionable claims 1 5AKA. Duty of defendant to inform plaintiff about concurrent wrongdoers 1 5AL. Contribution not recoverable from defendant 1 5AM. Subsequent actions 1 5AN. Joining non‑party concurrent wrongdoers in action 1 5AO. Part does not prevent other liability or operation of other Act 1 Part 2 — Awards of personal injury damages Division 1 — Preliminary 6. Application of this Part 1 7. Court awards constrained 1 8. Act does not give rise to any cause of action 1 Division 2 — Damages for non‑pecuniary loss (general damages) 9. Restrictions on damages for non‑pecuniary loss (general damages) 1 10. Amount A and Amount C 1 10A. Tariffs for damages for non‑pecuniary loss 1 Division 3 — Fixing damages for pecuniary loss 11. Damages for loss of earnings 1 12. Damages for provision of home care services 1 13. Amount B 1 13A. Restrictions on damages if payments received under CISS 1 Division 4 — Structured settlements 14. Term used: structured settlement 1 15. Consent order for structured settlement 1 Division 5 — Provisional and subsequent damages Subdivision 1 — Preliminary 15AA. Terms used 1 15AB. Dust disease 1 Subdivision 2 — Provisional damages 15AC. Award of provisional damages 1 15AD. Amount of provisional damages 1 15AE. Settlement agreement in initial action 1 15AF. Consequence of settlement in initial action 1 Subdivision 3 — Subsequent damages 15AG. Award of subsequent damages 1 15AH. Court must give effect to terms of settlement agreements 1 15AI. Evidence to apply in subsequent actions 1 15AJ. One award of subsequent damages for each subsequent dust disease 1 15AK. Amount of subsequent damages 1 15AL. Settlement agreement in subsequent action 1 15AM. Consequence of settlement in subsequent action 1 15AN. Costs 1 Subdivision 4 — Transitional provisions 15AO. Transitional provision 1 Part 2A — Child sexual abuse actions Division 1 — Preliminary 15A. Terms used 1 Division 2 — Liability of certain office holders and institutions, and availability of assets 15B. Liability of current office holder in unincorporated institution 1 15C. Assets available for judgments and settlements: office holders 1 15D. Liability of incorporated institution that was unincorporated at time of abuse 1 15E. Assets available for judgments and settlements: institutions 1 15F. Continuity of institutions: institution substantially the same 1 15G. Continuity of institutions: no institution the same or substantially the same 1 15H. Continuity of offices 1 15I. Accrual of certain child sexual abuse causes of action 1 15J. Displacement of Corporations legislation 1 Division 3 — Prior compensation payments 15K. Prior compensation payments taken into account 1 Division 4 — Caps on legal fees 15L. Caps on legal fees 1 Division 5 — Review of Part 2A 15M. Review of Part 1 Part 3 — Advertising legal services relating to personal injury and touting 16. Terms used 1 17. Restriction on advertising legal services relating to personal injury 1 18. Allowed publication 1 19. Prohibition on touting at scene of incidents or at any time 1 20. Prohibition against paying, or seeking payment, for touting 1 21. Consequences if person approved under an Act is convicted under s. 19 or 20 1 Part 4 — Other matters 22. Regulations 1 Notes Compilation table 1 Defined terms Western Australia Civil Liability Act 2002 An Act relating to various aspects of civil liability, to restrict advertising legal services relating to personal injury, to restrict touting, and for related purposes. [Long title inserted: No. 58 of 2003 s. 4.] Part 1 — Preliminary 1. Short title This Act may be cited as the Civil Liability Act 2002 1. 2. Commencement (1) This Act comes into operation on a day fixed by proclamation 1. (2) Different days may be fixed under subsection (1) for different provisions. 3. Terms used In this Act, unless the contrary intention appears — harm means harm of any kind, including the following — (a) personal injury; (b) damage to property; (c) economic loss; personal injury includes — (a) death; and (b) pre‑natal injury; and (c) impairment of a person's physical or mental condition; and (d) disease; personal injury damages means damages that relate to personal injury to a person caused by the fault of another person, but does not include a sum payable under a superannuation scheme or any life or other insurance policy. [Section 3 amended: No. 58 of 2003 s. 5.] 3A. Damages excluded from Act (1) The provisions of this Act specified in the third column of an item in the Table to this subsection do not apply to damages of a class specified in the second column of that item or to claims for, or awards of, such damages. Table Item Damages Provisions that do not apply Damages relating to personal injury caused by — 1. (a) an unlawful intentional act that is done with an intention to cause personal injury to a person, whether or not a particular person; or Parts 1A, 1C, 1CA, 1D, 1E and 2 (other than section 10A). (b) an intentional act the doing of which is a sexual offence as defined in the Evidence Act 1906 section 36A or sexual conduct that is otherwise unlawful. 2. Damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies. Parts 1C, 1E and 2 (other than section 10A and Division 4). 3. Damages to which the Workers Compensation and Injury Management Act 2023 Part 7 Division 2 applies and the class of damages referred to in section 416(a) of that Act. Parts 1A, 1B, 1C, 1D, 1E and 2 (other than section 10A and Divisions 4 and 5). 4. Damages relating to personal injury that resulted from smoking or other use of tobacco products. Parts 1A (other than sections 5A, 5B, 5C and 5D), 1B, 1D, 1E and 2 (other than section 10A and Division 4). 5. Damages under the Civil Aviation (Carriers' Liability) Act 1961 (including the applied provisions as defined in that Act). Parts 1A, 1B, 1C, 1D, 1E, 1F and 2. 6. Damages relating to personal injury that resulted from the inhalation of asbestos or silica. Parts 1A (other than sections 5A, 5B, 5C and 5D), 1B, 1D, 1E and 2 (other than section 10A and Divisions 4 and 5). (2) Regulations may amend the Table to subsection (1) by — (a) adding an item comprising — (i) in the second column — a class of damages; and (ii) in the third column — provisions of this Act; or (b) adding a provision of this Act to the third column of an item. [Section 3A inserted: No. 58 of 2003 s. 6; amended: No. 42 of 2004 s. 174; No. 1 of 2011 s. 4; No. 21 of 2023 s. 625; No. 32 of 2024 s. 4.] 4. Varying amounts to reflect award rate changes (1) This section applies if a provision of this Act requires the amount that is relevant for a particular financial year (in this section called the relevant financial year) to be obtained by varying the corresponding amount for the preceding financial year (in this section called the preceding financial year) according to this section. (2) The amount for the relevant financial year is obtained — (a) by varying the amount for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Labour Price Index (formerly known as the Wage Cost Index), ordinary time hourly rates of pay (excluding bonuses) for Western Australia (in this subsection called the LPI) varied between the last December quarter before the preceding financial year commenced and the last December quarter before the relevant financial year commenced; or (b) if the calculation under paragraph (a) cannot be performed for a financial year because the LPI for a relevant quarter was not published, by varying the amount for the preceding financial year in accordance with the regulations, and, if necessary, rounding the resulting amount off under subsection (3). (3) If the amount resulting under subsection (2)(a) or (b) is not a multiple of $500 it 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). [Section 4 amended: No. 8 of 2009 s. 33.] 4A. Limited contracting out (1) A written agreement signed by the parties to it may contain an express provision by which a provision of Part 1A, 1B, 1C, 1CA, 1D, 1E or 1F is excluded, modified or restricted and this Act does not limit or otherwise affect the operation of that express provision. (2) Subsection (1) applies to any provision of this Act referred to in that subsection even if the provision applies to liability in contract. [Section 4A inserted: No. 58 of 2003 s. 7; amended: No. 1 of 2011 s. 5.] 5. Act binds Crown This Act binds the Crown in right of the State and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 1A — Liability for harm caused by the fault of a person [Heading inserted: No. 58 of 2003 s. 8.] Division 1 — Preliminary [Heading inserted: No. 58 of 2003 s. 8.] 5A. Application of Part (1) Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise. (2) This Part extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action. (3) Divisions 2, 3, 4, 5 and 6 do not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after 1 December 2003 (being the day on which the Civil Liability Amendment Act 2003 section 8, which inserted those Divisions, came into operation). (3a) Division 7 does not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after the day on which the Civil Liability Amendment Act 2004 section 5 comes into operation 1. (4) If in a claim for damages — (a) it cannot be ascertained whether or not the incident out of which personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) In subsection (4) — commencement day means the day referred to in subsection (3) or (3a), as is relevant to the case. [Section 5A inserted: No. 58 of 2003 s. 8; amended: No. 43 of 2004 s. 4.] Division 2 — Duty of care [Heading inserted: No. 58 of 2003 s. 8.] 5B. General principles (1) A person is not liable for harm caused by that person's fault 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. [Section 5B inserted: No. 58 of 2003 s. 8.] Division 3 — Causation [Heading inserted: No. 58 of 2003 s. 8.] 5C. General principles (1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements — (a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability). (2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) — (a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and (b) whether and why the harm should be left to lie where it fell. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault — (a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and (b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor. [Section 5C inserted: No. 58 of 2003 s. 8.] 5D. Onus of proof In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. [Section 5D inserted: No. 58 of 2003 s. 8.] Division 4 — Recreational activities [Heading inserted: No. 58 of 2003 s. 8.] 5E. Terms used In this Division — dangerous recreational activity means a recreational activity that involves a significant risk of harm; inherent risk means a risk of something occurring that cannot be avoided by the exercise of reasonable skill and care; obvious risk has the meaning given by section 5F; 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 for enjoyment, relaxation or leisure 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. [Section 5E inserted: No. 58 of 2003 s. 8.] 5F. Term used: 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. [Section 5F inserted: No. 58 of 2003 s. 8.] 5G. Application of Division (1) This Division applies only in respect of liability for harm resulting from a recreational activity. (2) This Division does not limit the operation of Division 6 in respect of a recreational activity. [Section 5G inserted: No. 58 of 2003 s. 8.] 5H. No liability for harm from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable for harm caused by the defendant's fault suffered by another person (the plaintiff) while the plaintiff engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity. (2) This section applies whether or not the plaintiff was aware of the risk. (3) 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. (4) Subsection (3) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. [Section 5H inserted: No. 58 of 2003 s. 8.] 5I. No liability for recreational activity where risk warning (1) Subject to this section, 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 a child suffers harm, the defendant may rely on a risk warning to a parent of the child if the parent is not an incompetent person — (a) whether or not the child was accompanied by the parent; and (b) whether or not the child was under the control of the parent. (3) If a child suffers harm, the defendant may rely on a risk warning to another person who is not a parent of the child if — (a) the other person is not an incompetent person; and (b) either — (i) the child was accompanied by that other person; or (ii) the child was under the control of that other person. (4) For the purpose of subsections (1), (2) and (3), 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. (5) The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (6) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (7) 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). (8) 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. (9) 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 written law, or a law of the Commonwealth, that establishes specific practices or procedures for the protection of personal safety. (10) 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. (11) 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. (12) 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 an act done or omission made with reckless disregard, with or without consciousness, for the consequences of the act or omission. (13) A defendant is not entitled to rely on a risk warning to an incompetent person. (14) 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 risk 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 that activity. (15) 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. (16) In this section — child means a person who has reached 16 years but is under 18 years of age; incompetent person means a person who is under 18 years of age or who, because of a physical or mental disability, lacks the capacity to understand the risk warning. [Section 5I inserted: No. 58 of 2003 s. 8.] 5J. Waiver of contractual duty of care for recreational activities (1) Despite any written law or other law of the State, a term of a contract for the supply of recreational 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) No written law 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 recreational services that is to the effect that a person to whom recreational 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) 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. (5) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a written law, or a law of the Commonwealth, that establishes specific practices or procedures for the protection of personal safety. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from an act done or omission made with reckless disregard, with or without consciousness, for the consequences of the act or omission. (7) In this section — recreational services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of a recreational activity. [Section 5J inserted: No. 58 of 2003 s. 8.] Division 5 — Contributory negligence [Heading inserted: No. 58 of 2003 s. 8.] 5K. Standard of contributory negligence (1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person 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. [Section 5K inserted: No. 58 of 2003 s. 8.] 5L. Presumption if person who suffers harm is intoxicated (1) This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm. (2) This section does not apply in a case where the court is satisfied that the intoxication was not self‑induced. (3) If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm. (4) In this section — intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired. [Section 5L inserted: No. 58 of 2003 s. 8.] Division 6 — Assumption of risk [Heading inserted: No. 58 of 2003 s. 8.] 5M. Term used: obvious risk In this Division — obvious risk has the meaning given by section 5E. [Section 5M inserted: No. 58 of 2003 s. 8.] 5N. Injured person presumed to be aware of obvious risk (1) In determining liability for damages for harm caused by the fault of a person, the 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 purpose 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. [Section 5N inserted: No. 58 of 2003 s. 8.] 5O. No duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) 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 harm 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. [Section 5O inserted: No. 58 of 2003 s. 8.] 5P. No liability for harm from inherent risk (1) A person (the defendant) is not liable for harm caused by the fault of that person suffered by another person if the harm is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant. (2) This section does not operate to exclude liability in connection with a duty to warn of a risk. [Section 5P inserted: No. 58 of 2003 s. 8.] Division 7 — Professional negligence [Heading inserted: No. 43 of 2004 s. 5.] 5PA. Term used: health professional In this Division — health professional means — (a) a person registered under the Health Practitioner Regulation National Law (Western Australia) in any of the following health professions — (i) Aboriginal and Torres Strait Islander health practice; (ii) Chinese medicine; (iii) chiropractic; (iv) dental; (v) medical; (vi) medical radiation practice; (vii) midwifery; (viia) nursing; (viii) occupational therapy; (ix) optometry; (x) osteopathy; (xa) paramedicine; (xi) pharmacy; (xii) physiotherapy; (xiii) podiatry; (xiv) psychology; or (b) any other person who practises a discipline or profession in the health area that involves the application of a body of learning. [Section 5PA inserted: No. 43 of 2004 s. 5; amended: No. 28 of 2005 Sch. 3 cl. 1; No. 29 of 2005 Sch. 3 cl. 1; No. 30 of 2005 Sch. 3 cl. 1; No. 31 of 2005 Sch. 3 cl. 1; No. 32 of 2005 Sch. 3 cl. 1; No. 33 of 2005 Sch. 3 cl. 1; No. 42 of 2005 Sch. 3 cl. 1; No. 21 of 2006 Sch. 3 cl. 1; No. 50 of 2006 Sch. 3 cl. 2; No. 22 of 2008 Sch. 3 cl. 8; No. 25 of 2008 s. 16; No. 35 of 2010 s. 41; No. 4 of 2018 s. 103(2).] 5PB. Standard of care for health professionals (1) An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice. (2) Subsection (1) does not apply to an act or omission of a health professional in relation to informing a person of a risk of injury or death associated with — (a) the treatment proposed for a patient or a foetus being carried by a pregnant patient; or (b) a procedure proposed to be conducted for the purpose of diagnosing a condition of a patient or a foetus being carried by a pregnant patient. (3) Subsection (1) applies even if another practice that is widely accepted by the health professional's peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something. (4) Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional's position could have acted or omitted to do something in accordance with that practice. (5) A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice. (6) In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant. [Section 5PB inserted: No. 43 of 2004 s. 5.] Part 1B — Mental harm [Heading inserted: No. 58 of 2003 s. 8.] 5Q. Terms used In this Part — consequential mental harm means mental harm that is a consequence of a personal injury of any kind; mental harm means impairment of a person's mental condition; pure mental harm means mental harm other than consequential mental harm. [Section 5Q inserted: No. 58 of 2003 s. 8.] 5R. Application of Part (1) Subject to sections 3A and 4A, this Part applies to any claim for personal injury damages for mental harm unless this section states otherwise. (2) This Part extends to a claim for personal injury damages even if the damages are sought to be recovered in an action for breach of contract or any other action. (3) This Part does not apply unless the personal injury giving rise to the claim for personal injury damages arises out of an incident happening on or after the commencement day. (4) If — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) In this section — commencement day means the day on which the Civil Liability Amendment Act 2003 section 8 comes into operation 1. [Section 5R inserted: No. 58 of 2003 s. 8.] 5S. Mental harm: duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following — (a) whether or not the mental harm was suffered as the result of a sudden shock; (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril; (d) whether or not there was a pre‑existing relationship between the plaintiff and the defendant. (3) For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. [Section 5S inserted: No. 58 of 2003 s. 8.] 5T. Liability for pecuniary loss for consequential mental harm A court cannot make an award of personal injury damages for pecuniary loss for consequential mental harm unless the harm consists of a recognised psychiatric illness. [Section 5T inserted: No. 58 of 2003 s. 8.] Part 1C — Liability relating to public function [Heading inserted: No. 58 of 2003 s. 8.] 5U. Terms used In this Part — policy decision means a decision based substantially on financial, economic, political or social factors or constraints; public body or officer means — (a) the Crown (within the meaning of the Crown Suits Act 1947); or (b) a department of the Public Service established under the Public Sector Management Act 1994 section 35; or (c) an entity specified in column 2 of Schedule 1 to the Public Sector Management Act 1994; or (d) an organisation specified in column 2 of Schedule 2 to the Public Sector Management Act 1994; or (e) a non‑SES organisation within the meaning of that term in the Public Sector Management Act 1994 section 3(1); or (f) a local government, regional local government or regional subsidiary; or (g) a body that is established or continued for a public purpose under a written law; or (h) a body or officer prescribed (or of a class prescribed) by the regulations as a public body or officer to which this Part applies (in respect of all or specified functions); or (i) any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this Part. [Section 5U inserted: No. 58 of 2003 s. 8; amended: No. 26 of 2016 s. 42.] 5V. Application of Part (1) Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise. (2) This Part extends to a claim for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action. (3) This Part does not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after the commencement day. (4) If in a claim for damages — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) In this section — commencement day means the day on which the Civil Liability Amendment Act 2003 section 8 comes into operation 1. [Section 5V inserted: No. 58 of 2003 s. 8.] 5W. Principles concerning resources, responsibilities etc. of public body or officer The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies — (a) the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions; (b) the general allocation of those resources by the public body or officer is not open to challenge; (c) the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate); (d) the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. [Section 5W inserted: No. 58 of 2003 s. 8.] 5X. Policy defence In a claim for damages for harm caused by the fault of a public body or officer arising out of fault in the performance or non‑performance of a public function, a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body or officer in the defendant's position could have made it. [Section 5X inserted: No. 58 of 2003 s. 8.] 5Y. Proceedings against public body or officer based on breach of statutory duty (1) This section applies to proceedings to which this Part applies that are based on an alleged breach of a statutory duty by a public body or officer in connection with the exercise of or a failure to exercise a public function of the body or officer. (2) For the purpose of proceedings to which this section applies, the public body or officer cannot be liable for damages for harm caused by fault in the exercise of, or a failure to exercise, the statutory duty unless the provisions and policy of the enactment in which the duty is created are compatible with the existence of that liability. [Section 5Y inserted: No. 58 of 2003 s. 8.] 5Z. Special protection for road authorities (1) In this section — carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road; road has the meaning given to that term in the Main Roads Act 1930 section 6; roads authority, in relation to a road, means a public body or officer whose functions include carrying out road work on that road. (2) A roads authority is not liable in proceedings to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm. (3) This section does not operate — (a) to create a duty of care in respect of a risk merely because a road authority has actual knowledge of the risk; or (b) to affect any standard of care that would otherwise be applicable in respect of the risk. [Section 5Z inserted: No. 58 of 2003 s. 8.] 5AA. Exercise of function or decision to exercise does not create duty In proceedings to which this Part applies, the fact that a public body or officer exercises or decides to exercise a function does not of itself indicate that the body or officer is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way. [Section 5AA inserted: No. 58 of 2003 s. 8.] Part 1CA — Liability relating to emergency medical assistance given to enrolled children [Heading inserted: No. 1 of 2011 s. 6.] 5AAA. Terms used In this Part — child care service means — (a) an education and care service as defined in the Education and Care Services National Law (Western Australia) section 5(1); or (b) a child care service as defined in the Child Care Services Act 2007 section 4; community kindergarten means a kindergarten registered under the School Education Act 1999 Part 5; emergency medical assistance means medical assistance of a type prescribed by the regulations as assistance to which this Part applies; enrolled child means — (a) a child enrolled at community kindergarten; or (b) a child for whom a child care service is provided; or (c) a student within the meaning given in the School Education Act 1999 section 4; staff member means a natural person who is — (a) employed in the department of the Public Service referred to in the School Education Act 1999 section 228; or (b) employed in a school registered under the School Education Act 1999 section 160; or (c) a supervising officer as defined in the Child Care Services Act 2007 section 3; or (da) a nominated supervisor as defined in the Education and Care Services National Law (Western Australia) section 5(1); or (d) a member of the staff of a child care service; or (e) prescribed (or of a class prescribed) by the regulations as a person to whom this Part applies. [Section 5AAA inserted: No. 1 of 2011 s. 6; amended: No. 11 of 2012 s. 29.] 5AAB. Application of this Part (1) In this section — commencement day means the day on which the Health, Safety and Civil Liability (Children in Schools and Child Care Services) Act 2011 section 6 comes into operation. (2) Subject to sections 3A and 4A, this Part applies to civil liability of any kind unless this section states otherwise. (3) This Part extends to a claim even if the damages are sought to be recovered in an action for breach of contract or any other action. (4) This Part does not apply unless the civil liability giving rise to the claim arises out of an incident happening on or after the commencement day. (5) If in a claim for damages — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (4), to have happened on or after the commencement day. (6) This Part does not limit the protection from liability given by another written law. [Section 5AAB inserted: No. 1 of 2011 s. 6.] 5AAC. Protection of staff members (1) A staff member does not incur any personal civil liability in respect of — (a) an act or omission done or made by the staff member at the scene of an emergency in assisting an enrolled child in apparent need of emergency medical assistance; or (b) advice given by the staff member about assistance to be given to an enrolled child in apparent need of emergency medical assistance, if the act or omission is done or made, or the advice given, in good faith and without recklessness in the course of the staff member's employment as a staff member. (2) This section does not affect the vicarious liability of any person for the acts or omissions of a staff member. [Section 5AAC inserted: No. 1 of 2011 s. 6.] 5AAD. Exclusion from protection The protection from personal civil liability conferred by this Part does not apply if the ability of the staff member to exercise reasonable care and skill, at the relevant time, was significantly impaired by reason of the staff member being intoxicated by alcohol or a drug or other substance capable of intoxicating a person and the intoxication was self‑induced. [Section 5AAD inserted: No. 1 of 2011 s. 6.] Part 1D — Good samaritans [Heading inserted: No. 58 of 2003 s. 8.] 5AB. Terms used In this Part — emergency assistance means — (a) emergency medical assistance; or (b) any other form of assistance to a person whose life or safety is endangered in a situation of emergency; good samaritan means a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance; medical qualifications means — (a) registered under the Health Practitioner Regulation National Law (Western Australia) in a health profession; or (b) licensed, registered or authorised under a written law to practise in some field of health care; or (c) qualifications as an ambulance officer; medically qualified good samaritan means a natural person with medical qualifications who, acting without expectation of payment or other consideration, gives advice by any means of communicating at a distance, including by telephone, fax, email and radio, about the treatment of a person who is apparently in need of emergency assistance. [Section 5AB inserted: No. 58 of 2003 s. 8; amended: No. 22 of 2008 s. 162; No. 35 of 2010 s. 42; No. 4 of 2018 s. 103(3).] 5AC. Application of this Part (1) Subject to sections 3A and 4A, this Part applies to civil liability of any kind unless this section states otherwise. (2) This Part extends to a claim even if the damages are sought to be recovered in an action for breach of contract or any other action. (3) This Part does not apply unless the civil liability giving rise to the claim arises out of an incident happening on or after the commencement day. (4) If in a claim for damages — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) This Part does not limit the protection from liability given by another written law. (6) In this section — commencement day means the day on which the Civil Liability Amendment Act 2003 section 8 comes into operation 1. [Section 5AC inserted: No. 58 of 2003 s. 8.] 5AD. Protection of good samaritans (1) A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance. (2) A medically qualified good samaritan does not incur any personal civil liability for advice given in good faith and without recklessness about the assistance to be given to a person in apparent need of emergency assistance. (3) This section does not affect the vicarious liability of any person for the acts or omissions or advice of the good samaritan or medically qualified good samaritan. [Section 5AD inserted: No. 58 of 2003 s. 8.] 5AE. Exclusion from protection The protection from personal civil liability conferred by this Part does not apply if the ability of the good samaritan or medically qualified good samaritan to exercise reasonable care and skill, at the relevant time, was significantly impaired by reason of the good samaritan or medically qualified good samaritan being intoxicated by alcohol or a drug or other substance capable of intoxicating a person and the intoxication was self‑induced. [Section 5AE inserted: No. 58 of 2003 s. 8.] Part 1E — Apologies [Heading inserted: No. 58 of 2003 s. 8.] 5AF. Term used: apology In this Part — apology means an expression of sorrow, regret or sympathy by a person that does not contain an acknowledgment of fault by that person. [Section 5AF inserted: No. 58 of 2003 s. 8.] 5AG. Application of this Part (1) Subject to sections 3A and 4A, this Part applies to civil liability of any kind unless this section states otherwise. (2) This Part extends to a claim even if the damages are sought to be recovered in an action for breach of contract or any other action. (3) This Part does not apply unless the civil liability giving rise to the claim arises out of an incident happening on or after the commencement day. (4) If in a claim for damages — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) In this section — commencement day means the day on which the Civil Liability Amendment Act 2003 section 8 comes into operation 1. [Section 5AG inserted: No. 58 of 2003 s. 8.] 5AH. Effect of apology on liability (1) An apology made by or on behalf of a person in connection with any incident giving rise to a claim for damages — (a) does not constitute an express or implied admission of fault or liability by the person in connection with that incident; and (b) is not relevant to the determination of fault or liability in connection with that incident. (2) Evidence of an apology made by or on behalf of a person in connection with any incident alleged to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in connection with that incident. [Section 5AH inserted: No. 58 of 2003 s. 8.] Part 1F — Proportionate liability [Heading inserted: No. 58 of 2003 s. 9.] 5AI. Terms used In this Part — apportionable claim means — (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury); or (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 2010 based on misleading or deceptive conduct; concurrent wrongdoer, in relation to a claim, means a person who is one of 2 or more persons whose act or omission caused, independently of each other or jointly, the damage or loss that is the subject of the claim. [Section 5AI inserted: No. 58 of 2003 s. 9; amended: No. 43 of 2004 s. 6; No. 58 of 2010 s. 193.] 5AJ. Application of Part (1) For the purpose of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. (2) This Part does not apply — (a) to a claim for damages of a class that is excluded from the operation of this Part by section 3A; or (b) to the extent that its operation is excluded, modified or restricted in accordance with section 4A. (3) This Part applies only to causes of action that accrue after the commencement of the Civil Liability Amendment Act 2003 section 9 1. (4) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). [Section 5AJ inserted: No. 58 of 2003 s. 9; amended: No. 43 of 2004 s. 7.] 5AJA. Certain concurrent wrongdoers not to have benefit of apportionment (1) Nothing in this Part operates to limit the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in proceedings involving an apportionable claim if — (a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or (b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim; or (c) the civil liability of the concurrent wrongdoer was otherwise of a kind excluded from the operation of this Part by section 3A. (2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part. [Section 5AJA inserted: No. 43 of 2004 s. 8.] 5AK. Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim — (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. (2) If proceedings involve both an apportionable claim and a claim that is not an apportionable claim — (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings — (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and (b) the court is to have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise. [Section 5AK inserted: No. 58 of 2003 s. 9.] 5AKA. Duty of defendant to inform plaintiff about concurrent wrongdoers (1) If — (a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer in relation to the claim; and (b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about — (i) the identity of the other person; and (ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim; and (c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim, the court hearing the proceedings may order that the defendant pay all or any of those costs to the plaintiff. (2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise. [Section 5AKA inserted: No. 43 of 2004 s. 9.] 5AL. Contribution not recoverable from defendant (1) A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim — (a) cannot be required to contribute to the damages or contribution recovered from another concurrent wrongdoer in respect of an apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and (b) cannot be required to indemnify any such wrongdoer. (2) Subsection (1) does not affect an agreement by a defendant to contribute to the damages recoverable from or to indemnify another concurrent wrongdoer in relation to an apportionable claim. [Section 5AL inserted: No. 58 of 2003 s. 9; amended: No. 43 of 2004 s. 10.] 5AM. Subsequent actions (1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. (2) In any proceedings in respect of any action referred to in subsection (1) the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff. [Section 5AM inserted: No. 58 of 2003 s. 9.] 5AN. Joining non‑party concurrent wrongdoers in action (1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim. (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim. [Section 5AN inserted: No. 58 of 2003 s. 9.] 5AO. Part does not prevent other liability or operation of other Act Nothing in this Part — (a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or (b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or (c) affects the operation of any Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim. [Section 5AO inserted: No. 58 of 2003 s. 9.] Part 2 — Awards of personal injury damages [Heading inserted: No. 58 of 2003 s. 10.] Division 1 — Preliminary 6. Application of this Part (1) Subject to section 3A, this Part applies to the awarding of personal injury damages unless this section states otherwise. (2) This Part extends to an award of personal injury damages even if the damages are sought to be recovered in an action for breach of contract or any other action. [(3) deleted] (4) This Part applies only if the personal injury arises out of an incident happening after the commencement of this Part. (5) If — (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened after the commencement of this Part; and (b) the symptoms of the injury first appeared after the commencement of this Part, the incident is to be taken, for the purpose of subsection (4), to have happened after the commencement of this Part. [Section 6 amended: No. 58 of 2003 s. 11.] 7. Court awards constrained A court cannot award damages contrary to Division 2 or 3. 8. Act does not give rise to any cause of action This Act, other than Part 2A, does not create or confer any cause of civil action for the recovery of damages in respect of an injury or death caused by the fault of a person. [Section 8 amended: No. 3 of 2018 s. 4.] Division 2 — Damages for non‑pecuniary loss (general damages) [Heading inserted: No. 58 of 2003 s. 12.] 9. Restrictions on damages for non‑pecuniary loss (general damages) (1) If the amount of non‑pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non‑pecuniary loss. (2) If the amount of non‑pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A. (3) If the amount of non‑pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows — (4) In this section — Amount A has the meaning given by section 10; Amount C has the meaning given by section 10; non‑pecuniary loss means — (a) pain and suffering; and (b) loss of amenities of life; and (c) loss of enjoyment of life; and (d) curtailment of expectation of life; and (e) bodily or mental harm. 10. Amount A and Amount C (1) For the financial year ending on 30 June 2003 — (a) Amount A is $12 000; and (b) Amount C is $36 500. (2) For any other financial year — (a) Amount A is obtained by varying Amount A for the preceding financial year according to section 4; and (b) Amount C is obtained by varying Amount C for the preceding financial year according to section 4. (3) On or before each 1 July after this section commences, the Minister is to publish a notice in the Gazette specifying the amounts that are Amount A and Amount C for the financial year commencing on that 1 July. (4) Publication under subsection (3) 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 C for the year concerned. 10A. Tariffs for damages for non‑pecuniary loss (1) In determining damages for non‑pecuniary 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‑pecuniary loss in those earlier decisions. (3) This section does not alter the rules for the determination of other damages. [Section 10A inserted: No. 58 of 2003 s. 13.] Division 3 — Fixing damages for pecuniary loss 11. Damages for loss of earnings (1) In assessing damages for loss of earnings, including in an action under the Fatal Accidents Act 1959, the court is to disregard earnings lost to the extent that they would have accrued at a rate of more than 3 times the average weekly earnings at the date of the award. (2) In subsection (1) — loss of earnings means — (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or (b) future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity. (3) For the purpose of this section, the average weekly earnings at the date of the award is — (a) the amount estimated by the Australian Statistician as the average weekly total earnings of full‑time adult employees in Western Australia for the quarter ending most recently 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 ceases to make the estimate of the amount referred to in paragraph (a), the amount fixed by, or determined in accordance with, the regulations. 12. Damages for provision of home care services (1) This section deals with the awarding of damages for gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is sought by a member of the same household or family as the person. (2) No damages are to be awarded for the services if the services would have been, or would be, provided to the person even if the person had not suffered the personal injury. (3) If the amount of damages that could, if this subsection did not apply, be awarded under subsection (5) or (7) is Amount B or less, no damages are to be awarded for the services. (4) In subsection (3) — Amount B has the meaning given by section 13. (5) If the services are provided or to be provided for not less than 40 hours per week, the amount of damages awarded for them is not to exceed the amount calculated on a weekly basis at the rate of — (a) the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter; or (b) if the Australian Statistician ceases to make the estimate referred to in paragraph (a), the weekly amount fixed by, or determined in accordance with, the regulations. (6) In subsection (5)(a) — relevant quarter means — (a) the quarter in which the services were provided; or (b) if at the date of the award an estimate as referred to in subsection (5)(a) is not available to the court for that quarter or the services are yet to be provided, the most recent quarter for which such an estimate is available to the court at the date of the award. (7) If the services are provided or to be provided for less than 40 hours per week, the amount of damages awarded for them is not to exceed the amount calculated on an hourly basis at an hourly rate that is one‑fortieth of the weekly rate that would be applicable under subsection (5) if the services were provided or to be provided for not less than 40 hours per week. 13. Amount B (1) Amount B for the financial year ending on 30 June 2003 is $5 000. (2) For any other financial year, Amou