Bills Digest No. 170 2004–05
Trade Practices Amendment (Personal Injury and Death)
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Practices Amendment (Personal Injury and Death) Bill
House: House of Representatives
28 days after Royal
The purpose of this Bill is to
amend the Trade Practices Act 1974 (TPA) to prevent
individuals recovering damages for personal injury and death where
there has been a contravention of Part V Division 1 of the TPA.
In 2002, the Federal, State
and Territory Governments put in place a series of measures to
solve the public liability insurance crisis. The review of the law
of negligence, which was announced by the Government in May 2002,
was one such measure.(1) The final report of the
review(2), in this digest referred to as the Ipp Report,
was released in September 2002.
The amendments contained within the Bill give effect to
Recommendation 19 of the Ipp Report. Recommendation 19 states
should be amended to prevent individuals bringing action for
damages for personal injury and death under Part V Div I.
Public liability insurance has been described by Trowbridge
Consulting as insurance for claims by third parties (the public)
for personal injury or property damage caused by or attributable to
the negligence of the insured .(3)
The crisis in public liability insurance reached its height in
2002-2003. The ACCC s most recent report on insurance pricing notes
that average insurance premiums were stable between 1997 and 1999
at around $620 and they then increased substantially between 1999
and 2003. In 2003 premiums were on average $1366.(4)
This rapid increase is illustrated in the following
In March 2002 in a report to the Government, the Trowbridge
Consulting Group noted that the insurance crisis was having the
most significant impact on community events, sporting events,
tourism and leisure operations, the retail industry and local
non-government community groups that operate under the umbrella of
local government.(6) The report states that these groups
were finding it particularly difficult to obtain affordable public
liability insurance.(7) Significant anecdotal evidence
indicates that the operation of community groups and recreational
activities across the country were under threat of closure or had
in fact closed as a result of the insurance crisis.(8)
Submissions to the Senate Economics References Committee (SERC)
which was inquiring into the insurance crisis argued that such
closures would have significant detrimental social
consequences.(9) The SERC also noted that the crisis was
impacting negatively on small business.(10)
Due to the lack of accurate statistics at the time of the
crisis, it was difficult to gauge its true cause however a number
of factors were identified as contributing to it.
The collapse of HIH insurance in 2001(11), terrorist
bombings on 11 September 2001(12) and a poor investment
environment were identified as factors leading to the
It was also argued that there was a clear link between the
insurance crisis and personal injury laws. For example, the
Assistant Treasurer, Senator Helen Coonan argued that:
There is a
widely held view that the current problems in the insurance market
are due in large part to the operation of the legal system. It is
clear that the broader community is dissatisfied with the seemingly
random nature of court awards. There is also a strong perception
that an increasing culture of blame has emerged within our society.
This has led individuals to seek redress through the legal system
where in similar circumstances in the past, the individual would
have been more prepared to assume responsibility for the
consequences of their own actions.(14)
Insurance analysts viewed the crisis as being part of the
cyclical nature of the insurance market. For example, in March 2002
Trowbridge Consulting described the insurance market in the
Insurance markets are renowned for their cyclical
nature, with extended periods (say three to five years) of stable
or reducing premiums, followed by a shorter period (usually two or
three years) of rapidly increasing premiums .(15)
In their view the highly priced insurance premiums during the
insurance crisis formed part of the cyclical nature of insurance
Although Trowbridge Consulting was of the opinion that the high
insurance premiums formed part of the insurance cycle they went on
to argue that intervention was required if more affordable premiums
were to become available in the short term. In their report to the
March meeting of Commonwealth, State and Territory insurance
Ministers, Trowbridge Consulting argued that:
Occasionally, however, the market cycles are so
severe that insurance becomes unavailable to some customers, or
only available at prices that the customers regard as unaffordable
or unjustified. We have such a situation now .(16)
phenomenon can be regarded as the peak (or trough) of an insurance
market cycle, it is nevertheless to persist for another year or two
at least unless there is some external stimulus to or intervention
in the market.(17)
In response to the crisis,
the Ipp review of negligence law was commissioned. When
commissioned, the Ipp review received widespread support from all
Governments on the basis that it was imperative that all
Governments considered it imperative that any immediate response to
the perceived crisis in liability insurance was required.
The Ipp review was asked to
examine personal injury law and to suggest reforms to the law which
would have the effect of decreasing the size and frequency of
damages for personal injury. The review s terms of reference stated
desirable to examine a method for the reform of the common law with
the objective of limiting liability and quantum of damages arising
from personal injury and death.(18)
was clearly aimed at easing the pressure on public liability
insurance premiums by decreasing injured persons access to
above, the review was announced in May 2002 and the final report
was released in September 2002. It would appear that the time taken
to consider the issues was extremely short. The outcomes of the
negligence review were drawn together in the Ipp Report. The Ipp
Report recommended significant changes to the law of negligence in
Australia. In particular the Ipp Report suggested that the rules
relating to standard of care, causation and remoteness of damage
should be amended, the effect being to make it more difficult to
establish negligence. The report also recommended that rules
relating to damages awards needed to be modified, with the
modifications including thresholds and caps on damages where
negligence had been established.
Many of the Ipp Report s
recommendations have been implemented by the States and
Territories, who have legislative responsibility for negligence
laws. When implementing the Ipp Report s recommendations, the
Premier of New South Wales the Hon Bob Carr, reflected the feelings
of many of the States and Territories when he stated that:
range of community groups, charities and organisations from across
NSW including Coffs Harbour s Big Banana, the Cobar pool and the
NSW Farmers Association have endorsed the State Government s public
liability reforms ..
will reinstate personal responsibility, reduce the culture of blame
and avoid the Americanisation of the NSW Legal system.
mean we can all continue to enjoy the simple pleasures such as
swimming at the beach and community shows and
The uncertainty with respect to whether the negligence law
review has been an appropriate response to the issue was reflected
in an article published in the Australian Bar Review, authored by
the chair of the negligence review, Justice Ipp, who wrote
There is no
conclusive evidence that the state of the law of negligence bears
any responsibility for this situation [the insurance crisis]. But
the fact is that insurance companies are not prepared to provide
the necessary insurance (or are only prepared to provide it at
unaffordable rates), because of the unpredictability of the law,
the ease with which plaintiffs succeed and the generosity of courts
in awarding damages. There is evidence to suggest that the
insurance crisis is at least partly attributable to the conduct of
certain insurance companies but that is not to say that the state
of the law of negligence has not contributed to the current state
In a recent speech the Justice of the High Court, Michael Kirby
argued for balance in personal injury law stating that:
We have to be very careful in pushing the notions
of personal responsibility forward, in court decisions and
legislation. We have to beware that we do not remove entirely the
role of the common law as a standard setter for carefulness and
accident prevention in our society ..
Whilst in Australia we roll back the entitlements
of those who suffer damage, in the name of personal responsibility
we have to be careful that we do not reject just claims and reduce
unfairly sharing of risks in cases where things go seriously
There has also been significant media attention which has
focused on some of the negative aspects of the law reforms. Some
newspaper articles have suggested that there should be a more
principled approach to tort reform noting that the reforms are
inconsistent with other areas of personal injury law such as
workers compensation law and have not been implemented uniformly
among the states and territories and.(21)
In July 2002, Senator Ian
Campbell, the Parliamentary Secretary to the Treasurer, asked the
ACCC to monitor the costs and premiums in the public liability and
professional indemnity sectors of the insurance market on a six
monthly basis. The ACCC was in particular asked to monitor the
impact of insurance premiums resulting from measures taken by
governments to reduce and contain legal and claims
costs.(22) The ACCC has now released the fifth of its
price monitoring reports. The report reveals that the insurance
crisis has abated.
The ACCC report noted that
between the year ending 31 December 2003 and the half year ending
30 June 2004:
average public liability premiums decreased by 15 per cent
the average size of claims settled decreased by 11 per cent,
most insurers experienced a fall in the frequency of
In relation to a fall in the frequency of claims,
most of the insurers surveyed attributed this fall to an increase
in the levels of the excess on insurance policies and a change in
the portfolio mix. Only one insurer surveyed suggested that the law
reforms may be acting to remove small claims and hence reduce claim
The ACCC price monitoring report did not contain
a discussion regarding whether insurers considered that the fall in
the size of claims and insurance premiums was attributable to the
In a recent article in the Australian Financial
Review, Alan Mason, who is the executive director of the Insurance
Council of Australia, wrote that But we can say with confidence
that tort reform has had a positive effect on the market. Price
increases have moderated and availability has improved.
In relation to future insurance premium pricing,
the ACCC s price monitoring report noted that the insurers made the
In the short term, the majority of insurers surveyed expected
tort law reforms to have some impact on costs and
Most insurers expected reforms to have an impact on
claims costs and premiums in the future although they considered it
was too early to tell the extent to which reforms may act to reduce
claims costs, and(25)
Some insurers were concerned that the success of the reforms
would depend on courts attitudes when awarding damages and whether
plaintiff lawyers would find ways of circumventing the
The amendments in the Bill
relate to Part V Division 1 of the TPA.
Part V Division 1 of the
TPA contains key consumer protection measures, the most commonly
used ones being those that deal with misleading and deceptive
conduct(27) and false and misleading
representations.(28) Examples of other provisions in
Part V Division 1 of the TPA include those provisions that deal
with bait advertising,(29) harassment and
coercion(30) and pyramid selling.(31) Part V
Division 1 does not contain those provisions that regulate the
supply of defective products.
Where provisions in Part V
Division 1 of the Act are breached, a person may recover damages
for any loss they have suffered as a result of a contravention of
the provision.(32) Damages may be for purely economic
loss (such as damage to property) or may be to compensate a person
for personal injuries or death brought about by a breach of the
provisions. In addition, consumers may seek injunctive
relief,(33) non-punitive orders,(34) punitive
orders,(35) and remedial orders.(36)
The Australian Competition
and Consumer Commission (ACCC) may take legal proceedings (referred
to in the legislation as representative actions ) on behalf of a
person who has suffered loss, where any of the provisions in Part V
Division 1 are breached.(37)
Criminal proceedings may
also be brought against persons who have breached any of the
requirements (apart from section 52 misleading and deceptive
conduct) in Part V Division 1 of the Act. A contravention of
section 52 is not a criminal offence.
Part V Division 1 of the
TPA is also replicated by all the States and Territories in their
own consumer protection legislation.
As noted above, this Bill
gives effect to Recommendation 19 of the Ipp Report. This is the
second attempt by the government to legislate for this change. The
first attempt was in the Trade Practices (Personal Injury and
Death) Bill 2003 (2003 Bill) which was introduced into Parliament
in 2003. Debate on the 2003 Bill ended in a deadlock after the
Australian Labor Party (ALP) and the Australian Democrats
(Democrats) proposed amendments to the Bill and these amendments
were rejected by the Government. The 2004 election was called and
the 2003 Bill lapsed. As a result the Trade Practices (Personal
Injury and Death) Bill 2004 (2004 Bill) was introduced into the
House of Representatives.
The 2004 Bill proposes that
the TPA be amended so that individuals will not be able to recover
damages for personal injury and death brought about by conduct in
breach of Part V Division 1 of the Act. The 2004 Bill also proposes
to remove the ACCC s powers to bring actions on behalf of
individuals to recover damages for personal injury and death.
Under the amendments
proposed in the Bill, an individual will still be able to recover
damages for economic loss suffered as a result of conduct that
breaches Part V Division 1 of the Act. Similarly the ACCC will be
able to bring representative actions on behalf of individuals to
recover damages for economic loss.
Criminal proceedings may
still be brought if a person suffers personal injury or dies as a
result of conduct in breach of Part V Division 1 of the TPA. Of
course, criminal proceedings will not be able to be brought where
there is a contravention of section 52, as it is not a criminal
provision. In addition, a court may issue an injunction, or make
punitive or non-punitive orders where the provisions have been
breached and this leads to personal injury or death.
The 2004 Bill is slightly
different to the 2003 Bill. The amendments in the 2004 Bill provide
an exemption for smoking and tobacco product cases. Therefore where
a person suffers personal injury or dies as a result of smoking or
using tobacco products, they will continue to be able to take legal
proceedings under Part V Division 1 of the TPA. Note however that
this cause of action must be brought within three years from the
date that the illness/injury was discovered. Similarly, the ACCC
will continue to have the power to bring representative actions in
smoking and tobacco cases.
The Ipp Report has argued
that Part V Division 1 of the TPA must be amended to prevent
individuals bringing actions for personal injury and death under
this part of the Act. The report argued that this change is
necessary so that one of the key objectives of the negligence
review (that is to limit liability and quantum of damages pay
outs), is not undermined by plaintiffs relying on the TPA to
recover damages where damages could not be recovered under the law
Report acknowledges that plaintiffs have rarely relied upon Part V
Division 1(38) to recover damages for personal injury or
death. The Ipp Report suggests that once its recommendations which
relate to the laws of negligence have been implemented and it
becomes more difficult to recover damages in negligence, Part V
Division 1 of the Act may be used as an alternative way to recover
damages for personal injury and death.(39) To illustrate
this point, the report cited the example of incorrect advice from
architects and engineers leading to the collapse of a structure
with the result that a bystander is killed or injured, as being a
possible circumstance where a cause of action could be brought
under Part V Division 1 of the TPA.(40)
Report argued that it is not appropriate to recover damages for
personal injury and death under Part V Division 1 of the Act as
fault is not an element in the provisions in this part of the Act.
In relation to section 52 the report stated that:
however, the plaintiff can succeed merely by proving that the
statement was misleading or deceptive, even if the defendant made
the statement with the utmost care and with complete
suggested that a party should have to prove fault on the part of
the defendant before being able to receive compensation.
also argued that when Parliament enacted Part V Division 1, it did
not envisage that plaintiffs would institute proceedings, under
that part, to recover damages for personal injury or
death.(42) Therefore recommendation 19 of the Ipp Report
would not alter the policy objective of Part V Division 1 of the
As noted above, the Trade
Practices (Personal Injury and Death) Bill 2003 was extensively
debated in the Senate in late 2003 and early in 2004. The debate
ended in a deadlock after the ALP and the Democrats proposed
amendments to the Bill and these amendments were rejected by the
During the debate, the ALP
and the Democrats put forward a number of arguments that they
considered were important to consider in weighing the merits of the
Labor argued that it was
important to maintain the protections contained within Part V
Division 1 of the TPA. Senator Conroy stated that:
the TPA.. has encouraged companies to put an
emphasis on consumer safety. In Labor s view, the complete removal
of this incentive as proposed in the bill runs the risk of
undermining the high standard of behaviour that consumers have come
to expect (43)
The ALP questioned whether
retaining the protections in Part V Division 1 would undermine tort
The government has argued that the toughening of
negligence laws by that states will encourage plaintiffs to explore
using the Trade Practices Act. Despite this claim, no evidence was
submitted to the committee indicting that the number of personal
injury claims being instituted under the TPA has increased since
the state reforms were enacted. Given that some of these reforms,
such as the Civil Liability Act in New South Wales have now been in
operation since June 2002, that is, over a year now-any trend
towards the increased use of the TPA should have become evidence by
This position was supported
by the Australian Democrats. Senator Ridgeway argued that the bill
was a speculative response to the insurance crisis
In fact, the Trade Practices Act has had no impact
on premium pricing in the past, and we are only debating this bill
today because of assumptions about the future(45)
The ALP considered that the amendments in the Trade Practices
Amendment (Personal Injury and Death) Bill 2003 were unnecessarily
broad. The ALP proposed alternative amendments. These amendments
would bring the damages regime for contraventions of Part V
Division 1 of the TPA into line with the damages regime that
applies in cases of negligence. In particular, the ALP proposed
that the recent reforms to the damages regime which had been
carried out by the Sates and Territories as part of the tort law
reforms should be applied to actions under Part V Division 1 of the
TPA. This, Labor suggested, would stop forum shopping by potential
litigants and would preserve the rights of consumers.
In the course of debate on the Bill, Senator Conroy stated the
In Labor s view, the key problem is that personal
injury damages are capped under state and territory law but not
under the TPA. If forum shopping is to emerge at some future stage
this will be the key driver. In our view the danger can be
addressed by pursuing an option ..that damages for personal injury
as a result of a breach of part V division 1 should be aligned with
those available unde the relevant state or territory civil
At the time of the debate,
the Trade Practices Amendment (Personal Injuries and Death) Act
2004 (TP Act 2004) had not been introduced into Parliament.
However following its introduction it was clear that the ALP s
proposed solution was broadly similar to the changes proposed in
this subsequent TP Act 2004 for calculating damages under other
parts of the TPA. [See discussion below for explanation of the
Trade Practices Amendment (Personal Injuries and Death) Act
The Government reiterated
many of the points made in the Ipp Report, in the course of the
debate on the 2003 Bill and made some additional arguments
highlighting what they saw as the imperativeness in implementing
During the course of the
debate the Government argued that the TPA was a real avenue for
personal injury claimants to use to recover damages. Senator Coonan
The Trade Practice Act, on my understanding is
pleaded frequently in cases involving personal injuries. However
according to the Law Council, between 1989 and 2002 there were some
nine reported cases where a personal injuries claim was decided on
the basis of misleading and deceptive conduct.(47)
Implicit in the Government
s argument is that even though the TPA has not been used frequently
in the past, as a result of tort law reforms making access to
negligence claims more difficult, Part V Division 1 could be used
more frequently, thereby undermining the effects of the tort law
reforms and placing further upward pressure on insurance
The Government made the
point that the position held by the ALP at the Federal level was
inconsistent with what had been requested and agreed to by the
state and territory Labor governments as a necessary and essential
underpinning to the reforms they have put in place.
The reforms in the Bill
were also linked to the medical indemnity crisis by the Government.
Senator Coonan argued that
As well as providing a range of subsidies and
other assistance directly to doctors, tort law reform is seen as a
key part of an integrated solution to the very complex problem of
The Government therefore pointed out that if these amendments
were not supported and tort law reforms were undermined, this could
have an adverse effect upon the medical indemnity crisis.
The Trace Practices Amendment (Personal Injuries and Death)
Act (No. 2) 2004 (2004 Act) (note, not to be confused with the
Bill), inserted a new Part VIB into the TPA. The new Part VIB sets
down principles for calculating damages for personal injury and
death where there has been a contravention of parts of the TPA,
other than Part V Division 1, (such as Part VA defective
The provisions in the new Part VIB are an Ipp Report
recommendation. The Ipp Report recommended that where provisions in
the TPA, other that Part V Division 1, are breached and this leads
to personal injury or death, damages should be calculated applying
the same principles that the Ipp Report recommended should be used
for calculating damages in negligence cases.(50) The
provisions in Part VIB set out those principles for calculating
damages. Further information regarding the provisions in the 2004
Act can be obtained from the digest on the Trade Practices
Amendment (Personal Injuries and Death) Bill
As noted above, Senator
Coonan argued that the changes proposed in the Bill were requested
and supported by the states and territories. The states and
territories have provisions in their legislation that mirror Part V
Division 1 of the TPA. To date, only three jurisdictions have
amended their legislation to mirror the changes proposed in this
The amendments to the TPA
are contained within Schedule 1.
The main amendment is
item 2of the Bill which inserts a new
sub-section 82(1AAA) into the TPA which states that a
person cannot recover damages for a contravention of Part V
Division 1 where the loss or damage results from death or personal
injury. Item 2 also inserts a new sub-section 82 (1AAB) which
implements the smoking and tobacco products exemption. Item
3 defines smoking and tobacco products.
Sub-sections 87(1) and (1A)
of the TPA give the court power to make remedial orders for conduct
covered by several parts of the TPA including Part V, Consumer
Protection. Sub-section 87(1B) gives the ACCC power to bring
representative actions on behalf of individuals who have suffered
loss or damage as a result of conduct in contravention of several
parts of the TPA including Part V.
amend sub-sections 87(1) and (1A) and inserts proposed subsection
87(1AB) into the TPA to ensure that individuals cannot commence
proceedings and the ACCC cannot bring representative actions to
recover damages for loss due to personal injury or death under
section 87 of the Act.
The amendments in this Bill
implement Recommendation 19 of the negligence review, so that
individuals will be prevented from recovering damages for personal
injury and death brought about by a breach of Part V Division 1 of
These amendments reduce
consumer rights under the TPA. These amendments do however close a
loophole in the law that has the potential to undermine the Ipp
Report s recommendations and hence the Government s policy response
to the insurance crisis.
The insurance crisis has
abated and some may therefore argue that these amendments are
unnecessary. Those who support these amendments suggest however
that premium pricing may again increase if the reforms to
negligence laws are undermined by claimants relying on other
avenues of legal redress such as Part V Division 1 of the TPA.
The Bill is also a reminder
of the broader policy issues at play and in particular whether the
review of the laws of negligence has achieved the correct balance
between premium affordability and access to compensation for those
who are injured. This question is particularly pressing given the
fact that the review that led to the overhaul of the countries
personal injury laws was completed within such a very short period
of time and was a reaction to a crisis in the insurance market.
Liability Meeting Makes Significant Progress , Media
Release, Senator the Hon Helen Coonan, Minister for Revenue
and Assistant Treasurer, 30 May 2002.
Review of the law of negligence final report (Ipp Report),
September 2002, [http://revofneg.treasury.gov.au/content/review2.asp].
Trowbridge Consulting, Public Liability Insurance; Analysis
for Meeting of Ministers 27 March 2002, 26 March
2002, p. i.
Australian Competition and Consumer Commission, Public
liability and professional indemnity insurance; fourth
monitoring report, January 2005, p.
Table is from the Australian Competition and Consumer
Commission, Public liability and professional indemnity
insurance; fourth monitoring report, January
2005, p. 15.
Trowbridge Consulting, op cit., 26 March 2002, p. 30.
ibid., p. 30.
Senate Economics References Committee, A review of public
liability and professional indemnity insurance , October 2002, pp.
ibid., pp. 10 13.
ibid., pp. 13 14.
ibid., p. 31.
ibid., pp. 29 30.
ibid., pp. 30 31.
Senator the Hon Helen Coonan, Insurance Premiums and Law Reform
Affordable Cover and the Role of Government , The University of
New South Wales Law Journal, vol 25, no 3 2002.
Trowbridge Consulting, op cit, 26 March 2002, p. 4.
ibid., p. 4.
ibid., p. i.
Review of the Law of Negligence Final Report, Canberra,
Strong community response to public liability reforms , News
Release, Premier of New South Wales Australia, September 4
Justice David Ipp, Negligence Where lies the future?,
Australian Bar Review (2003) 23 p. 159.
Robert Pelletier, Tort reform needs injection of fairness ,
Australian Financial Review, 4 February 2005, p. 60, Alan
Mason, Vital to balance premiums and payouts , Australian
Financial Review, 29 October 2004, p.57.
Australian Competition and Consumer Commission website,
Public liability and professional indemnity insurance fourth
18 February 2005.
Alan Mason, op cit.
Australian Competition and Consumer Commission, op cit., p.
ibid., p. 40.
ibid., p. 40.
Section 52 of the Trade Practices Act 1974 (TPA).
Section 53 of the TPA.
Section 56 of the TPA.
Section 60 of the TPA.
Section 61 of the TPA.
Section 82 of the TPA.
Section 80 of the TPA.
Section 86C of the TPA.
Section 86D of the TPA.
Section 87 of the TPA.
Section 87 of the TPA.
When making this assertion the report made particular reference
to section 52 of the TPA.
Ipp Report, p. 74.
ibid., p 77.
ibid., p. 76.
ibid., p. 73.
Senator Conroy, Senate Hansard, 15 October 2003, p.
Senator Conroy, Senate Hansard, 15 October 2003, p.
Senator Ridgeway, Senate Hansard, 15 October 2003 p.
Senator Conroy, Senate Hansard, 15 October 2003, p.
Senator Coonan, Senate Hansard, 1 December 2002, p.
Senator Coonan, Senate Hansard, 1 December 2003, p.
Senator Coonan, Senate Hansard, 1 December 2003, p.
Explanatory Memorandum, Trade Practices (Personal Injury and
Death) Bill 2004, p. 13.
Dudley Susan, Digest No 114 Trade Practices (Personal
Injuries and Death) Bill (No. 2) 2004 Bills,
The jurisdictions which have amended their legislation are: New
South Wales in the Civil Liability Amendment (Personal
Responsibility) Act 2002, Queensland in the Tourism,
Racing and Fair Trading (Miscellaneous Provisions) Act 2003
and Tasmania in the Civil Liability Amendment Act
31 May 2005
Bills Digest Service
Information and Research Services
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