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Appendix 5 - Commonwealth, state and territory Legislative initiatives as at 30 September 2002
Commonwealth
Trade Practices
Amendment (Liability for Recreational Services) Bill 2002
This Bill permits companies who supply recreational services
to consumers to exclude their implied contractual liability for death or
personal injury where services are supplied without due care and skill.
Taxation Laws Amendment (Structured
Settlements) Bill 2002
This Bill exempts from income tax monies
received from certain annuity and lump sums that are received as part of a
structured settlement for personal injury claims.
New South Wales
Civil Liability Act 2002
This Act provides, among other matters:
- a limit on the amount of damages that may be awarded in respect
of past and future economic loss and gratuitous attendant care services;
- a threshold and a cap on damages for non-economic loss;
- a limit on the amount of costs that can be awarded for legal
services; and
- restrictions on solicitors and barristers acting for parties in unmeritorious
claims.
Legal Profession Amendment
(Advertising) Regulation 2002
This regulation restricts the manner in which
barristers and solicitors can advertise personal injury services.
Civil Liability Amendment (Personal
Responsibility) Bill 2002
This draft Bill, which was recently released
for discussion, deals with the following matters:
- the principles that are to be applied in determining what is
reasonably foreseeable and the standard of care for risk avoidance. The
principles will apply to liability in tort and contract;
- no civil liability for a failure to take reasonable care in
respect of a risk, or to warn of a risk, that a reasonable person would
consider to be an inherent or obvious risk;
- limited liability for damages for personal injury or damage to
property arising from recreational activities;
- proportionate liability in respect of claims involving economic
loss or property damage in non-personal injury matters;
- introduction of a peer acceptance defence in connection with
civil liability of professionals in tort or contract;
- limited liability in tort of a public or other authority;
- limitation on damages for injuries suffered by a person while
intoxicated;
- limited liability for injury or death or damage to property
resulting from self-defence or arising from criminal conduct; and
- protection from liability for ‘Good Samaritans’ and volunteers
who act in good faith.
Victoria
Wrongs and Other Acts (Public Liability Insurance Reform)
Bill
This bill covers the following matters:
- caps on loss of earnings at three times average weekly earnings;
- caps non-economic loss at $371,380, indexed to the CPI;
- sets a discount rate of 5% with the rate being adjusted from time
to time to reflect actual real investment returns;
- provides for structured settlements;
- allows people who partake in risky activities to waive their
right to sue;
- in determining whether a plaintiff has established a breach of
the duty of care owed by a defendant, courts will be required to take account
of the fact that a plaintiff may have been affected by alcohol or drugs or was
engaged in a criminal activity;
- protection of volunteers and Good Samaritans;
- ensuring saying ‘sorry’ does not represent an admission of
liability;
- protecting food donors from liability where they have donated
food to charities in good faith;
- requiring insurers to account clearly for the collection and
remission to the fire brigades of amounts the insurers collect from insurance
policy as ‘fire services levies’; and
- the appointment of a special Insurance Commissioner to the
Essential Services Commission, with responsibility for collecting insurance
data to ensure transparency and fairness in the pricing of premiums.
Queensland
Personal Injuries Proceedings Act
2002
This Act:
- provides procedures for speedy resolution of claims for damages
for personal injury;
- establishes procedures which promote early settlement of claims;
- provides mechanisms to ensure that a person cannot start court
proceedings unless they are fully prepared for resolution of the claim by way
of settlement or trial;
- limits damages in respect of gratuitous services;
- limits the amount of legal costs that can be awarded in specified
circumstances;
- excludes jury trials in personal injury claims;
- provides for structured settlements; and
- restricts advertising by lawyers of personal injury services and
touting.
South
Australia
Wrongs (Liability and Damages for
Personal Injury) Amendment Act 2002
Recreational Services (Limitation
of Liability) Act 2002
Statutes Amendment (Structured
Settlements) Act 2002
These Acts covers the
following matters:
- capping damages for non-economic loss;
- capping damages for future economic loss;
- capping payments in respect of gratuitous services;
- reducing damages where the injured party was intoxicated and this
contributed to the accident;
- excluding award of damages for injuries suffered by a person
engaged in a criminal activity;
- providing protection for ‘Good Samaritans’;
- strengthening the protection to volunteers;
- protecting landowners from liability where they allow free access
for recreational purposes;
- allowing people who partake in risky activities to waive their
right to sue;
- providing for structured settlements.
Western
Australia
Civil Liability Bill 2002
This Bill:
- imposes a threshold in respect of damages for non-economic loss;
- caps damages for economic loss;
- caps damages for gratuitous services;
- provides for structured settlements; and
- places restrictions on advertising by lawyers of personal injury
services.
Insurance Commission of
Western Australia Amendment Bill 2002
This Bill amends the Insurance Commission
of Western Australia Act 1986. It allows for the public liability insurance
cover provided by RiskCover to be extended to not-for-profit organisations.
Before cover can be granted an organisation must first be assessed and approved
by the Treasurer.
Volunteers (Protection from Liability) Bill
2002
This bill will give volunteers qualified
immunity from personal liability and transfer that liability to the
organisation for which the volunteer is working.
Tasmania
Tasmania has implemented a range of measures including:
- a discount rate of 7 per cent;
- no provision for pre-judgment interest;
- no damages in respect of gratuitous attendant care;
- a three year statute of limitations for personal injury claims;
- the abolition of stamp duty on public liability insurance
policies from 1 July 2002.
The second phase of reform,
announced on 11 September, includes:
- restricting the level of damages for those injured where the use
of recreational drugs, including alcohol, has contributed to the injury;
- restricting people from being able to claim damages if injured
while engaging in criminal activities;
- the use of structured settlements; and
- ensuring that saying ‘sorry’ is not an admission of liability.
Australian Capital Territory
Civil Laws (Wrongs) Act 2002
Adventure Activities (Liability) Bill 2002 (private
member’s bill)
Legal Practitioners Amendment Bill 2002 (private
member’s bill)
These deal with:
- regulating compensation in relation to the death or injury of
people taking part in certain adventure activities;
- introducing a regulatory regime for adventure activity operators;
- providing for structured settlements;
- abolishing rules preventing a court from making a determination
of liability separate from an order of damages;
- protecting ‘Good Samaritans’ and volunteers, including bushfire
volunteers;
- establishing new presumptions in regard to contributory
negligence;
- replacing the common law rules regarding standard of care an
occupier of premises must show to people entering on the premises in relation
to dangers to them;
- capping the legal costs in personal injury cases where the award
of damages is $100,000 or less;
- prohibiting lawyers from prosecuting a civil claim where there
are no reasonable prospects of success;
- establishing a regime for neutral evaluation of cases, with a
view to quicker and cheaper resolution of disputes;
- prohibiting lawyers advertising ‘no win, no fee’ services; and
- requiring market participants (whether offering insurance or
insurance-like products such as mutuals) to provide, in relation to the ACT
market, annual returns indicating the quantum of premium taken, claims made,
claims paid and claims refused.
Northern Territory
Personal Injuries (Liabilities and Damages) Bill 2002
This draft bill has been released for public comment. It
includes:
- an indexed cap of $250,000 for general damages;
- a cap on damages for past and future loss of earnings of three
times average weekly earnings;
- a threshold for non-economic loss of $15,000;
- prohibiting recovery of damages for those engaged in criminal
activity;
- providing that the use of recreational drugs and alcohol be taken
into account when assessing contributory negligence;
- exempting volunteers from being sued when undertaking work for
their volunteer organisations;
- protection for good samaritans;
- setting standard, commercially realistic interest rates for past
damages and discount rates for future damages;
-
tightening the provisions where compensation is payable for
voluntary or family carers;
- allowing courts to make orders for structured settlements; and
- a provision allowing people to say ‘sorry’ without this being an
admission of liability.
Proposed amendments to the Legal Practitioners Act will
also limit legal fees in ‘no win, no fee’ cases.
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