Commonwealth Consolidated Acts

TRADE PRACTICES ACT 1974 - SECT 82

             (1)  Subject to subsection (1AAA), a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

     (1AAA)  A person who suffers loss or damage by conduct of another person may not recover the amount of the loss or damage by an action under subsection (1) to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Division 1 of Part V; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury does not result from smoking or other use of tobacco products.

     (1AAB)  Divisions 2 and 7 of Part VIB apply to an action under subsection (1) for loss or damage a person suffers by conduct of another person to the extent to which:

                     (a)  the action is based on the conduct contravening a provision of Division 1 of Part V; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the action were a proceeding to which Part VIB applies.

Note 1:       Division 2 of Part VIB deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection (2) of this section.

Note 2:       Division 7 of Part VIB deals with structured settlements for claims for damages or compensation for death or personal injury.

       (1AA)  Subsection (1) has effect subject to section 87AB.

Note:          Section 87AB may limit the amount that the person may recover for a contravention of section 52 (Misleading or deceptive conduct) from the other person or from another person involved in the contravention.

          (1B)  Despite subsection (1), if:

                     (a)  a person (the claimant ) makes a claim under subsection (1) in relation to:

                              (i)  economic loss; or

                             (ii)  damage to property;

                            caused by conduct of another person (the defendant ) that was done in contravention of section 52; and

                     (b)  the claimant suffered the loss or damage:

                              (i)  as a result partly of the claimant's failure to take reasonable care; and

                             (ii)  as a result partly of the conduct referred to in paragraph (a); and

                     (c)  the defendant:

                              (i)  did not intend to cause the loss or damage; and

                             (ii)  did not fraudulently cause the loss or damage;

the damages that the claimant may recover in relation to the loss or damage are to be reduced to the extent to which the court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage.

Note:          Part VIA also applies proportionate liability to a claim for damages under this section for a contravention of section 52.

             (2)  An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

Note:          Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for damages for death or personal injury.

             (3)  In this section:

"smoking" has the same meaning as in the Tobacco Advertising Prohibition Act 1992 .

"tobacco product" has the same meaning as in the Tobacco Advertising Prohibition Act 1992 .