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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil Liability Amendment Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Civil Liability Act 2002 No 22 2
4 Amendment of Mental Health Act 1990 No 9 2
Schedule 1 Amendments to Civil Liability Act 2002 concerning public
authorities, criminals, mentally ill persons and childbirth 3
Schedule 2 Amendments to Civil Liability Act 2002 concerning
proportionate liability 7
Schedule 3 Other amendments to Civil Liability Act 2002 10
Schedule 4 Amendment of Mental Health Act 1990 12
Civil Liability Amendment Bill 2003
Contents
Page
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Civil Liability Amendment Bill 2003
Act No , 2003
An Act to amend the Civil Liability Act 2002 with respect to the civil liability of
public authorities and officials and for the birth of a child, the recovery of
damages by criminals and mentally ill persons, self-defence and proportionate
liability; to amend the Mental Health Act 1990 to exclude civil liability for
certain functions exercised under that Act; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Civil Liability Amendment Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Civil Liability Amendment Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Civil Liability Act 2002 No 22
The Civil Liability Act 2002 is amended as set out in Schedules 13.
4 Amendment of Mental Health Act 1990 No 9
The Mental Health Act 1990 is amended as set out in Schedule 4.
Page 2
Civil Liability Amendment Bill 2003
Amendments to Civil Liability Act 2002 concerning public authorities, Schedule 1
criminals, mentally ill persons and childbirth
Schedule 1 Amendments to Civil Liability Act 2002
concerning public authorities, criminals,
mentally ill persons and childbirth
(Section 3)
[1] Section 41 Definitions
Insert after paragraph (e) of the definition of public or other authority:
(e1) any person having public official functions or acting in
a public official capacity (whether or not employed as a
public official), but only in relation to the exercise of
the person's public official functions, or
[2] Section 43A
Insert after section 43:
43A Proceedings against public or other authorities for the
exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which
this Part applies to the extent that the liability is based on a
public or other authority's exercise of, or failure to exercise, a
special statutory power conferred on the authority.
(2) A special statutory power is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not
authorised to exercise without specific statutory
authority.
(3) For the purposes of any such proceedings, any act or omission
involving an exercise of, or failure to exercise, a special
statutory power does not give rise to civil liability unless the
act or omission was in the circumstances so unreasonable that
no authority having the special statutory power in question
could properly consider the act or omission to be a reasonable
exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other
authority to prohibit or regulate an activity, this section
applies in addition to section 44.
Page 3
Civil Liability Amendment Bill 2003
Schedule 1 Amendments to Civil Liability Act 2002 concerning public authorities,
criminals, mentally ill persons and childbirth
[3] Section 52 No civil liability for acts in self-defence
Omit ", but only if the conduct to which the person was responding was
unlawful." from section 52 (1).
Insert instead:
, but only if the conduct to which the person was responding:
(a) was unlawful, or
(b) would have been unlawful if the other person carrying
out the conduct to which the person responds had not
been suffering from a mental illness at the time of the
conduct.
[4] Section 54 Criminals not to be awarded damages
Omit section 54 (1) (a) and (b). Insert instead:
(a) the death of, or the injury or damage to, the person that
is the subject of the proceedings occurred at the time of,
or following, conduct of that person that, on the balance
of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury
or damage or to the risk of death, injury or damage.
[5] Section 54A
Insert after section 54:
54A Damages limitations if loss results from serious offence
committed by mentally ill person
(1) This section applies to a liability to which this Part applies in
circumstances where:
(a) the liability arises out of the death of, or injury or
damage to, a person, and
(b) that death, injury or damage occurred at the time of, or
following, conduct of the person that, on the balance of
probabilities, would have constituted a serious offence
if the person had not been suffering from a mental
illness at the time of the conduct, and
(c) that conduct contributed materially to the death, injury
or damage or to the risk of death, injury or damage.
Page 4
Civil Liability Amendment Bill 2003
Amendments to Civil Liability Act 2002 concerning public authorities, Schedule 1
criminals, mentally ill persons and childbirth
(2) If a court awards damages in respect of a liability to which this
section applies, the following limitations apply to that award:
(a) no damages may be awarded for non-economic loss,
and
(b) no damages for economic loss may be awarded for loss
of earnings.
(3) A serious offence is an offence punishable by imprisonment
for 6 months or more.
(4) This section does not apply to an award of damages against a
defendant if the conduct of the defendant that caused the
death, injury or damage concerned:
(a) constitutes an offence (whether or not a serious
offence), or
(b) would have constituted an offence (whether or not a
serious offence) if the defendant had not been suffering
from a mental illness at the time of the conduct.
(5) This section operates whether or not a person whose conduct
is in issue was acquitted of an offence concerning that conduct
by reason of mental illness or was found by a court not to be
fit to be tried for an offence concerning that conduct by reason
of such an illness.
[6] Part 11
Insert after Part 10:
Part 11 Damages for the birth of a child
70 Application of Part
(1) This Part applies to any claim for damages in civil
proceedings for the birth of a child, regardless of whether that
claim is made in tort, in contract, under statute or otherwise.
(2) This Part does not apply to any claim for damages by a child
in civil proceedings for personal injury (within the meaning of
Part 1A) sustained by the child pre-natally or during birth.
(3) This Part does not apply to civil liability that is excluded from
the operation of this Part by section 3B but, despite that
section, does apply to liability of the kind referred to in
section 3B (1) (a).
Page 5
Civil Liability Amendment Bill 2003
Schedule 1 Amendments to Civil Liability Act 2002 concerning public authorities,
criminals, mentally ill persons and childbirth
71 Limitation of the award of damages for the birth of a child
(1) In any proceedings involving a claim for the birth of a child to
which this Part applies, the court cannot award damages for
economic loss for:
(a) the costs associated with rearing or maintaining the
child that the claimant has incurred or will incur in the
future, or
(b) any loss of earnings by the claimant while the claimant
rears or maintains the child.
(2) Subsection (1) (a) does not preclude the recovery of any
additional costs associated with rearing or maintaining a child
who suffers from a disability that arise by reason of the
disability.
Page 6
Civil Liability Amendment Bill 2003
Amendments to Civil Liability Act 2002 concerning proportionate liability Schedule 2
Schedule 2 Amendments to Civil Liability Act 2002
concerning proportionate liability
(Section 3)
[1] Section 34 Application of Part (as inserted by Schedule 1 [5] to the
Civil Liability Amendment (Personal Responsibility) Act 2002
No 92)
Omit section 34 (1). Insert instead:
(1) This Part applies to the following claims (apportionable
claims):
(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,
(b) a claim for economic loss or damage to property in an
action for damages under the Fair Trading Act 1987 for
a contravention of section 42 of that Act.
[2] Section 34 (1A)
Insert after section 34 (1) (as inserted by Schedule 1 [5] to the Civil
Liability Amendment (Personal Responsibility) Act 2002):
(1A) 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).
[3] Section 34 (2) (as inserted by Schedule 1 [5] to the Civil Liability
Amendment (Personal Responsibility) Act 2002 No 92)
Omit "A". Insert instead "In this Part, a".
[4] Section 34 (2) (as inserted by Schedule 1 [5] to the Civil Liability
Amendment (Personal Responsibility) Act 2002 No 92)
Insert "(or act or omission)" after "acts or omissions".
[5] Section 34 (5) (as inserted by Schedule 1 [5] to the Civil Liability
Amendment (Personal Responsibility) Act 2002 No 92)
Omit the subsection.
Page 7
Civil Liability Amendment Bill 2003
Schedule 2 Amendments to Civil Liability Act 2002 concerning proportionate liability
[6] Section 34A
Insert after section 34 (as inserted by Schedule 1 [5] to the Civil Liability
Amendment (Personal Responsibility) Act 2002):
34A 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 3B.
(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.
[7] Section 35A
Insert after section 35 (as inserted by Schedule 1 [5] to the Civil Liability
Amendment (Personal Responsibility) Act 2002):
35A 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
Page 8
Civil Liability Amendment Bill 2003
Amendments to Civil Liability Act 2002 concerning proportionate liability Schedule 2
(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 of the plaintiff.
(2) The court may order that the costs to be paid by the defendant
be assessed on an indemnity basis or otherwise.
Page 9
Civil Liability Amendment Bill 2003
Schedule 3 Other amendments to Civil Liability Act 2002
Schedule 3 Other amendments to Civil Liability
Act 2002
(Section 3)
[1] Section 3C
Insert after section 3B:
3C Act operates to exclude or limit vicarious liability
Any provision of this Act that excludes or limits the civil
liability of a person for a tort also operates to exclude or limit
the vicarious liability of another person for that tort.
[2] Sections 42, 44 (1) and 45 (1)
Insert "for civil liability" before "to which this Part applies" wherever
occurring.
[3] Section 43 Proceedings against public or other authorities based
on breach of statutory duty
Omit "to which this Part applies that are based on an alleged" in section
43 (1).
Insert instead "for civil liability to which this Part applies to the extent that
the liability is based on a".
[4] Section 44 When public or other authority not liable for failure to
exercise regulatory functions
Omit "claim" and "claimant" from section 44 (1).
Insert instead "liability" and "plaintiff" respectively.
[5] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Civil Liability Amendment Act 2003
Page 10
Civil Liability Amendment Bill 2003
Other amendments to Civil Liability Act 2002 Schedule 3
[6] Schedule 1, Part 4
Insert after Part 3:
Part 4 Provisions consequent on enactment of
Civil Liability Amendment Act 2003
12 Definition
In this Part:
amending Act means the Civil Liability Amendment Act 2003.
13 Application of amendments concerning proportionate liability
Clause 6 (1) extends to Part 4 (as inserted by the Civil
Liability Amendment (Personal Responsibility) Act 2002 and
amended by the amending Act).
14 Application of amendments relating to damages for birth of
child
(1) Part 11 (as inserted by Schedule 1 [6] to the amending Act)
applies in relation to civil liability whether arising before or
after 13 November 2003.
(2) However, Part 11 does not apply to proceedings commenced
in a court before 13 November 2003.
15 Application of amendments concerning public and other
authorities, criminals and mentally ill persons
(1) Parts 5 and 7 (as amended by the amending Act) apply in
relation to civil liability whether arising before or after 13
November 2003.
(2) Parts 5 and 7 (as so amended) also extend to proceedings
commenced before 13 November 2003.
(3) However, subclause (2) does not operate:
(a) to apply Part 5 or 7 (as so amended) in respect of any
decision of a court made before the commencement of
this clause, or
(b) to apply Part 5 or 7 in relation to any proceedings to
which the Part did not apply immediately before the
commencement of this clause.
Page 11
Civil Liability Amendment Bill 2003
Schedule 4 Amendment of Mental Health Act 1990
Schedule 4 Amendment of Mental Health Act 1990
(Section 4)
Section 294
Omit the section. Insert instead:
294 Liability of police officers and health care professionals
exercising functions under this Act
(1) Any police officer or health care professional who, in good
faith, exercises a function that is conferred or imposed on that
person by or under this Act is not personally liable for any
injury or damage caused by the exercise of that function.
(2) Nothing in this section affects any exclusion from liability
provided by another provision of this Act or any other Act.
(3) In this section, health care professional means a person
registered under a health registration Act within the meaning
of the Health Care Complaints Act 1993.
Page 12
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