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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 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Civil Liability Act 2002 No 22 2
4 Repeal of Act 2
Schedule 1 Amendments 3
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, , 2006
New South Wales
Civil Liability Amendment Bill 2006
Act No , 2006
An Act to amend the Civil Liability Act 2002 to make further provision with respect
to damages for gratuitous attendant care services and for loss of capacity to provide
domestic services; 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 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Civil Liability Amendment Act 2006.
2 Commencement
This Act commences on the date of assent to this Act.
3 Amendment of Civil Liability Act 2002 No 22
The Civil Liability Act 2002 is amended as set out in Schedule 1.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which this Act
commences.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Civil Liability Amendment Bill 2006
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3B Civil liability excluded from Act
Omit section 3B (1) (a). Insert instead:
(a) civil liability in respect of an intentional act that is done
with intent to cause injury or death or that is sexual assault
or other sexual misconduct--the whole Act except:
(i) section 15B and section 18 (1) (in its application to
damages for any loss of the kind referred to in
section 18 (1) (c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in
respect of civil liability in respect of an intentional
act that is done with intent to cause injury or death,
[2] Section 3B (1) (b)
Insert "except sections 15A and 15B and section 18 (1) (in its application to
damages for any loss of the kind referred to in section 18 (1) (c))" after "whole
Act".
[3] Section 3B (1) (c)
Insert "except section 15B and section 18 (1) (in its application to damages for
any loss of the kind referred to in section 18 (1) (c))" after "whole Act".
[4] Section 3B (2) (a1)
Insert after section 3B (2) (a):
(a1) section 15B (Damages for loss of capacity to provide
domestic services),
[5] Section 3B (2) (b)
Omit "15A". Insert instead "15C".
[6] Section 3B (2) (c1)
Insert after section 3B (2) (c):
(c1) section 18 (1) (in its application to damages for any loss of
the kind referred to in section 18 (1) (c)),
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Civil Liability Amendment Bill 2006
Schedule 1 Amendments
[7] Section 15 Damages for gratuitous attendant care services: general
Relocate the note at the end of the section to the end of subsection (3).
[8] Section 15
Insert at the end of the section:
Note. By reason of the operation of section 3B (1) (b), this section does
not apply to the determination of civil liability in proceedings of the kind
referred to in section 11 (Claims for damages for dust diseases etc to be
brought under this Act) of the Dust Diseases Tribunal Act 1989.
Section 15A makes provision with respect to the determination of
damages for gratuitous attendant care services in proceedings of the
kind referred to in section 11 of the Dust Diseases Tribunal Act 1989.
[9] Section 15A Damages for loss of superannuation entitlements
Renumber the section as section 15C.
[10] Section 15A
Insert after section 15:
15A Damages for gratuitous attendant care services: dust-related
conditions
(1) This section applies to the determination of civil liability for
damages for gratuitous attendant care services in proceedings of
the kind referred to in section 11 (Claims for damages for dust
diseases etc to be brought under this Act) of the Dust Diseases
Tribunal Act 1989.
(2) The amount of damages that may be awarded for gratuitous
attendant care services in proceedings referred to in
subsection (1) must not exceed the amount calculated at the same
hourly rate as that provided by section 15 (5) regardless of the
number of hours involved.
(3) Except as provided by this section, nothing in this section affects
any other law relating to the value of attendant care services.
(4) In this section, attendant care services and gratuitous attendant
care services have the same meanings as they have in section 15.
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Civil Liability Amendment Bill 2006
Amendments Schedule 1
[11] Section 15B
Insert before section 15C (as renumbered by item [9]):
15B Damages for loss of capacity to provide domestic services
(1) Definitions
In this section:
assisted care, in relation to a dependant of a claimant, means any
of the following kinds of care (whether or not the care is provided
gratuitously):
(a) any respite care (being care that includes accommodation
that is provided by a person other than the claimant to a
dependant who is aged or frail, or who suffers from a
physical or mental disability, with the primary purpose of
giving the dependant or claimant, or both, a break from
their usual care arrangements),
(b) if the dependant is a minor (but without limiting
paragraph (a))--any care that is provided to the dependant
by a person other than the claimant where:
(i) the person is a parent of the dependant (whether
derived through paragraph (a) (i) or (ii) of the
definition of dependants in this subsection,
adoption or otherwise), and
(ii) the care includes the provision of accommodation to
the dependant.
dependants, in relation to a claimant, means:
(a) such of the following persons as are wholly or partly
dependent on the claimant at the time that the liability in
respect of which the claim is made arises:
(i) the husband or wife of the claimant,
(ii) a de facto partner of the claimant, being a person
who has a de facto relationship (within the meaning
of the Property (Relationships) Act 1984) with the
claimant,
(iii) a child, grandchild, sibling, uncle, aunt, niece,
nephew, parent or grandparent of the claimant
(whether derived through subparagraph (i) or (ii),
adoption or otherwise),
(iv) any other person who is a member of the claimant's
household, and
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Civil Liability Amendment Bill 2006
Schedule 1 Amendments
(b) any unborn child of the claimant (whether derived through
paragraph (a) (i) or (ii), adoption or otherwise) at the time
that the liability in respect of which the claim is made
arises and who is born after that time.
gratuitous domestic services means services of a domestic nature
for which the person providing the service has not been paid or is
not liable to be paid.
(2) When damages may be awarded
Damages may be awarded to a claimant for any loss of the
claimant's capacity to provide gratuitous domestic services to the
claimant's dependants, but only if the court is satisfied that:
(a) in the case of any dependants of the claimant of the kind
referred to in paragraph (a) of the definition of dependants
in subsection (1)--the claimant provided the services to
those dependants before the time that the liability in
respect of which the claim is made arose, and
(b) the claimant's dependants were not (or will not be) capable
of performing the services themselves by reason of their
age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the injury to
which the damages relate, the claimant would have
provided the services to the claimant's dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for
those hours per week and that consecutive period of time
and that need is reasonable in all the circumstances.
Note. Section 18 provides that a court cannot order the payment of
interest on damages awarded for any loss of capacity of a claimant to
provide gratuitous domestic services to the claimant's dependants.
(3) If a dependant of the claimant received (or will receive) assisted
care during the 6-month period referred to in subsection (2) (c)
(ii) and the court is satisfied that the periods of that care were (or
will be) short-term and occasional, the court may:
(a) in determining whether the claimant would have provided
gratuitous domestic services to the dependant during a
particular week for at least the 6 hours referred to in
subsection (2) (c) (i), disregard the week if assisted care
was (or will be) provided during that week, and
(b) in determining whether the claimant would have provided
gratuitous domestic services to the dependant during the
6-month period referred to in subsection (2) (c) (ii),
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Civil Liability Amendment Bill 2006
Amendments Schedule 1
disregard any periods during which the assisted care was
(or will be) provided in that 6-month period,
but only if the total number of weeks in which the care was (or
will be) provided during the 6-month period does not exceed 4
weeks in total.
(4) Determination of amount of damages
The amount of damages that may be awarded for any loss of the
claimant's capacity to provide gratuitous domestic services must
not exceed the amount calculated at the same hourly rate as that
provided by section 15 (5) regardless of the number of hours
involved.
(5) In determining the amount of damages (if any) to be awarded to
a claimant for any loss of the claimant's capacity to provide
gratuitous domestic services to the claimant's dependants, a
court:
(a) may only award damages for that loss in accordance with
the provisions of this section, and
(b) must not include in any damages awarded to the claimant
for non-economic loss a component that compensates the
claimant for the loss of that capacity.
(6) Circumstances when damages may not be awarded
The claimant (or the legal personal representative of a deceased
claimant) may not be awarded damages for any loss of the
claimant's capacity to provide gratuitous domestic services to
any dependant of the claimant if the dependant has previously
recovered damages in respect of that loss of capacity.
(7) A person (including a dependant of a claimant) may not be
awarded damages for a loss sustained by the person by reason of
the claimant's loss of capacity to provide gratuitous domestic
services if the claimant (or the legal personal representative of a
deceased claimant) has previously recovered damages in respect
of that loss of capacity.
(8) If a claimant is a participant in the Scheme under the Motor
Accidents (Lifetime Care and Support) Act 2006, damages may
not be awarded to the claimant under this section in respect of any
loss of the claimant's capacity to provide gratuitous domestic
services to the claimant's dependants while the claimant is a
participant in the Scheme if (and to the extent that):
(a) the loss resulted from the motor accident injury (within the
meaning of that Act) in respect of which the claimant is a
participant in that Scheme, and
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Civil Liability Amendment Bill 2006
Schedule 1 Amendments
(b) the treatment and care needs (within the meaning of that
Act) of the claimant that are provided for or are to be
provided under the Scheme include the provision of such
domestic services to the claimant's dependants.
(9) Damages may not be awarded to a claimant under this section in
respect of any loss of the claimant's capacity to provide
gratuitous domestic services to the claimant's dependants if (and
to the extent that):
(a) the loss resulted from an injury caused by a motor accident
(within the meaning of the Motor Accidents Compensation
Act 1999), and
(b) an insurer has made, or is liable to make, payments to or on
behalf of the claimant for such services under section 83
(Duty of insurer to make hospital, medical and other
payments) of that Act.
(10) Damages may not be awarded if they can be recovered as
damages for attendant care services
Damages may not be awarded to a claimant under this section in
respect of any loss of the claimant's capacity to provide
gratuitous domestic services to the claimant's dependants if (and
to the extent that):
(a) the claimant could recover damages for gratuitous
attendant care services (within the meaning of section 15)
in respect of the same injury that caused the loss, and
(b) the provision of such attendant care services to the
claimant also resulted (or would also result) in the
claimant's dependants being provided with the domestic
services that the claimant has lost the capacity to provide.
(11) Determining value of gratuitous domestic services
In determining the value of any gratuitous domestic services that
a claimant has lost the capacity to provide, the court must take
into account:
(a) the extent of the claimant's capacity to provide the services
before the claimant sustained the injury that is the subject
of the claim, and
(b) the extent to which provision of the services would, but for
the injury sustained by the claimant, have also benefited
persons in respect of whom damages could not be awarded
under subsection (2), and
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Civil Liability Amendment Bill 2006
Amendments Schedule 1
(c) the vicissitudes or contingencies of life for which
allowance is ordinarily made in the assessment of
damages.
[12] Section 18 Interest on damages
Omit section 18 (1). Insert instead:
(1) A court cannot order the payment of interest on damages awarded
for any of the following:
(a) non-economic loss,
(b) gratuitous attendant care services as defined in section 15
(other than gratuitous attendant care services to which
section 15A applies),
(c) loss of a claimant's capacity to provide gratuitous
domestic services to the claimant's dependants (as
provided by section 15B).
[13] Section 18 (2)
Omit "(other than damages for non-economic loss or gratuitous attendant care
services)".
Insert instead "(other than damages in respect of which a court cannot order
the payment of interest under subsection (1))".
[14] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Civil Liability Amendment Act 2006
[15] Schedule 1, Part 8
Insert after Part 7:
Part 8 Provisions consequent on enactment of
Civil Liability Amendment Act 2006
22 Definition
In this Part:
amending Act means the Civil Liability Amendment Act 2006.
23 Application of amendments made by amending Act
(1) Section 15A (as inserted by the amending Act) extends to civil
liability arising before the commencement of section 15A, but
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Civil Liability Amendment Bill 2006
Schedule 1 Amendments
does not apply to any proceedings that were finally determined
before that commencement.
(2) Section 15B (as inserted by the amending Act) and section 18 (1)
(as amended by the amending Act) extend to civil liability arising
before the commencement of section 15B, but do not apply to any
proceedings that were finally determined before that
commencement.
(3) For the purposes of subclauses (1) and (2), section 3B (1) (a)(c)
and (2) (a1) and (c1) (as inserted or amended by the amending
Act) also extend to the civil liability referred to in those
subclauses.
Page 10
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