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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil Liability Legislation Amendment
Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Civil Liability Act 2002 No 22 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendment of Civil Liability Act 2002 3
Schedule 2 Amendment of other Acts 11
b2008-090-20.d16a
New South Wales
Civil Liability Legislation Amendment
Bill 2008
No , 2008
A Bill for
An Act to amend the Civil Liability Act 2002 and other Acts to make further
provision in respect of offender damages, victim claims, indexation of damages, and
damages for gratuitous attendant care services.
Clause 1 Civil Liability Legislation Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Civil Liability Legislation Amendment Act 2008. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Civil Liability Act 2002 No 22 6
The Civil Liability Act 2002 is amended as set out in Schedule 1. 7
4 Amendment of other Acts 8
The Acts specified in Schedule 2 are amended as set out in that 9
Schedule. 10
5 Repeal of Act 11
(1) This Act is repealed on the day following the day on which all of the 12
provisions of this Act have commenced. 13
(2) The repeal of this Act does not, because of the operation of section 30 14
of the Interpretation Act 1987, affect any amendment made by this Act. 15
Page 2
Civil Liability Legislation Amendment Bill 2008
Amendment of Civil Liability Act 2002 Schedule 1
Schedule 1 Amendment of Civil Liability Act 2002 1
(Section 3) 2
[1] Section 3B Civil liability excluded from Act 3
Insert at the end of section 3B (1) (a) (ii): 4
and 5
(iii) Part 2A (Special provisions for offenders in custody), 6
[2] Section 15 Damages for gratuitous attendant care services: general 7
Omit section 15 (3). Insert instead: 8
(3) Further, no damages may be awarded to a claimant for gratuitous 9
attendant care services unless the services are provided (or to be 10
provided): 11
(a) for at least 6 hours per week, and 12
(b) for a period of at least 6 consecutive months. 13
[3] Section 16 Determination of damages for non-economic loss 14
Omit "rounded to the nearest $500" from section 16 (4). 15
Insert instead "rounded to the nearest $500 (with the amounts of $250 and 16
$750 being rounded up)". 17
[4] Section 17 Indexation of maximum amount relating to non-economic 18
loss 19
Omit "rounded to the nearest $500" from section 17 (5). 20
Insert instead "rounded to the nearest $500 (with the amounts of $250 and 21
$750 being rounded up)". 22
[5] Section 26B Application of Part 23
Omit "being an injury caused by the negligence (that is, the failure to exercise 24
reasonable care and skill) of a protected defendant" from section 26B (1). 25
Insert instead "being an injury caused by the negligence (that is, the failure to 26
exercise reasonable care and skill) of the protected defendant or caused by the 27
tort (whether or not negligence) of another person for whose tort the protected 28
defendant is vicariously liable". 29
Page 3
Civil Liability Legislation Amendment Bill 2008
Schedule 1 Amendment of Civil Liability Act 2002
[6] Part 2A, Division 1A 1
Insert after Division 1 of Part 2A: 2
Division 1A Duties of claimant for offender damages 3
26BA Protected defendant must be given notice of incident giving rise to 4
claim 5
(1) A person (referred to in this Division as a claimant) who makes 6
or is entitled to make a claim against a protected defendant for an 7
award of personal injury damages to which this Part applies must 8
give the protected defendant notice of the incident that gives rise 9
to the claim within 6 months after the relevant date for the claim. 10
(2) The relevant date for the claim is the date of the incident that 11
gives rise to the claim unless the claim is made in respect of the 12
death of a person, in which case the relevant date is the date of the 13
person's death. 14
(3) Notice of an incident must be in writing and must: 15
(a) specify the date of the incident, and 16
(b) describe the incident (in ordinary language), and 17
(c) state that the incident may give rise to a claim against the 18
protected defendant. 19
(4) Notice given to an officer or employee of a protected defendant 20
is taken to have been given to the protected defendant. 21
(5) Time does not run for the purposes of this section while the 22
claimant is a vulnerable offender under section 26BC. 23
26BB Claimant must comply with requests for information 24
(1) A claimant must comply with any reasonable request by the 25
protected defendant to furnish specified information, or to 26
produce specified documents or records, for the purpose of 27
providing the protected defendant with sufficient information: 28
(a) to be satisfied as to the validity of the claim and, in 29
particular, to assess whether the claim or any part of the 30
claim may be fraudulent, and 31
(b) to be able to make an early assessment of liability, and 32
(c) to be able to make an informed offer of settlement. 33
(2) The reasonableness of a request under this section may be 34
assessed having regard to criteria including the following: 35
Page 4
Civil Liability Legislation Amendment Bill 2008
Amendment of Civil Liability Act 2002 Schedule 1
(a) the amount of time the claimant needs to comply with the 1
request, 2
(b) whether the information sought is cogent and relevant to a 3
determination of liability or quantum of loss, having 4
regard to the nature of the claim, 5
(c) the amount of information that has already been supplied 6
to or is available to the protected defendant to enable 7
liability and quantum of loss to be assessed and an offer of 8
settlement made, 9
(d) how onerous it will be for the claimant to comply with the 10
request, 11
(e) whether the information is privileged, 12
(f) whether the information sought is sufficiently specified, 13
(g) the time of the request and whether the claimant will be 14
delayed in commencing proceedings by complying with 15
the request. 16
(3) A claimant is not required to comply with a requirement under 17
this section while the claimant is a vulnerable offender under 18
section 26BC. 19
(4) The duty under this section applies only until court proceedings 20
are commenced. 21
26BC Vulnerable offenders 22
(1) An offender in custody is considered to be a vulnerable offender 23
for the purposes of this Division if: 24
(a) the offender has a reasonable apprehension that the 25
offender's safety will be put at risk if the offender gives 26
notice as required by section 26BA or complies with a 27
request of the protected defendant under section 26BB, 28
and 29
(b) the offender has (as a result of that reasonable 30
apprehension) applied to be placed in protective custody or 31
transferred to another correctional facility. 32
(2) The offender ceases to be a vulnerable offender when any of the 33
following happens: 34
(a) the offender is transferred to another correctional facility 35
or placed in protective custody in response to the 36
offender's application, 37
Page 5
Civil Liability Legislation Amendment Bill 2008
Schedule 1 Amendment of Civil Liability Act 2002
(b) the offender declines an offer to be transferred to another 1
correctional facility or be placed in protective custody in 2
response to the offender's application, 3
(c) the offender's application is rejected on the ground that the 4
offender has failed to establish that the application is made 5
on reasonable grounds. 6
26BD Dismissal of court proceedings for failure to give notice or 7
co-operate on claim 8
(1) A protected defendant against whom court proceedings for an 9
award of damages to which this Part applies are commenced may 10
apply to the court to have the proceedings dismissed on the 11
grounds of a failure to comply with section 26BA or 26BB in 12
connection with the claim concerned. 13
(2) An application under this section cannot be made more than 14
2 months after the statement of claim is served on the protected 15
defendant. 16
(3) On an application under this section, the court must dismiss the 17
proceedings unless the court is satisfied that: 18
(a) section 26BA has been complied with in respect of the 19
claim or the claimant has a full and satisfactory 20
explanation for non-compliance with that section and the 21
required notice of the incident was given to the protected 22
defendant within a reasonable period in the circumstances, 23
and 24
(b) the claimant has complied with section 26BB in respect of 25
the claim or has a reasonable excuse for any 26
non-compliance with that section. 27
[7] Section 26L Offender damages to be held in trust as victim trust fund 28
Omit section 26L (1) and (2). Insert instead: 29
(1) The protected defendant liable to pay offender damages awarded 30
to an offender is to pay those damages to the Public Trustee to be 31
held in trust for the offender and paid out only as authorised by 32
this Division. 33
(2) Offender damages held in trust for an offender under this 34
Division comprise a victim trust fund for victims of the offender. 35
The protected defendant liable to pay those damages is 36
responsible for the fund. 37
Page 6
Civil Liability Legislation Amendment Bill 2008
Amendment of Civil Liability Act 2002 Schedule 1
[8] Section 26L (6) 1
Insert after section 26L (5): 2
(6) While offender damages are held in a victim trust fund, the 3
liability of a protected defendant to pay those damages is 4
suspended. 5
[9] Section 26M Victim trust fund available to satisfy eligible victim claims 6
Omit "6 months" from section 26M (3). Insert instead "12 months". 7
[10] Section 26N Notice to persons entitled to make victim claim 8
Omit ", within 28 days after the award date for the damages concerned," from 9
section 26N (1). 10
[11] Section 26N (1) 11
Omit "official records". Insert instead "information". 12
[12] Section 26N (1A) 13
Insert after section 26N (1): 14
(1A) The notice must be sent as far as practicable within 28 days after 15
the award date for the damages concerned (but this subsection 16
does not prevent the notice from being sent more than 28 days 17
after the award). 18
[13] Section 26N (2) 19
Omit "shown in official records". 20
Insert instead "disclosed by any information". 21
[14] Section 26N (5) 22
Insert after section 26N (4): 23
(5) The Commissioner of Police is authorised to provide a protected 24
defendant with any information in the Commissioner's 25
possession that the protected defendant may reasonably require 26
for: 27
(a) identifying and contacting persons who may have a victim 28
claim against the offender, or 29
(b) determining whether a person appears to have a victim 30
claim against the offender. 31
Page 7
Civil Liability Legislation Amendment Bill 2008
Schedule 1 Amendment of Civil Liability Act 2002
[15] Section 26Q Orders for payment of damages out of money held in trust 1
for victims of offender 2
Omit section 26Q (5). Insert instead: 3
(5) The payment of an amount out of a victim trust fund in 4
accordance with an order of a court under this section is taken to 5
be a payment made at the direction of the offender and operates 6
as a discharge, to the extent of the payment, of: 7
(a) the liability of the protected defendant to pay the amount 8
to the offender concerned as offender damages, and 9
(b) the obligation of the Public Trustee to hold the amount in 10
trust for the offender concerned. 11
[16] Section 26R Payment to offender of trust fund surplus 12
Omit section 26R (3). Insert instead: 13
(3) If a protected defendant responsible for a victim trust fund 14
determines and certifies to the Public Trustee that there is a 15
surplus in the fund, the Public Trustee must pay the certified 16
surplus to or at the direction of the offender concerned. 17
[17] Section 26S Functions of the Public Trustee 18
Omit section 26S (1). 19
[18] Section 26S (2) 20
Omit "this section". Insert instead "this Division". 21
[19] Section 26S (3) and (4) 22
Omit the subsections. 23
[20] Section 26S (5) and (6) 24
Omit the subsections. Insert instead: 25
(5) The fees and expenses payable to the Public Trustee in 26
connection with the exercise of functions by the Public Trustee 27
under this Division are payable out of the victim trust fund in 28
connection with which those functions are exercised. 29
(6) The certificate of the Public Trustee as to the fees and expenses 30
payable to the Public Trustee in connection with the exercise of 31
functions by the Public Trustee under this Division is sufficient 32
authority for the payment of the relevant amounts out of the 33
victim trust fund concerned. 34
Page 8
Civil Liability Legislation Amendment Bill 2008
Amendment of Civil Liability Act 2002 Schedule 1
[21] Section 26V Protection from liability 1
Omit "on behalf of a protected defendant" from section 26V (2). 2
[22] Schedule 1 Savings and transitional provisions 3
Insert at the end of clause 1 (1): 4
Civil Liability Legislation Amendment Act 2008 5
[23] Schedule 1, Part 11 6
Insert after Part 10 of Schedule 1: 7
Part 11 Provisions consequent on enactment of 8
Civil Liability Legislation Amendment Act 9
2008 10
31 Definition 11
In this Part: 12
2008 amending Act means the Civil Liability Legislation 13
Amendment Act 2008. 14
32 Restrictions on damages for gratuitous attendant care services 15
An amendment made to section 15 by the 2008 amending Act 16
extends to civil liability arising, and to proceedings commenced, 17
before the commencement of the amendment but does not apply 18
to any proceedings determined before that commencement. 19
33 Indexation of non-economic loss damages 20
The amendments made by the 2008 amending Act to sections 16 21
and 17 are taken to have had effect on and from the 22
commencement of those sections. 23
34 Vicarious liability of protected defendant 24
The amendment made by the 2008 amending Act to section 26B 25
extends to civil liability arising, and any award of damages in 26
respect of such civil liability made, before the commencement of 27
the amendment, but not so as to affect any final determination of 28
legal proceedings made by a court or tribunal before the 29
commencement of the amendment. 30
Page 9
Civil Liability Legislation Amendment Bill 2008
Schedule 1 Amendment of Civil Liability Act 2002
35 Duties of claimant for offender damages 1
Division 1A of Part 2A does not apply in relation to an award of 2
damages if the incident giving rise to the claim occurred before 3
the commencement of that Division. 4
36 Operation of Part 2A in respect of intentional torts 5
The amendment made by the 2008 amending Act to section 3B 6
extends to civil liability arising, and any award of damages in 7
respect of such civil liability made, before the commencement of 8
the amendment, but not so as to affect any final determination of 9
legal proceedings made by a court or tribunal before the 10
commencement of the amendment. 11
37 Eligibility period for victim claims 12
The amendment made by the 2008 amending Act to section 26M 13
extends to an eligibility period under that section that had 14
commenced to run, but that had not expired, before the 15
commencement of the amendment. 16
38 Notification of persons entitled to make victim claim 17
An amendment made by the 2008 amending Act to section 26N 18
extends to a victim claim that arose before the commencement of 19
the amendment. 20
39 Offender damages held on trust by Public Trustee 21
(1) An amendment made by the 2008 amending Act to section 26L, 22
26Q, 26R or 26S extends to a victim claim that arose before the 23
commencement of the amendment. 24
(2) Offender damages held on trust by a protected defendant under 25
section 26L immediately before the commencement of the 26
amendments to that section by the 2008 amending Act are, on and 27
from that commencement, taken to be held on trust under that 28
section by the Public Trustee. 29
Page 10
Civil Liability Legislation Amendment Bill 2008
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts 1
(Section 4) 2
2.1 Motor Accidents Act 1988 No 102 3
[1] Section 72 Maximum amount of damages for provision of certain home 4
care services 5
Omit section 72 (2). Insert instead: 6
(2) Further, no compensation is to be awarded unless the services are 7
provided (or to be provided): 8
(a) for at least 6 hours per week, and 9
(b) for a period of at least 6 consecutive months. 10
[2] Schedule 4 Savings, transitional and other provisions 11
Insert at the end of clause 1 (1): 12
Civil Liability Legislation Amendment Act 2008 13
[3] Schedule 4, Part 13 14
Insert after Part 12 of Schedule 4: 15
Part 13 Provision arising from the enactment of the 16
Civil Liability Legislation Amendment Act 17
2008 18
36 Restrictions on compensation for home care services 19
An amendment made to this Act by the Civil Liability Legislation 20
Amendment Act 2008 extends to liability arising, and to 21
proceedings commenced, before the commencement of the 22
amendment but does not apply to any proceedings determined 23
before that commencement. 24
2.2 Motor Accidents Compensation Act 1999 No 41 25
[1] Section 128 Damages for economic loss--maximum amount for 26
provision of certain attendant care services 27
Omit section 128 (3). Insert instead: 28
(3) Further, no compensation is to be awarded unless the services are 29
provided (or to be provided): 30
(a) for at least 6 hours per week, and 31
Page 11
Civil Liability Legislation Amendment Bill 2008
Schedule 2 Amendment of other Acts
(b) for a period of at least 6 consecutive months. 1
[2] Schedule 5 Savings, transitional and other provisions 2
Insert at the end of clause 2 (1): 3
Civil Liability Legislation Amendment Act 2008 4
[3] Schedule 5 5
Insert at the end of the Schedule with appropriate Part and clause numbering: 6
Part Provision arising from the Civil Liability 7
Legislation Amendment Act 2008 8
Restrictions on compensation for attendant care services 9
An amendment made to this Act by the Civil Liability Legislation 10
Amendment Act 2008 extends to liability arising, and to 11
proceedings commenced, before the commencement of the 12
amendment but does not apply to any proceedings determined 13
before that commencement. 14
Page 12
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