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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Law Reform (Miscellaneous
Provisions) Amendment Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Law Reform (Miscellaneous Provisions)
Act 1965 No 32 2
4 Amendment of other Acts 2
Schedules
1 Amendment of Law Reform (Miscellaneous Provisions)
Act 1965 3
2 Amendment of other Acts 9
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, , 2000
New South Wales
Law Reform (Miscellaneous
Provisions) Amendment Bill 2000
Act No , 2000
An Act to amend the Law Reform (Miscellaneous Provisions) Act 1965 to make
provision for the application of the common law doctrine of contributory
negligence to contractual liability in certain circumstances; 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 Law Reform (Miscellaneous Provisions) Amendment Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Law Reform (Miscellaneous Provisions) Amendment
Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Law Reform (Miscellaneous Provisions) Act 1965 No 32
The Law Reform (Miscellaneous Provisions) Act 1965 is amended as
set out in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
Page 2
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Amendment of Law Reform (Miscellaneous Provisions) Act 1965 Schedule 1
Schedule 1 Amendment of Law Reform (Miscellaneous
Provisions) Act 1965
(Section 3)
[1] Section 1 Name of Act
Omit section 1 (2).
[2] Section 2A
Insert after section 2:
2A Notes
Notes included in this Act are explanatory notes and do not
form part of this Act.
[3] Part 3
Omit the Part. Insert instead:
Part 3 Amendment of doctrine of contributory
negligence
7 Application of Part to breach of statutory duty
(1) This Part does not apply to any action for damages founded on
a breach of statutory duty imposed on a defendant.
(2) This Part does not affect the provisions and operation of the
Statutory Duties (Contributory Negligence) Act 1945.
8 Definitions
In this Part:
claimant--see section 9 (1).
contributory negligence--see section 9 (1).
court, in relation to any claim, means the court by or before
which the claim falls to be determined.
damage includes loss of life and personal injury.
Page 3
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Schedule 1 Amendment of Law Reform (Miscellaneous Provisions) Act 1965
wrong means an act or omission that:
(a) gives rise to a liability in tort in respect of which a
defence of contributory negligence is available at
common law, or
(b) amounts to a breach of a contractual duty of care that is
concurrent and co-extensive with a duty of care in tort.
9 Apportionment of liability in cases of contributory negligence
(1) If a person (the claimant) suffers damage as the result partly of
the claimant's failure to take reasonable care (contributory
negligence) and partly of the wrong of any other person:
(a) a claim in respect of the damage is not defeated by
reason of the contributory negligence of the claimant,
and
(b) the damages recoverable in respect of the wrong are to
be reduced to such extent as the court thinks just and
equitable having regard to the claimant's share in the
responsibility for the damage.
(2) Subsection (1) does not operate to defeat any defence arising
under a contract.
(3) If any contract or enactment providing for the limitation of
liability is applicable to the claim, the amount of damages
recoverable by the claimant by virtue of subsection (1) is not to
exceed the maximum limit so applicable.
10 Workers compensation and contributory negligence
(1) If any payments made to the claimant by way of compensation
take effect under section 63 (5) of the Workers' Compensation
Act 1926 to any extent as a defence to the proceedings by the
claimant against his or her employer, those payments are to be
reduced to the same extent as the damages recoverable by the
claimant are reduced under section 9, and are a defence to the
reduced extent only.
(2) If the claimant is liable to repay compensation to his or her
employer under section 64 (1) (a) of the Workers'
Compensation Act 1926 or under section 151Z of the Workers
Compensation Act 1987, the amount of compensation so
Page 4
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Amendment of Law Reform (Miscellaneous Provisions) Act 1965 Schedule 1
repayable is to be reduced to the same extent as the damages
recoverable by the claimant are reduced under section 9.
(3) If the cost of any medical or hospital treatment or ambulance
service for which the claimant's employer incurs liability under
section 10 of the Workers' Compensation Act 1926 or under
Division 3 of Part 3 of the Workers Compensation Act 1987
remains unpaid at the time the claimant recovers damages:
(a) the claimant's liability in respect of that cost is, as
between the claimant and the claimant's employer, to be
reduced to the same extent as the claimant's damages
are reduced under section 9, and
(b) the claimant's employer, despite the recovery of
damages and the provisions of section 151Z of the
Workers Compensation Act 1987, remains liable to pay
to the claimant the balance of that cost under section 10
of the Workers' Compensation Act 1926 or under
Division 3 of Part 3 of the Workers Compensation
Act 1987 (whichever is applicable).
Note. The Workers' Compensation Act 1926 has been repealed, but the
Act is given ongoing effect by the transitional provisions contained in the
Workers Compensation Act 1987.
11 Total damages to be recorded
If the damages recoverable by a claimant are subject to any
reduction under this Part, the court is to find and record the
total damages that would have been recoverable had there been
no contributory negligence by the claimant.
12 Contribution between joint tortfeasors
Section 5 of the Law Reform (Miscellaneous Provisions)
Act 1946 applies in any proceedings where two or more
persons are liable for damages in tort or would, if they had all
been sued, be so liable by virtue of this Part in respect of the
damage suffered by any person.
13 Compensation to relatives
(1) No action for damages for the benefit of dependants of a
deceased person under the Compensation to Relatives Act 1897
is defeated by the contributory negligence or breach of
statutory duty of the deceased person.
Page 5
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Schedule 1 Amendment of Law Reform (Miscellaneous Provisions) Act 1965
(2) The damages recoverable in such an action are not reduced by
reason of the contributory negligence or of the breach of
statutory duty of the deceased person.
14 Application of limitations periods
(1) This section applies to proceedings to which section 9 applies
if:
(a) the claimant suffered damage as the result partly of the
wrong of two or more persons, and
(b) one of those persons avoids liability to another of those
persons (or his or her personal representative) by
pleading the Limitation Act 1969 or any other
enactment limiting the time within which proceedings
may be taken.
(2) The person who avoids liability is not entitled to recover
damages or contribution from the other person or his or her
personal representative by virtue of section 9.
15 Apportionment by judge or jury
(1) If proceedings to which section 9 applies are tried by a judge
sitting without a jury, the judge is to make the apportionment
under section 9.
(2) If proceedings to which section 9 applies are tried by a judge
sitting with a jury, the jury is to determine the total damages
that would have been recoverable had there been no
contributory negligence by the claimant, and the extent to
which those damages are to be reduced.
16 Savings and transitional provisions
Schedule 1 has effect.
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Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Amendment of Law Reform (Miscellaneous Provisions) Act 1965 Schedule 1
[4] Schedule
Omit the Schedule. Insert instead:
Schedule 1 Savings and transitional provisions
(Section 16)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Law Reform (Miscellaneous Provisions) Amendment Act 2000
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the Gazette,
the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Part 2 Provisions consequent on the Law Reform
(Miscellaneous Provisions) Amendment
Act 2000
2 Definitions
In this Part:
the amending Act means the Law Reform (Miscellaneous
Provisions) Amendment Act 2000.
Page 7
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Schedule 1 Amendment of Law Reform (Miscellaneous Provisions) Act 1965
3 Amendments concerning contributory negligence to have
retrospective application
(1) Subject to subclause (2) and clause 4, the amendments to this
Act made by the amending Act are taken to apply to wrongs
that occurred before the commencement of those amendments
as if those amendments had been in force when the wrong
occurred.
(2) This Act, as in force immediately before the commencement of
the amendments made by the amending Act, continues to apply
to a wrong about which:
(a) a court has, before that commencement, given judgment
or made a decision (including a judgment or decision
about liability only), whether or not an appeal has been
made against that judgment or decision, or
(b) the persons responsible for the damage have, before that
commencement, entered into an agreement to settle
claims arising from the wrong (including an agreement
about liability only).
4 Pending court proceedings
(1) This clause applies to proceedings before a court concerning a
wrong that:
(a) were instituted before the commencement of the
amending Act, and
(b) have not been finally determined by the court before
that commencement.
(2) Proceedings to which this clause applies are to be determined
as if the amending Act had not been enacted.
(3) Accordingly, any rules, regulations or other law that would
have been applicable to the proceedings had the amending Act
not been enacted continue to apply to the proceedings as if that
Act had not been enacted.
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Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Companion Animals Act 1998 No 87
Section 28 Contributory negligence
Omit "taken to have been suffered as the result partly of the fault of the
owner of the dog and partly of the fault of the person suffering the damage"
from section 28 (1).
Insert instead "taken to have been suffered as the result partly of a wrong by
the owner of the dog and partly of the contributory negligence of the person
who suffered the damage".
2.2 District Court Act 1973 No 9
[1] Section 76 Amount recoverable
Omit "section 10" wherever occurring. Insert instead "Part 3".
[2] Section 76
Omit "if the successful party had not been at fault" wherever occurring.
Insert instead "if there had been no contributory negligence by the
successful party".
2.3 Motor Accidents Act 1988 No 102
Section 75 Contributory negligence--claims under the
Compensation to Relatives Act 1897
Omit "Section 10 (4)". Insert instead "Section 13".
Page 9
Law Reform (Miscellaneous Provisions) Amendment Bill 2000
Schedule 2 Amendment of other Acts
2.4 Motor Accidents Compensation Act 1999 No 41
Section 139 Contributory negligence--claims under the
Compensation to Relatives Act 1897
Omit "Section 10 (4)". Insert instead "Section 13".
2.5 Workers Compensation Act 1987 No 70
Section 151N Contributory negligence--generally
Omit "section 10 (4)" from section 151N (5). Insert instead "section 13".
Page 10
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