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CIVIL LIABILITY ACT 2002 - As at 18 November 2021 - Act 22 of 2002

- As at 18 November 2021 - Act 22 of 2002

Table of Provisions

PART 1 - PRELIMINARY

  • 1 Name of Act
  • 2 Commencement
  • 3 Definitions
  • 3A Provisions relating to operation of Act
  • 3B Civil liability excluded from Act
  • 3C Act operates to exclude or limit vicarious liability
  • 4 Miscellaneous provisions

PART 1A - NEGLIGENCE

Division 1 - Preliminary

Division 2 - Duty of care

  • 5B General principles
  • 5C Other principles

Division 3 - Causation

  • 5D General principles
  • 5E Onus of proof

Division 4 - Assumption of risk

Division 5 - Recreational activities

Division 6 - Professional negligence

  • 5O Standard of care for professionals
  • 5P Division does not apply to duty to warn of risk

Division 7 - Non-delegable duties and vicarious liability

  • 5Q Liability based on non-delegable duty

Division 8 - Contributory negligence

PART 1B - CHILD ABUSE--LIABILITY OF ORGANISATIONS

Division 1 - Preliminary

Division 2 - Duty of organisations to prevent child abuse

  • 6D Organisations that are responsible for a child
  • 6E Individuals who are associated with organisations
  • 6F Liability of organisation for child abuse by associated individuals

Division 3 - Vicarious liability of organisations

  • 6G Employees include persons exercising functions akin to employees
  • 6H Organisations vicariously liable for child abuse perpetrated by employees

Division 4 - Proceedings against unincorporated organisations

  • 6I Objects of Division
  • 6J Definitions
  • 6K Child abuse proceedings may be commenced against unincorporated organisation
  • 6L Unincorporated organisation may appoint proper defendant
  • 6M Entities suitable to be appointed as proper defendant
  • 6N Court may appoint proper defendant
  • 6O Effect of appointment of proper defendant
  • 6P Special provisions applying when trustees of associated trust appointed

Division 5 - Rules

  • 6Q Rules of court

PART 1C - CHILD ABUSE--SETTING ASIDE SETTLEMENTS

  • 7A Definitions
  • 7B Object of Part
  • 7C Meaning of "affected agreement"
  • 7D Court may set aside affected agreement
  • 7E Court may also set aside other things
  • 7F Effect of setting aside affected agreement

PART 2 - PERSONAL INJURY DAMAGES

Division 1 - Preliminary

9, 10. (Repealed)

Division 2 - Fixing damages for economic loss

  • 12 Damages for past or future economic loss--maximum for loss of earnings etc
  • 13 Future economic loss--claimant's prospects and adjustments
  • 14 Damages for future economic loss--discount rate
  • 15 Damages for gratuitous attendant care services: general
  • 15A Damages for gratuitous attendant care services: dust-related conditions
  • 15B Damages for loss of capacity to provide domestic services
  • 15C Damages for loss of superannuation entitlements

Division 3 - Fixing damages for non-economic loss (general damages)

  • 16 Determination of damages for non-economic loss
  • 17 Indexation of maximum amount relating to non-economic loss
  • 17A Tariffs for damages for non-economic loss

Division 4 - Interest on damages

  • 18 Interest on damages

Division 5 - Third party contributions

  • 19 Third party contributions
  • 20. (Repealed)

Division 6 - Exemplary and similar damages

  • 21 Limitation on exemplary, punitive and aggravated damages

Division 7 - Structured settlements

  • 22 What is a structured settlement
  • 23 Court required to inform parties of proposed award
  • 24 Court may make consent order for structured settlement
  • 25 Obligation of Australian legal practitioners to provide advice
  • 26 Offer of structured settlement--legal costs

PART 2A - SPECIAL PROVISIONS FOR OFFENDERS IN CUSTODY

Division 1 - Preliminary

Division 1A - Duties of claimant for offender damages

  • 26BA Protected defendant must be given notice of incident giving rise to claim
  • 26BB Claimant must comply with requests for information
  • 26BC Vulnerable offenders
  • 26BD Dismissal of court proceedings for failure to give notice or co-operate on claim

Division 2 - Damages subject to 15% permanent impairment threshold

  • 26C No damages unless permanent impairment of at least 15%
  • 26D Assessment of permanent impairment

Division 3 - Damages for economic loss

  • 26E Damages for past or future loss of earnings
  • 26F Retirement age
  • 26G Future economic loss--assumption about release on parole

Division 4 - Damages for non-economic loss

  • 26H Restriction on damages for non-economic loss
  • 26I Non-economic loss damages limited to workers compensation amount

Division 5 - Victims support payments owed by offender

  • 26J Authority for deduction from damages

Division 6 - Offender damages trust funds

  • 26K Interpretation
  • 26L Offender damages to be held in trust as victim trust fund
  • 26M Victim trust fund available to satisfy eligible victim claims
  • 26N Notice to persons entitled to make victim claim
  • 26O Provision of information to persons entitled to claim
  • 26P Commencement of victim claims proceedings despite expiry of limitation period
  • 26Q Orders for payment of damages out of money held in trust for victims of offender
  • 26QA Court may deal with victim claim on the papers
  • 26R Payment to offender of trust fund surplus
  • 26S Functions of the NSW Trustee and Guardian
  • 26T Exception for legal costs
  • 26U Maximum legal costs of eligible claims
  • 26V Protection from liability
  • 26W Division overrides Part 7 Division 2

Division 7 - Miscellaneous

  • 26X Limitation on exemplary, punitive and aggravated damages against protected defendant in cases of vicarious liability

PART 3 - MENTAL HARM

  • 27 Definitions
  • 28 Application of Part
  • 29 Personal injury arising from mental or nervous shock
  • 30 Limitation on recovery for pure mental harm arising from shock
  • 31 Pure mental harm--liability only for recognised psychiatric illness
  • 32 Mental harm--duty of care
  • 33 Liability for economic loss for consequential mental harm

PART 4 - PROPORTIONATE LIABILITY

  • 34 Application of Part
  • 34A Certain concurrent wrongdoers not to have benefit of apportionment
  • 35 Proportionate liability for apportionable claims
  • 35A Duty of defendant to inform plaintiff about concurrent wrongdoers
  • 36 Contribution not recoverable from defendant
  • 37 Subsequent actions
  • 38 Joining non-party concurrent wrongdoer in the action
  • 39 Application of Part

PART 5 - LIABILITY OF PUBLIC AND OTHER AUTHORITIES

  • 40 Application of Part
  • 41 Definitions
  • 42 Principles concerning resources, responsibilities etc of public or other authorities
  • 43 Proceedings against public or other authorities based on breach of statutory duty
  • 43A Proceedings against public or other authorities for the exercise of special statutory powers
  • 44 When public or other authority not liable for failure to exercise regulatory functions
  • 45 Special non-feasance protection for roads authorities
  • 46 Exercise of function or decision to exercise does not create duty

PART 6 - INTOXICATION

  • 47 Part applies to civil liability for death, injury or property damage
  • 48 Definition of "intoxication"
  • 49 Effect of intoxication on duty and standard of care
  • 50 No recovery where person intoxicated

PART 7 - SELF-DEFENCE AND RECOVERY BY CRIMINALS

Division 1 - Limitations on damages

  • 51 Part applies to civil liability for death, injury or property damage
  • 52 No civil liability for acts in self-defence
  • 53 Damages limitations apply even if self-defence not reasonable response
  • 54 Criminals not to be awarded damages
  • 54A Damages limitations if loss results from serious offence committed by impaired person

Division 2 - Supervision of damages arising out of criminal conduct by persons with a mental health impairment or a cognitive impairment

  • 54B Definitions
  • 54C Application of Division
  • 54D Damages supervision orders
  • 54E Additional matters relating to damages supervision orders
  • 54F Estates under supervision of Protective Commissioner
  • 54G Hindering or obstructing NSW Trustee and Guardian
  • 54H Evidence of NSW Trustee and Guardian's right to act

PART 8 - GOOD SAMARITANS

  • 55 Application of Part
  • 56 Who is a good samaritan
  • 57 Protection of good samaritans
  • 58 Exclusion from protection

PART 8A - FOOD DONORS

  • 58A Interpretation
  • 58B Application of Part
  • 58C Protection of food donors

PART 9 - VOLUNTEERS

  • 59 Application of Part
  • 60 Definitions
  • 61 Protection of volunteers
  • 62 Liability not excluded for criminal acts
  • 63 Liability of intoxicated volunteer not excluded
  • 64 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions
  • 65 Liability not excluded if insurance required
  • 66 Liability not excluded for motor accidents

PART 10 - APOLOGIES

PART 11 - DAMAGES FOR THE BIRTH OF A CHILD

  • 70 Application of Part
  • 71 Limitation of the award of damages for the birth of a child

PART 12 - DAMAGE BY AIRCRAFT

  • 72 Trespass or nuisance by aircraft
  • 73 Surface damage by aircraft or articles falling from aircraft

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