CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT 2002 - SCHEDULE 4
This legislation has been repealed.
CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT 2002 - SCHEDULE 4
SCHEDULE 4 – Amendment of other Acts
(Section 4 (2))
4.1 - Dust Diseases Tribunal Act 1989 No 63
Section 12A No limitation period
Omit section 12A (3) (a). Insert instead:
(a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and
4.2 - Environmental Planning and Assessment Act 1979 No 203
Section 109ZJ Apportionment of liability
Omit the section.
4.3 - Fair Trading Act 1987 No 68
[1] Section 68 Actions for damages
Insert after section 68 (1):
(1A) A reference to loss or damage in subsection (1) does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to:(a) the death of a person, or(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).
[2] Section 72 Other orders
Insert before section 72 (1):
(1A) A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to:(a) the death of a person, or(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).
[3] Schedule 1 Paramount legislation
Insert in alphabetical order:
Civil Liability Act 2002
4.4 - Health Care Liability Act 2001 No 42
Part 4 Provision of emergency health care--protection from liability
Omit the Part.
4.5 - Legal Profession Act 1987 No 109
Section 198C Interpretation and application
Omit the definition of
"personal injury damages" from section 198C (1).
Insert instead:
"personal injury damages" has the same meaning as in Part 2 of the Civil Liability Act 2002 .
4.6 - Limitation Act 1969 No 31
[1] Section 11A
Insert after section 11:
11A Notes Notes included in this Act do not form part of this Act.
[2] Section 18A Personal injury
Insert at the end of section 18A (1) (b):
, or
(c) a cause of action to which Division 6 applies.
[3] Section 18A (1)
Insert after section 18A (1):
Note: Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division.
[4] Section 19 Compensation to relatives
Insert at the end of section 19:
(2) This section does not apply in respect of a cause of action to which Division 6 applies.Note: Division 6 provides for the limitation period for causes of action for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division.
[5] Part 2, Division 6
Insert after Division 5 of Part 2:
Division 6 - Personal injury actions
50A Application of Division--kinds of causes of action(1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.(2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002 ).(3) This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999 .(4) This section extends to a cause of action that:(a) is a survivor action, or(b) is a compensation to relatives action.
50B Definitions In this Division:
"compensation to relatives action" means a cause of action that arises under the Compensation to Relatives Act 1897 .
"survivor action" means a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 .
50C Limitation period for personal injury actions(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:(a) the "3 year post discoverability limitation period", which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,(b) the "12 year long-stop limitation period", which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.Note: The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times:(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,(b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative.(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D Date cause of action is discoverable(1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts:(a) the fact that the injury or death concerned has occurred,(b) the fact that the injury or death was caused by the fault of the defendant,(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.(2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
50E Special limitation period for minors injured by close relatives(1) If a cause of action is founded on the death of or injury to a person ( "the victim") who was a minor at the time of the act or omission alleged to have resulted in that death or injury and the cause of action is against a person who at that time was a parent or guardian of the victim or a close associate of a parent or guardian of the victim:(a) the cause of action is for the purposes of this Division discoverable by the victim when the victim turns 25 years of age or when the cause of action is actually discoverable by the victim, whichever is the later, and(b) the 12 year long-stop limitation period for the cause of action is a period of 12 years running from when the victim turns 25 years of age.(2) A person is a "close associate" of a parent or guardian of the victim if the person is a person whose relationship with the parent or guardian is such that:(a) the parent or guardian might be influenced by the person not to bring a claim on behalf of the victim against the person, or(b) the victim might be unwilling to disclose to the parent or guardian the conduct or events in respect of which the cause of action is founded.(3) If the victim dies before turning 25 years of age, the limitation period applicable to a survivor action that survives on the death of the victim is to be determined as if references in this section to when the victim turns 25 years of age were references to the death of the victim.
50F Effect of disability on limitation period(1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.(2) A person is "under a disability" while the person:(a) is a minor, but not while the minor has a capable parent or guardian, or(b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.(3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.(4) In this section:
"capable parent or guardian" of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)).
"guardian" of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor.
"incapacitated person" means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:(a) any disease or any impairment of his or her physical or mental condition, or(b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990 , or(c) war or warlike operations or circumstances arising out of war or warlike operations."protected person" means:(a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or(b) a person in respect of whom an order is in force under the Protected Estates Act 1983 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the Protected Estates Act 1983 .(5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies.
[6] Part 3, Division 3, heading
Omit the heading. Insert instead:
Division 3 Personal injury cases arising before 2002 amendments
Personal injury cases arising before 2002 amendments
[7] Section 60A Purpose of this Subdivision
Insert at the end of section 60A:
This Subdivision does not apply to a cause of action to which Division 6 of Part 2 applies.
[8] Section 60B Subdivision applies only to new causes of action
Insert at the end of section 60B:
This Subdivision does not apply to a cause of action to which Division 6 of Part 2 applies.
[9] Part 3, Division 4
Insert after Division 3 of Part 3:
Division 4 - Personal injury cases arising after 2002 amendments
62A Extension of 12 year long-stop limitation period(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division.(2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.(3) If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of:(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and(b) section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.(4) The court may, in an order under this section in relation to a cause of action arising under the Compensation to Relatives Act 1897 , exclude any beneficiary or class of beneficiaries from the operation of the order, if it decides that it is just and reasonable to do so.(5) If a court excludes a beneficiary or class of beneficiaries from the operation of an order under this section, the beneficiary or beneficiaries are to be treated as not being entitled to damages in any action on a cause of action arising under the Compensation to Relatives Act 1897 brought as a consequence of the making of the order.
62B Matters to be considered in determining application for extension of 12 year long-stop limitation period(1) In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:(a) the length of and reasons for the delay,(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,(c) the nature and extent of the plaintiff's injury or loss,(d) any conduct of the defendant that induced the plaintiff to delay bringing the action,(e) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,(f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.(2) In the application of this section in respect of a cause of action that has survived on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 , references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.(3) In the application of this section in respect of a cause of action arising under the Compensation to Relatives Act 1897 , references in subsection (1) to the plaintiff include references to the deceased, the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.
62C Special provisions for compensation to relatives action(1) If a cause of action arises under the Compensation to Relatives Act 1897 (or would arise under that Act but for the expiration as against the deceased of a limitation period) and the cause of action of the deceased was not discoverable (within the meaning of Division 6 of Part 2) by the deceased before the death of the deceased, the court may (in addition to an order under section 62A) order that the expiration as against the deceased of a limitation period for the cause of action by the deceased has no effect in relation to an action brought by the applicant in that court on the cause of action claimed by the applicant.(2) If such an order is made and the person against whom the claimed cause of action lies brings an action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 , the expiration as against the deceased of a limitation period for the deceased's action has no effect in relation to the action for contribution.
62D Extension of limitation period where irrational failure to bring action for minor(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies who was a minor at the time of the act or omission alleged to have resulted in the injury or death with which the cause of action is concerned may apply to a court for the extension of a limitation period applicable to the cause of action on the basis that the failure to bring an action founded on the cause of action within that limitation period is attributable to an irrational decision by a parent or guardian of the person made after the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the parent or guardian.(2) If it appears to the court that:(a) the limitation period applicable to the cause of action expired before or within 1 year after the applicant reached 18 years of age, and(b) the failure to bring an action on the cause of action within that limitation period is attributable to an irrational decision by a parent or guardian of the applicant made while the applicant was a minor, and(c) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after the making of the court's order.(3) If a court orders the extension of a limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of:(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and(b) section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.
62E Costs Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under this Division may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period.
62F Effect of expiry of limitation period prior to extension(1) Applications and orders may be made under this Division as if Division 1 of Part 4 had never been in force.(2) An order under this Division in respect of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired.(3) If a limitation period that has expired is extended by order under this Division, that expiration of the limitation period has no effect for the purposes of this Act.
4.7 - Motor Accidents Act 1988 No 102
[1] Section 75 Contributory negligence--claims under the Compensation to Relatives Act 1897
Omit the section.
[2] Section 77 Damages for psychological or psychiatric injury
Omit the section.
4.8 - Motor Accidents Compensation Act 1999 No 41
[1] Section 139 Contributory negligence--claims under the Compensation to Relatives Act 1897
Omit the section.
[2] Section 141 Damages for psychological or psychiatric injury
Omit the section.
4.9 - State Emergency and Rescue Management Act 1989 No 165
Section 59
Omit the section. Insert instead:
59 Liability for actions of members of rescue units and volunteers(1) Anything done or omitted to be done by an accredited rescue unit or by a person as a member of an accredited rescue unit or authorised volunteer does not, if done or omitted in good faith in connection with a rescue operation or otherwise in response to an emergency, subject the accredited rescue unit, the person or any other person to any action, liability, claim or demand.(2) Anything done or omitted to be done by a casual volunteer does not, if done or omitted in good faith in connection with a rescue operation or otherwise in response to an emergency, subject the volunteer personally to any action, liability, claim or demand.(3) In this section:
"accredited rescue unit" includes:(a) a rescue unit (within the meaning of Division 4) engaged in surf life-saving, and(b) any organisation or agency (other than a government agency) that manages or controls an accredited rescue unit."authorised volunteer" means a person who assists an accredited rescue unit in carrying out a rescue operation with the consent of the person in charge of the rescue operation.
"casual volunteer" means a person who assists, on his or her own initiative, in a rescue operation or otherwise in response to an emergency in circumstances in which the assistance was reasonably given.