NORTHERN TERRITORY OF AUSTRALIA PERSONAL INJURIES (LIABILITIES AND DAMAGES) ACT As in force at 1 July 2008 TABLE OF PROVISIONS Part 1 Preliminary 1 Short title 1 2 Commencement 1 3 Definitions 1 4 Application of Act 2 5 Relationship with Compensation (Fatal Injuries) Act 3 6 Act binds Crown 4 Part 2 Liabilities for personal injuries Division 1 Exclusions and indemnities 7 Volunteers and community organisations 4 8 Good Samaritans 6 9 Occupier or owner of dwelling house or commercial premises 6 10 Criminal conduct of injured person 7 Division 2 Expressions of regret 11 Purpose of Division 7 12 Meaning of expression of regret 7 13 Expression of regret not admissible as evidence 8 Part 3 Contributory negligence 14 Presumption if injured person intoxicated 8 15 Presumption if reliance on intoxicated person 8 16 Evidentiary provisions 9 17 Amount of reduction if contributory negligence established 9 Part 4 Damages Division 1 Preliminary 18 Definitions 9 Division 2 General 19 No award of aggravated or exemplary damages 10 Division 3 Pecuniary loss 20 Damages for loss of earning capacity or financial support 10 21 Future pecuniary loss 11 22 Discount rate for future pecuniary loss 11 23 Gratuitous services 11 Division 4 Non-pecuniary loss 24 Purpose of Division 13 25 Damages other than for pecuniary loss 13 26 Assessment of degree of impairment 13 27 Damages for non-pecuniary loss 14 28 Declaration of maximum amount of damages for non-pecuniary loss 15 Division 5 Interest 29 No interest on particular damages 15 30 Calculation of interest payable on damages 15 Division 6 Orders for structured settlements 31 Meaning of structured settlement 16 32 Court may make order for structured settlement 16 Part 5 Miscellaneous 33 Regulations 17 34 Regulations may contain savings and transitional provisions 17 35 Transitional provisions 17 ENDNOTES NORTHERN TERRITORY OF AUSTRALIA ____________________ This reprint shows the Act as in force at 1 July 2008. Any amendments that commence after that date are not included. ____________________ PERSONAL INJURIES (LIABILITIES AND DAMAGES) ACT An Act to modify the law relating to the entitlement to damages for personal injuries, to clarify principles of contributory negligence, to fix reasonable limits on certain awards of damages for personal injuries, to provide for periodic payments of damages for personal injuries, and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Personal Injuries (Liabilities and Damages) Act. 2 Commencement This Act comes into operation on the date, or respective dates, fixed by the Administrator by notice in the Gazette. 3 Definitions In this Act, unless the contrary intention appears - act includes omission. claim means a claim for damages. claimant means a person making a claim. court means the court or tribunal in which a claim is made. damages means damages for a personal injury. incident means the incident, accident, circumstances or act alleged to have caused a personal injury. injured person means a person who suffers a personal injury. intoxicated means under the influence of alcohol or a drug to the extent that the capacity to exercise proper care and skill is significantly impaired. personal injury includes - (a) a fatal injury; (b) a prenatal injury; (c) a psychological or psychiatric injury; (d) a disease; and (e) the aggravation, exacerbation or acceleration of a pre-existing injury. proceeding means a proceeding in respect of a claim. respondent means a person from whom a claimant seeks damages. 4 Application of Act (1) This Act applies in relation to all civil claims for damages for personal injuries, other than those excluded by virtue of this section, whether the claims arise under the common law or a statute. (2) This Act, other than Part 4, Division 6, applies only in relation to a personal injury alleged to have been caused by an incident that occurs after the commencement of this Act. (3) The following claims are excluded from the application of this Act other than Part 4, Division 6: (a) a claim for benefits in respect of a death or an injury as a result of an accident within the meaning of the Motor Accidents (Compensation) Act; (b) a claim for compensation within the meaning of the Workers Rehabilitation and Compensation Act; (c) a claim for damages for a personal injury that is a dust-related condition; (e) a claim, in relation to the supply of certain goods, in respect of loss or damage in the nature of a personal injury that is referred to - (i) in section 26, 31, 37 or 39 of the Consumer Affairs and Fair Trading Act or in a substantially similar provision of consumer protection and fair trading legislation of a State or another Territory of the Commonwealth; or (ii) in section 65C, 65D or 65H of the Trade Practices Act 1974 of the Commonwealth. (4) The Regulations may exclude a claim or class of claim from the operation of this Act or a provision of this Act other than Part 4, Division 6. (5) In this section - dust-related condition means - (a) aluminosis, asbestosis, asbestos induced carcinoma, asbestos related pleural disease, bagassosis, berylliosis, byssinosis, coal dust pneumoconiosis, farmer's lung, hard metal pneumoconiosis, mesothelioma, silicosis, silico-tuberculosis or talcosis; or (b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust. 5 Relationship with Compensation (Fatal Injuries) Act (1) This Act does not limit the operation of the Compensation (Fatal Injuries) Act. (2) If an action is brought under the Compensation (Fatal Injuries) Act in relation to a person's death - (a) that occurs after the commencement of this Act; and (b) that is caused by a negligent act, Part 4 of this Act applies in addition to, and not in derogation of, section 10 of the Compensation (Fatal Injuries) Act in relation to the assessment of damages and the making of orders for the payment of damages. 6 Act binds Crown This Act binds the Crown in right of the Territory and, so far as the legislative power of the Legislative Assembly permits, the Crown in all its other capacities. Part 2 Liabilities for personal injuries Division 1 Exclusions and indemnities 7 Volunteers and community organisations (1) A volunteer does not incur personal civil liability for a personal injury caused by an act done in good faith and without recklessness while doing community work for a community organisation. (2) Subsection (1) does not apply if the volunteer - (a) knew, or ought reasonably to have known, that he or she was acting outside the scope of his or her authority or contrary to the instructions of the community organisation; or (b) did the act while intoxicated. (3) A community organisation - (a) incurs the civil liability that would, but for subsection (1), have been incurred by the volunteer doing work for that organisation; and (b) is liable for the personal injury caused by the act of the volunteer as if the volunteer were an employee of the community organisation. (4) Liability that would be incurred under subsection (3) by a community organisation that is an Agency or department of the Territory, if the Agency or department were a body corporate, is incurred by the Territory. (5) An agreement, undertaking or arrangement has no effect to the extent that it provides for a volunteer to give a community organisation an indemnity against, or to make a contribution to a community organisation in relation to - (a) a liability the volunteer would incur but for subsection (1); and (b) a liability the community organisation incurs under subsection (3). (6) If under this section a community organisation incurs civil liability for a personal injury, a member of the organisation's management committee (however described) does not incur personal liability for that injury. (7) In this section - community organisation means a religious body, a body corporate, or an Agency or department of the Territory, that organises, directs or supervises community work done by volunteers. community work means work done for any of the following purposes: (a) for a religious, educational, charitable or benevolent purpose; (b) for promoting or encouraging literature, science or the arts; (c) for the purposes of sport, recreation or amusement; (d) for conserving or protecting the environment; (e) for establishing, carrying on or improving a community, social or cultural centre; (f) for promoting the interests of a local community; (g) for a political purpose; (h) for any purpose prescribed by the Regulations, but does not include work done under a community work order made under the Sentencing Act, Youth Justice Act or Fines and Penalties (Recovery) Act. volunteer, in relation to a community organisation, means a person doing community work for that organisation - (a) who receives no remuneration for doing that work other than - (i) remuneration that the person would receive whether or not he or she did that work; or (ii) the reimbursement of reasonable expenses incurred by the person in doing that work; or (b) who receives remuneration that does not exceed the amount, if any, prescribed by the Regulations. 8 Good Samaritans (1) A good Samaritan does not incur personal civil liability for a personal injury caused by an act done in good faith and without recklessness while giving emergency assistance to a person. (2) A good Samaritan with medical qualifications does not incur personal civil liability for advice, given in good faith and without recklessness, about the treatment of a person being given emergency medical assistance. (3) This section does not apply if the good Samaritan was intoxicated while giving the assistance or advice. (4) In this section - emergency assistance means - (a) emergency medical assistance; or (b) any other form of assistance to a person whose life or safety is endangered in a situation of emergency. good Samaritan means - (a) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance; or (b) a person with medical qualifications who, acting without expectation of payment or other consideration, gives advice about the treatment of a person who is apparently in need of emergency medical assistance. medical qualifications means - (a) qualifications as a medical practitioner; (b) professional qualifications in a category of health care recognised by statute; or (c) qualifications as an ambulance officer or in another recognised paramedical capacity. 9 Occupier or owner of dwelling house or commercial premises (1) The occupier or owner of premises does not incur civil liability for a personal injury to a person who - (a) is entering or has entered the premises; and (b) has the intention of committing, is committing or has committed on those premises an offence punishable by imprisonment. (2) In this section - occupier means a person occupying or having control of the premises. 10 Criminal conduct of injured person (1) A person does not incur civil liability for a personal injury if the court is satisfied on the balance of probabilities - (a) that the injury occurred while the injured person was engaged in conduct constituting an offence punishable by imprisonment; and (b) that the injured person's conduct contributed materially to the risk of that injury. (2) Subsection (1) does not apply if the court is satisfied - (a) that the circumstances of the particular case are exceptional; and (b) that to exclude liability in the circumstances of that particular case would be harsh and unjust. Division 2 Expressions of regret 11 Purpose of Division The purpose of this Division is to enable a person to express regret about an incident that may have caused a personal injury without being concerned that the expression of regret may be construed or used in a proceeding as an admission of liability or negligence. 12 Meaning of expression of regret An expression of regret is an oral or written statement by a person - (a) that expresses regret for an incident that is alleged to have caused a personal injury; and (b) that does not contain an acknowledgement of fault by that person. 13 Expression of regret not admissible as evidence An expression of regret about a personal injury made at any time before the commencement of a proceeding in respect of that injury is not admissible as evidence in that proceeding. Part 3 Contributory negligence 14 Presumption if injured person intoxicated (1) In a proceeding, there is a presumption of contributory negligence if - (a) the injured person was intoxicated at the time of the incident alleged to have caused the personal injury to which the proceeding relates; and (b) the respondent alleges contributory negligence. (2) The presumption of contributory negligence is rebutted if the claimant establishes on the balance of probabilities that the injured person's intoxication - (a) did not materially contribute to the incident; or (b) was involuntary. 15 Presumption if reliance on intoxicated person (1) In a proceeding, there is a presumption of contributory negligence if - (a) at the time of the incident alleged to have caused the personal injury to which the proceeding relates, the injured person - (i) had attained 16 years of age; (ii) relied on the care and skill of another person who was intoxicated; and (iii) was aware, or ought to have been aware, that the other person was intoxicated; (b) the injury was caused by the negligence of the other person; and (c) the respondent alleges the contributory negligence of the injured person. (2) The presumption of contributory negligence is rebutted only if the claimant establishes on the balance of probabilities - (a) that the other person's intoxication did not materially contribute to the incident; or (b) that the injured person could not reasonably be expected to have avoided the risk that caused the injury. 16 Evidentiary provisions If, at or about the time of an incident, a person is found by a court to have present in his or her blood a concentration of alcohol of .08 or more grams in 100 millilitres of blood, that finding is to be accepted for the purposes of this Division as conclusive evidence of those facts and that the person was intoxicated at the time of the incident. 17 Amount of reduction if contributory negligence established If contributory negligence is established under this Division, the court must assess damages on the basis that the damages to which the claimant would be entitled in the absence of contributory negligence are to be reduced, because of contributory negligence, by 25% or a greater percentage determined by the court to be appropriate in the circumstances. Part 4 Damages Division 1 Preliminary 18 Definitions In this Part, unless the contrary intention appears - attendant care services means any of the following that are required for the essential and regular care of an injured person: (a) services of a domestic nature; (b) services relating to nursing; (c) services that aim to alleviate the consequences of a personal injury. average weekly earnings means the Average Weekly Earnings for Full Time Adult Persons, Weekly Ordinary Time Earnings for the Northern Territory as estimated and published by the Australian Statistician. gratuitous services means attendant care services provided, or to be provided, to an injured person and for which payment is not required. impairment means a loss, loss of use or derangement of any body part, organ system or organ function, or a combination of those impairments, but does not include a psychological or psychiatric injury prescribed by the Regulations. non-pecuniary loss means permanent impairment suffered as a consequence of a personal injury. permanent impairment means impairment that is assessed to be permanent impairment in accordance with the prescribed guides. prescribed guides means - (a) the guides prescribed by the Regulations; or (b) if no guides are prescribed by the Regulations - the American Medical Association Guides to the Evaluation of Permanent Impairment (as modified by any regulation) as published from time to time. Division 2 General 19 No award of aggravated or exemplary damages A court must not award aggravated damages or exemplary damages in respect of a personal injury. Division 3 Pecuniary loss 20 Damages for loss of earning capacity or financial support In assessing damages to be awarded for - (a) past pecuniary loss due to loss of earnings or the deprivation or impairment of earning capacity; (b) future pecuniary loss due to the deprivation or impairment of earning capacity; or (c) the loss of expectation of financial support, a court must disregard the amount (if any) by which the injured person's gross weekly earnings would, but for the personal injury, have exceeded an amount that is 3 times average weekly earnings as published before 1 January preceding the date on which the assessment is made. 21 Future pecuniary loss (1) A court may award damages for future pecuniary loss only if satisfied by the claimant that the assumptions about the injured person's future earning capacity, or the occurrence of other events on which the award is to be based, accord with the injured person's most likely future circumstances had the personal injury not occurred. (2) If a court is satisfied under subsection (1) about the claimant's assumptions, it must adjust the amount of damages for future pecuniary loss (as assessed on those assumptions) by reference to the percentage possibility that the events might have occurred regardless of the personal injury. (3) In awarding damages for future pecuniary loss, the court must state the assumptions on which the award is based and the relevant percentage by which damages have been adjusted. 22 Discount rate for future pecuniary loss (1) If a court awards damages that include a lump-sum component for future pecuniary loss, the amount of that component is to be assessed in accordance with discounted present values. (2) In this section - discounted present values means the calculation at the prescribed discount rate of the present value of the future pecuniary loss by the use of an actuarial multiplier. prescribed discount rate means - (a) the discount rate, expressed as a percentage, prescribed by the Regulations; or (b) if no discount rate is prescribed by the Regulations - the discount rate of 5%. 23 Gratuitous services (1) A court may award damages for the provision of gratuitous services only if the court is satisfied - (a) that there is or was a reasonable need for the services; (b) that the need for the services is or was solely because of the personal injury to which the damages relate; and (c) that the services would not be provided, or would not have been provided, but for the personal injury to which the damages relate. (2) A court may award damages for gratuitous services only if the services are provided or are to be provided - (a) for 6 hours or more per week; and (b) for 6 months or more. (3) If gratuitous services are provided or are to be provided for 40 or more hours per week, damages for the provision of those services are not to exceed average weekly earnings - (a) in respect of the whole or part of a quarter occurring between the date of the personal injury and the date of the award - for that quarter; or (b) in respect of the whole or part of any other quarter - for the most recent quarter occurring before the date of the award for which average weekly earnings have been published. (4) If gratuitous services are provided or are to be provided for less than 40 hours per week, damages for the provision of those services are not to exceed the amount calculated at an hourly rate of one-fortieth of the amount assessed in accordance with subsection (3)(a) or (b), as applicable. (5) In assessing damages for the provision of gratuitous services, the court must take into account - (a) any offsetting benefit the service provider obtains as a result of providing the services; and (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution. (6) This section does not affect any other law relating to the value of attendant care services except as provided by this section. Division 4 Non-pecuniary loss 24 Purpose of Division The purpose of this Division is - (a) to abolish common law principles relating to the assessment and awarding of damages for pain and suffering, loss of amenities of life, loss of expectation of life or disfigurement; and (b) to provide for the assessment and awarding of damages other than for pecuniary loss on the basis of the degree of permanent impairment suffered by the injured person. 25 Damages other than for pecuniary loss A court may award damages other than for pecuniary loss, or may refuse to award such damages, only in accordance with section 27 after determining the injured person's degree of permanent impairment in accordance with section 26. 26 Assessment of degree of impairment (1) A court, in determining the degree of permanent impairment suffered by an injured person, must do so on the basis of evidence adduced under this section. (2) The claimant and the respondent may each adduce evidence for the purposes of subsection (1). (3) Evidence of permanent impairment is to be given only by a medical practitioner who has assessed the degree of permanent impairment in accordance with the prescribed guides and any applicable regulation. (4) The Regulations may provide for any matters in relation to the assessment of permanent impairment suffered by an injured person, including the following: (a) the content of prescribed guides, including by modification of the American Medical Association Guides to the Evaluation of Permanent Impairment; (b) procedures relating to the assessment of permanent impairment; (c) the qualifications of medical practitioners who may give evidence under this section; (d) the costs in connection with the assessment of impairment. 27 Damages for non-pecuniary loss (1) The maximum amount of damages a court may award for non-pecuniary loss is - (a) on the commencement of this Part until the first declaration under section 28 takes effect - $350 000; and (b) at any time after the first declaration under section 28 takes effect - the amount declared and in force under section 28 at the time of the award. (2) A court must not award damages for non-pecuniary loss if the court determines the degree of permanent impairment to be less than 5% of the whole person. (3) When awarding damages for non-pecuniary loss, a court must award the following amount: (a) if the court determines the degree of permanent impairment to be 85% or more of the whole person - the maximum amount; (b) if the court determines the degree of permanent impairment to be not less than 15% and not more than 84% of the whole person - the relevant percentage of the maximum amount; (c) if the court determines the degree of permanent impairment to be a percentage of the whole person specified in column 1 of the Table - the amount specified in column 2 opposite the relevant percentage. TABLE Column 1 Column 2 Degree of permanent impairment as percentage of whole person Amount of damages to be awarded not less than 5% but less than 10% 2% of the maximum amount 10% 3% of the maximum amount 11% 4% of the maximum amount 12% 6% of the maximum amount 13% 8% of the maximum amount 14% 12% of the maximum amount (4) In subsection (3) - maximum amount means the maximum amount a court may award in accordance with subsection (1). 28 Declaration of maximum amount of damages for non-pecuniary loss (1) The amount applicable for section 27(1) is to be declared by the Minister on or before 1 October in each year subsequent to the year in which this Part commences. (2) The declaration is to be published in the Gazette and is to state the date on which the declaration takes effect. (3) The amount declared is the amount applicable under section 27(1) immediately before making the declaration, adjusted by the percentage change in average weekly earnings over the 4 quarters of the year preceding the year in which the declaration is made. (4) The amount declared is to be rounded to the nearest $500. (5) The validity of a declaration is not affected by - (a) a failure of the Minister to make the declaration on or before 1 October in any year; or (b) a failure to publish the declaration before the date on which it takes effect. Division 5 Interest 29 No interest on particular damages A court must not order the payment of interest on damages awarded for - (a) non-pecuniary loss; or (b) gratuitous services. 30 Calculation of interest payable on damages (1) If a court is satisfied that interest is payable on damages, the amount of interest - (a) is payable in respect of the period from when the relevant loss was first incurred until the date on which the court assesses the damages; and (b) is to be calculated, using the prescribed rate of interest, in accordance with the principles ordinarily applied by the court for that purpose. (2) In this section - prescribed rate of interest means - (a) the interest rate prescribed by the Regulations; or (b) if no interest is prescribed by the Regulations - the relevant interest rate as at the date of assessment of the damages. relevant interest rate means the rate representing the Commonwealth Government 10 year benchmark bond rate as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described) as applying - (a) on the first business day of January of each year in respect of an assessment of damages during the period from 1 March until 31 August of that year; or (b) on the first business day of July of each year in respect of an assessment of damages made during the period from 1 September of that year until the last day of February of the following year. Division 6 Orders for structured settlements 31 Meaning of structured settlement For the purposes of this Division - structured settlement means an order providing for the payment of all or part of an award of damages by one or both of the following means: (a) periodic payments funded by an annuity or other agreed means; (b) periodic payments in respect of future reasonable expenses for medical, hospital, pharmaceutical or attendant care services, payable as those expenses are incurred. 32 Court may make order for structured settlement The court may, with the consent of the parties to a proceeding, make an order for a structured settlement. Part 5 Miscellaneous 33 Regulations (1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters - (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Regulations may apply, adopt, incorporate or apply by reference (either wholly or in part or with or without modification) an instrument as in force at a particular time or as in force from time to time prescribed or published by an authority or body, whether or not a Territory authority or body. (3) An instrument applied, adopted or incorporated by the Regulations may require anything referred to in that instrument to be in accordance with another instrument to which that instrument refers. (4) In this section - instrument means a guide, standard, code, specification, method or other document. 34 Regulations may contain savings and transitional provisions (1) The Regulations may contain provisions of a transitional nature consequent on the enactment of this Act. (2) The Regulations may provide that a transitional provision takes effect from a date that is earlier than the date of its publication or notification in the Gazette but, if it does so, the provision does not operate so as - (a) to affect, in a manner prejudicial to any person (other than the Territory), the rights of that person existing before the date of its publication or notification; or (b) to impose liabilities on a person (other than the Territory) in respect of anything done or omitted to be done before the date of its publication or notification. 35 Transitional provisions (1) Section 7(5) does not apply in relation to a policy of insurance entered into before the commencement of that section. (2) Section 13 applies in relation to an expression of regret whether made before or after the commencement of that section and whether made in respect of a personal injury caused or alleged to have been caused by an incident that occurred before or after the commencement of that section. (3) Section 32 applies in relation to the making of an order for a structured settlement whether the proceeding in which the order is made commenced before or after the commencement of that section. ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Personal Injuries (Liabilities and Damages) Act 2003 (Act No. 3, 2003) Assent date 18 March 2003 Commenced 1 May 2003 (Gaz G17, 30 April 2003, p 3) Youth Justice (Consequential Amendments) Act 2005 (Act No. 33, 2005) Assent date 22 September 2005 Commenced 1 August 2006 (s 2, s 2 Youth Justice Act 2005 (Act No. 32, 2005) and Gaz G30, 26 July 2006, p 3) Justice legislation Amendment Act 2007 (Act No. 5, 2007) Assent date 24 April 2007 Commenced s 37 (except amd of Criminal Code and Legal Profession Act 2006): 1 May 2007 (s 2(1), s 2 Victims of Crime Assistance Act 2006 (Act No. 15, 2006) and Gaz G17, 26 April 2007, p 7); rem: 24 April 2007 Law Reform (Work Health) Amendment Act 2007 (Act No. 30, 2007) Assent date 12 December 2007 Commenced 1 July 2008 (Gaz S29, 25 June 2008) 3 LIST OF AMENDMENTS s 4 amd No. 5, 2007, s 37; No. 30, 2007, s 59 s 7 amd No. 33, 2005, s 5 s 10 amd No. 5, 2007, s 37 Personal Injuries (Liabilities and Damages) Act ii Personal Injuries (Liabilities and Damages) Act 18 ENDNOTES Personal Injuries (Liabilities and Damages) Act 19