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Civil Liability and Other Legislation Amendment Bill 2009
Civil Liability and Other Legislation
Amendment Bill 2009
Explanatory Notes
Objectives of the Bill
The objective of the Civil Liability and Other Legislation Amendment Bill
2009 is to improve the civil liability and personal injury regime in
Queensland.
The Bill includes amendments to the following:
· Civil Liability Act 2002 (CLA);
· Civil Liability Regulation 2003 (CLR);
· Law Reform Act 1995 (LRA);
· Limitation of Actions Act 1974 (LAA);
· Motor Accident Insurance Act 1994 (MAIA);
· Motor Accident Insurance Regulation 2004 (MAIR);
· Personal Injuries Proceedings Act 2002 (PIPA); and
· Personal Injuries Proceedings Regulation 2002 (PIPR).
Reasons for the Bill
The amendments contained in the Bill, which are in response to stakeholder
feedback, will:
· re-base and facilitate the future indexation of monetary amounts
in the CLA, the MAIA and the PIPA, including the legal costs
threshold and the caps on general damages;
· ensure that a de facto partner of an injured person can claim
damages for loss of consortium;
· remove the requirement in the PIPA that parties must sign a
certificate of readiness for trial prior to the compulsory
conference;
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Civil Liability and Other Legislation Amendment Bill 2009
· streamline the process under the PIPA if parties agree to the
urgent commencement of proceedings;
· abolish the statutory limitation period for dust-disease related
personal injury claims;
· reinstate damages for the loss of a claimant's capacity to provide
gratuitous domestic services (also known as Sullivan v. Gordon
damages);
· amend the definition of `community organisation' in section 38
of the CLA to ensure that a volunteer undertaking community
work for a Parents and Citizens Association is entitled to the
protection from liability provided by section 39; and
· clarify the operation of section 43 of the CLA.
Achievement of the Objectives
The Bill achieves the objectives by making the amendments to the
legislation as described below.
Estimated Cost for Government Implementation
Implementation of the Bill is not expected to result in any additional costs
to Government.
Consistency with Fundamental Legislative Principles
The proposed amendment to the LAA to abolish the statutory limitation
period for dust-disease related personal injury claims will have
retrospective operation if:
· judgment has not been given in relation to the action;
· the action has not been settled or discontinued; or
· an application to extend the limitation has not previously been
made.
While the retrospective removal of the statutory limitation period for
dust-related conditions may adversely affect insurers and defendants, the
amendment will mean that a person suffering from a dust-related condition
will no longer need to make an application to the court to extend the
limitation period before pursuing their claim. The retrospective removal of
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Civil Liability and Other Legislation Amendment Bill 2009
this hurdle will deliver significant benefits to those suffering from a
dust-related condition by improving their access to justice and reducing the
cost and stress associated with pursuing a claim. It is justified on the basis
that:
· many of the current cases of dust-related disease arise from
exposure to asbestos during the 1950s, 1960s and 1970s when
few, if any, adequate precautions were taken to protect workers
and others; and
· dust-related conditions are often characterised by a rapid onset of
symptoms, with death sometimes occurring within a very short
time from diagnosis.
In addition to the retrospective amendment, the Bill also includes
amendments to the CLA, the MAIA and the PIPA to allow certain
monetary amounts to be prescribed by regulation. While this may give rise
to a delegation of legislative power, these amendments are justified on the
basis that they are required in order to facilitate the annual indexation of the
amounts.
Consultation
Targeted consultation has been undertaken with the Queensland Law
Society, the Bar Association of Queensland, the Australian Lawyers'
Alliance, the Motor Accident Insurance Commission, the Insurance
Council of Australia and a number of insurance companies currently
operating in Queensland.
Notes on Provisions
Part 1 Preliminary
Clause 1 establishes the short title of the Act as the Civil Liability and
Other Legislation Amendment Act 2009.
Clause 2 provides for the commencement of the Act.
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Civil Liability and Other Legislation Amendment Bill 2009
Part 2 Amendment of Civil Liability Act
2003
Clause 3 provides that part 2 amends the Civil Liability Act 2003.
Clause 4 inserts a new subsection 5(3). This subsection ensures that
damages for gratuitous domestic services provided by an injured person
(refer to clause 10) are available to claimants who have suffered injuries
that:
· are dust-related; or
· result from smoking or other use of tobacco products or exposure
to tobacco smoke.
Clause 5 amends subsection 7(1). This amendment is required as a result
of the introduction of a new statutory cause of action by clause 10.
Clause 6 makes a minor amendment to the definition of `community
organisation' in section 38 to ensure that persons who undertake volunteer
work for a Parents and Citizens Association are entitled to the protection
from liability provided by section 39 of the Act.
Clause 7 clarifies the operation of section 43 of the CLA. Under this
section, a volunteer is not protected from personal liability if the liability is
a liability that is required under statute to be insured against. Clause 6
amends section 43 to clarify that the protection from liability is only
excluded where the statutory requirement to insure applies to the volunteer
as insured. An example of a statutory requirement that may apply to a
volunteer as insured is the requirement in the MAIA that a person must not
drive an uninsured vehicle.
Clause 8 amends subsection 58(1)(b) to allow the threshold for entitlement
to damages for loss of consortium or loss of servitium to be prescribed by
regulation. This will facilitate the future indexation of the amount in
accordance with proposed new section 75 (refer to clause 14 below).
Clause 9 makes minor consequential amendments to section 59 required as
a result of the following clause.
Clause 10 inserts a new section 59A. The purpose of new section 59A is to
partially re-instate damages for loss of an injured person's capacity to
provide gratuitous domestic services (also known as Sullivan v. Gordon
damages). This amendment is in response to the decision of the High
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Civil Liability and Other Legislation Amendment Bill 2009
Court in CSR Limited v Eddy [2005] HCA 64 which held that damages for
loss of capacity to provide gratuitous domestic services are not part of the
common law of Australia.
An example of damages that may be awarded under new section 59A is
damages for loss of an injured parent's capacity to care for their disabled
child.
Under new section 59A, damages for loss of an injured person's capacity to
provide gratuitous domestic services may only be awarded by a court if:
· the injured person died because of the injuries suffered or general
damages for the injured person are assessed at the amount
prescribed for section 58;
· the recipient was a member of the injured person's household
when the relevant injury happened;
· before the relevant injury happened the injured person provided
the services to the recipient;
· the recipient was, or will be, incapable of performing the services
personally because of their age or physical or mental incapacity;
· but for the injury, the injured person would have provided the
services for at least six hours per week for at least a period of six
months; and
· the need for the services is reasonable in all the circumstances.
The relevant time to assess whether the recipient was a member of the
injured person's household and whether the injured person previously
provided the services to the recipient is when the relevant injury happened.
If the symptoms of the injury are not immediately apparent, the relevant
injury is taken to have happened when the nature and extent of the injury
was known. For example, if the injury is mesothelioma, the relevant time
to assess whether the recipient was a member of the injured person's
household is at the time of diagnosis and not at the time of exposure to the
asbestos.
The purpose of the requirement that the recipient was not, or will not be,
capable of performing the services themselves is to ensure that the services
which the injured person has lost the capacity to provide are necessary. By
way of example, an adult child with no particular disabilities or
incapacities would be capable of cooking their own meals and doing their
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Civil Liability and Other Legislation Amendment Bill 2009
own washing and cleaning, notwithstanding that prior to the injury the
injured parent performed these tasks for them.
The purpose of the time requirements in new subsection 59A(2)(e) is to
ensure that section 59A damages are only awarded if the recipient has an
ongoing need for significant services. However, new subsections 59A(3)
and (4) will allow a court to disregard certain periods of time when the
recipient would have not have been in the care of the injured person when
determining whether the services would have been provided to the
recipient for at least six hours a week for a period of at least six months.
New section 59A makes special provision for unborn children of the
injured person.
It is not proposed to insert a definition for `domestic services'. The
particular domestic services that might be reasonable in a claim will
depend upon the circumstances of the case.
Clause 10 also inserts new sections 59B, 59C and 59D.
The purpose of new section 59B is to avoid double recovery for the same
loss by addressing potential overlap between section 59A damages and
other damages or compensation recovered or recoverable by the injured
person or the recipient. These other damages or compensation could
include:
· damages for gratuitous services provided to the injured person
(as limited by section 59 of the CLA);
· rehabilitation services paid by an insurer under the MAIA; and
· damages recovered by the recipient as part of a dependency
claim or loss of consortium action.
New subsection 59C(1) lists the factors a court must take into account
when deciding the value of any gratuitous services that the injured person
has lost the capacity to provide. Consistent with the common law, a court
will be required to take account of the claimant's capacity to provide the
services before the relevant injury happened and to make an allowance for
the vicissitudes or contingencies of life. For example, an injured person
who at the time the relevant injury happened was already suffering from
Parkinson's disease might reasonably be expected to have a declining
capacity to provide the services.
Under new subsection 59C(2), a court may award damages for those years
that an injured person would have provided the services but for the
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Civil Liability and Other Legislation Amendment Bill 2009
shortening of their life by reason of the wrongful act, neglect or default.
These years are sometimes referred to as the `lost years'.
New subsection 59C(4) ensures that a court cannot compensate an injured
person for loss of their capacity to provide gratuitous domestic services by
any other means, for example by way of an amount awarded as part of
general damages.
New section 59D will avoid double recovery for the same loss by
preventing a person, including a recipient, from recovering damages for a
loss if the injured person has previously recovered section 59A damages in
relation to that loss.
Clause 11 amends subsection 60(1) to clarify that a court cannot order the
payment of interest on an award of damages for gratuitous services
provided to an injured person.
Clause 12 amends sections 62 to allow the amounts used for the calculation
of general damages to be prescribed by regulation. This will facilitate the
future indexation of the amounts in accordance with proposed new section
75 (refer to clause 14 below).
Clause 13 amends section 64 to facilitate the annual indexation of the
threshold above which the court is required to inform parties of a proposed
award (so that parties can investigate the options and appropriateness of a
structured settlement).
Clause 14 inserts a new section 75 to outline the method by which annual
indexation should occur. Under proposed new subsection 75(2), monetary
amounts will be adjusted on 1 July each year by the percentage change in
average weekly earnings over the preceding 4 quarters.
Clause 15 inserts a transitional provision required as a result of the
amendments made in the previous clauses. Proposed new section 85 will
ensure that damages for an injured person's loss of capacity to provide
gratuitous domestic services are only available in relation to breaches of
duty that happen after 1 July 2010.
Clause 15 also inserts a new section 86 to clarify that the Bill does not
affect the power of Governor in Council to further amend the CLR or
repeal it.
Clause 16 inserts two new definitions required as a result of the
amendments made by the previous clauses.
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Civil Liability and Other Legislation Amendment Bill 2009
Part 3 Amendment of Civil Liability
Regulation 2003
Clause 17 provides that part 3 amends the Civil Liability Regulation 2003.
Clauses 18-20 amend the CLR to prescribe the monetary amounts
previously included in the CLA.
As a result of the amendments, for injuries occurring on and from 1 July
2010:
· the threshold amount for entitlement to damages for loss of
consortium (currently $30,000) and section 59A damages will be
$35,340;
· the amounts used in the calculation of general damages will be
increased by approximately 17.8%; and
· the threshold above which the court is required to inform parties of
a proposed award (currently $100,000) will be increased to
$117,800.
Part 4 Amendment of Law Reform Act
1995
Clause 21 provides that part 4 amends the Law Reform Act 1995.
At present, damages for loss or impairment of consortium are available to
the husband of an injured person under common law and to the wife of an
injured person under existing section 13 of the LRA.
Clause 22 amends section 13 of the LRA so that damages for loss or
impairment of consortium are available to the `spouse' of an injured
person. Under the Acts Interpretation Act 1954, the term `spouse' includes
a de-facto partner of an injured person.
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Civil Liability and Other Legislation Amendment Bill 2009
Part 5 Amendment of Limitation of
Actions Act 1974
Clause 23 provides that part 5 amends the Limitation of Actions Act 1974.
Clause 24 makes a minor consequential amendment required as a result of
the amendment in the following clause.
Clause 25 amends section 11 of the LAA to abolish the statutory limitation
period for personal injury resulting from a dust-related condition.
New subsection 11(3) ensures that the statutory limitation period still
applies to personal injury resulting from smoking or other use of tobacco
products or exposure to tobacco smoke.
Clauses 26-29 make minor consequential amendments.
Clause 30 inserts a transitional provision for the amendment made by
clause 25. The effect of the transitional provision is that the removal of the
statutory limitation period for dust-related conditions will apply to injuries
occurring both before and after commencement of the amendments
provided that:
· judgment has not been given in the action;
· the action has not been settled or discontinued; and
· there has not been a previous unsuccessful application to extend the
statutory limitation period.
Part 6 Amendment of Motor Accident
Insurance Act 1994
Clause 31 provides that part 6 amends the Motor Accident Insurance Act
1994.
Under sections 51C and 55F of the MAIA;
· if the mandatory final offer is $50,000 or less, the mandatory final
offer must be exclusive of costs;
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Civil Liability and Other Legislation Amendment Bill 2009
· if the mandatory final offer is more than $30,000 and less than
$50,000 there is a cap of $2,500 on the costs that can be
recovered; and
· there are limits on what costs are recoverable when a matter
proceeds to trial and the court awards $50,000 or less in damages.
Clauses 33 and 34 amend sections 51C and 55F of the MAIA so that:
· if the mandatory final offer is equal to or less than the `upper offer
limit', the mandatory final offer must be exclusive of costs;
· if the mandatory final offer is more than the `lower offer limit' but not
more than the `upper offer limit' there is a `declared costs limit'; and
· there are limits on what costs are recoverable when a matter proceeds to
trial and the court awards damages equal to or less than the `upper offer
limit'.
Clause 32 amends section 4 to insert a definition of `upper offer limit',
`lower offer limit' and `declared costs limit'. The terms are defined to
mean the amount prescribed under a regulation. This will facilitate the
annual indexation of the amounts in accordance with new section 100A
(refer to clause 35).
Clause 35 inserts a new section 100A to outline the method by which
annual indexation will occur. Under proposed new section 100A(2),
monetary amounts will be adjusted on 1 July each year by the percentage
change in average weekly earnings over the preceding 4 quarters.
Clause 36 clarifies that the Bill does not affect the power of Governor in
Council to further amend the MAIR or repeal it.
Part 7 Amendment of Motor Accident
Insurance Regulation 2004
Clause 37 provides that part 7 amends the Motor Accident Insurance
Regulation 2004.
Clauses 38 and 39 amend the MAIR to prescribe the monetary amounts
previously included in the PIPA.
As a result of the amendments, for injuries occurring after 1 July 2010:
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Civil Liability and Other Legislation Amendment Bill 2009
· the `upper offer limit' will be $58,900;
· the `lower offer limit' will be $35,340; and
· The `declared costs limit' will be $2,950.
Part 8 Amendment of Personal Injuries
Proceedings Act 2002
Clause 40 provides that part 8 amends the Personal Injuries Proceedings
Act 2002.
Clause 41 amends section 37 of the PIPA to remove the requirement that
parties must sign a certificate of readiness for trial prior to the compulsory
conference. This amendment will address concerns that a party cannot
certify that it is ready for trial prior to receipt of pleadings and the
completion of discovery and interrogatories.
Clause 42 amends section 40 of the PIPA so that:
· if the mandatory final offer is equal to or less than the `upper
offer limit', the mandatory final offer must be exclusive of costs;
and
· if the mandatory final offer is more than the `lower offer limit'
but not more than the `upper offer limit' there is a `declared costs
limit'.
Clause 43 makes a minor technical amendment required as a result of the
amendment in the following clause.
Clause 44 inserts a new section 44. Unlike existing section 43 which
requires the leave of the court, proposed new section 44 will provide a
mechanism for urgent proceedings to be started by agreement. Pursuant to
new subsection 43A(8), urgent proceedings started by agreement will be
stayed until such time as the claimant complies with the pre-court
procedures or the proceeding is discontinued or otherwise ends.
Clause 45 amends section 56 of the PIPA to allow the monetary amounts in
the section to be prescribed by regulation. This will facilitate the annual
indexation of the amounts in accordance with new section 75A (refer to
clause 46).
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Civil Liability and Other Legislation Amendment Bill 2009
Clause 46 inserts a new section 75A to outline the method by which annual
indexation will occur. Under proposed new subsection 75A(2), monetary
amounts will be adjusted on 1 July each year by the percentage change in
average weekly earnings over the preceding 4 quarters.
Clause 47 clarifies that the Bill does not affect the power of Governor in
Council to further amend the PIPR or repeal it.
Clause 48 amends the schedule to insert a definition of `upper offer limit',
and less than `lower offer limit' and `declared costs limit'. The terms are
defined to mean the amount prescribed under a regulation. This will
facilitate the annual indexation of the amounts in accordance with new
section 75A (refer to clause 46).
Part 9 Amendment of Personal Injuries
Proceedings Regulation 2002
Clause 49 provides that part 9 amends the Personal Injuries Proceedings
Regulation 2002.
Clauses 50 and 51 amend the PIPR to prescribe the amounts previously
included in the PIPA.
As a result of the amendments, for injuries occurring after 1 July 2010:
· the `upper offer limit' will be $58,900;
· the `lower offer limit' will be $35,340; and
· the `declared costs limit' will be $2,950.
© State of Queensland 2009
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