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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Civil Liability Amendment Bill 2003
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Long title replaced 2
5. Section 3 amended 2
6. Section 3A inserted 3
7. Section 4A inserted 5
8. Parts 1A, 1B, 1C, 1D and 1E inserted 5
9. Part 1F inserted 27
10. Part 2 heading replaced 31
11. Section 6 amended 32
12. Part 2 Division 2 heading replaced 32
13. Section 10A inserted 32
14. Law Reform (Contributory Negligence and
Tortfeasors' Contribution) Act 1947 amended 33
page i
186--3
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Civil Liability Amendment Bill 2003
A Bill for
An Act to amend the Civil Liability Act 2002 and to make a
consequential amendment to the Law Reform (Contributory
Negligence and Tortfeasors' Contribution) Act 1947.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Civil Liability Amendment
Act 2003.
page 1
Civil Liability Amendment Bill 2003
s. 2
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
5 3. The Act amended
The amendments in this Act are to the Civil Liability Act 2002*,
unless otherwise indicated.
[* Act No. 35 of 2002.]
4. Long title replaced
10 The long title is repealed and the following long title is inserted
instead --
"
An Act relating to various aspects of civil liability, to restrict
advertising legal services relating to personal injury, to
15 restrict touting, and for related purposes.
".
5. Section 3 amended
(1) Section 3 is amended by inserting the following definitions
before the definition of "personal injury damages" --
20 "
"harm" means harm of any kind, including the
following --
(a) personal injury;
(b) damage to property;
25 (c) economic loss;
"personal injury" includes --
(a) death;
(b) pre-natal injury;
page 2
Civil Liability Amendment Bill 2003
s. 6
(c) impairment of a person's physical or mental
condition; and
(d) disease;
".
5 (2) Section 3 is amended in the definition of "personal injury
damages" by deleting "the death of, or injury to, a person" and
inserting instead --
" personal injury to a person ".
6. Section 3A inserted
10 After section 3 the following section is inserted --
"
3A. Damages excluded from Act
(1) The provisions of this Act specified in the third column
of an item in the Table to this subsection do not apply
15 to damages of a class specified in the second column of
that item or to claims for, or awards of, such damages.
Table
Item Damages Provisions that
do not apply
1. Damages relating to personal injury caused Parts 1A, 1C,
by -- 1D, 1E and 2
(a) an unlawful intentional act that is (other than
done with an intention to cause section 10A).
personal injury to a person, whether
or not a particular person; or
(b) an intentional act the doing of which
is a sexual offence as defined in the
Evidence Act 1906 section 36A or
sexual conduct that is otherwise
unlawful.
page 3
Civil Liability Amendment Bill 2003
s. 6
Item Damages Provisions that
do not apply
2. Damages to which the Motor Vehicle (Third Parts 1C, 1E
Party Insurance) Act 1943 applies. and 2 (other than
section 10A and
Division 4).
3. Damages to which the Workers' Parts 1A, 1B,
Compensation and Rehabilitation Act 1981 1C, 1D, 1E
Part IV Division 2 applies and the class of and 2 (other than
damages referred to in section 93B(3a) of section 10A and
that Act. Division 4).
4. Damages relating to personal injury that Parts 1A (other
resulted from smoking or other use of than
tobacco products. sections 5A, 5B,
5C and 5D), 1B,
1D, 1E and 2
(other than
section 10A and
Division 4).
5. Damages under the Civil Aviation (Carriers' Parts 1A, 1B,
Liability) Act 1961 (including the applied 1C, 1D, 1E, 1F
provisions as defined in that Act). and 2.
6. Damages relating to personal injury that Parts 1A (other
resulted from the inhalation of asbestos. than
sections 5A, 5B,
5C and 5D), 1B,
1D, 1E and 2
(other than
section 10A and
Division 4).
(2) Regulations may amend the Table to subsection (1)
by --
(a) adding an item comprising --
(i) in the second column -- a class of
5 damages; and
page 4
Civil Liability Amendment Bill 2003
s. 7
(ii) in the third column -- provisions of this
Act;
or
(b) adding a provision of this Act to the third
5 column of an item.
".
7. Section 4A inserted
After section 4 the following section is inserted --
"
10 4A. Limited contracting out
(1) A written agreement signed by the parties to it may
contain an express provision by which a provision of
Part 1A, 1B, 1C, 1D, 1E or 1F is excluded, modified or
restricted and this Act does not limit or otherwise affect
15 the operation of that express provision.
(2) Subsection (1) applies to any provision of this Act
referred to in that subsection even if the provision
applies to liability in contract.
".
20 8. Parts 1A, 1B, 1C, 1D and 1E inserted
After section 5 the following Parts are inserted --
"
Part 1A -- Liability for harm caused by the
fault of a person
25 Division 1 -- Preliminary
5A. Application of Part
(1) Subject to sections 3A and 4A, this Part applies to any
claim for damages for harm caused by the fault of a
person unless this section states otherwise.
page 5
Civil Liability Amendment Bill 2003
s. 8
(2) This Part extends to a claim for damages for harm
caused by the fault of a person even if the damages are
sought to be recovered in an action for breach of
contract or any other action.
5 (3) This Part does not apply unless the harm giving rise to
the claim for damages arises out of an incident
happening on or after the commencement day.
(4) If in a claim for damages --
(a) it cannot be ascertained whether or not the
10 incident out of which personal injury arises
happened on or after the commencement day; and
(b) the symptoms of the injury first appeared on or
after the commencement day,
the incident is to be taken, for the purpose of
15 subsection (3), to have happened on or after the
commencement day.
(5) In this section --
"commencement day" means the day on which the
Civil Liability Amendment Act 2003 section 8
20 comes into operation.
Division 2 -- Duty of care
5B. General principles
(1) A person is not liable for harm caused by that person's
fault in failing to take precautions against a risk of
25 harm unless --
(a) the risk was foreseeable (that is, it is a risk of
which the person knew or ought to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the
30 person's position would have taken those
precautions.
page 6
Civil Liability Amendment Bill 2003
s. 8
(2) In determining whether a reasonable person would
have taken precautions against a risk of harm, the court
is to consider the following (amongst other relevant
things) --
5 (a) the probability that the harm would occur if
care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the
risk of harm;
10 (d) the social utility of the activity that creates the
risk of harm.
Division 3 -- Causation
5C. General principles
(1) A determination that the fault of a person (the
15 "tortfeasor") caused particular harm comprises the
following elements --
(a) that the fault was a necessary condition of the
occurrence of the harm ("factual causation");
and
20 (b) that it is appropriate for the scope of the
tortfeasor's liability to extend to the harm so
caused ("scope of liability").
(2) In determining in an appropriate case, in accordance
with established principles, whether a fault that cannot
25 be established as a necessary condition of the
occurrence of harm should be taken to establish factual
causation, the court is to consider (amongst other
relevant things) --
(a) whether and why responsibility for the harm
30 should, or should not, be imposed on the
tortfeasor; and
page 7
Civil Liability Amendment Bill 2003
s. 8
(b) whether and why the harm should be left to lie
where it fell.
(3) If it is relevant to the determination of factual causation
to determine what the person who suffered harm (the
5 "injured person") would have done if the tortfeasor
had not been at fault --
(a) subject to paragraph (b), the matter is to be
determined by considering what the injured
person would have done if the tortfeasor had
10 not been at fault; and
(b) evidence of the injured person as to what he or
she would have done if the tortfeasor had not
been at fault is inadmissible.
(4) For the purpose of determining the scope of liability,
15 the court is to consider (amongst other relevant things)
whether and why responsibility for the harm should, or
should not, be imposed on the tortfeasor.
5D. Onus of proof
In determining liability for damages for harm caused
20 by the fault of a person, the plaintiff always bears the
onus of proving, on the balance of probabilities, any
fact relevant to the issue of causation.
Division 4 -- Recreational activities
5E. Interpretation
25 In this Division --
"dangerous recreational activity" means a
recreational activity that involves a significant risk
of harm;
"inherent risk" means a risk of something occurring
30 that cannot be avoided by the exercise of
reasonable skill and care;
page 8
Civil Liability Amendment Bill 2003
s. 8
"obvious risk" has the meaning given by section 5F;
"recreational activity" includes --
(a) any sport (whether or not the sport is an
organised activity);
5 (b) any pursuit or activity engaged in for
enjoyment, relaxation or leisure; and
(c) any pursuit or activity engaged in for
enjoyment, relaxation or leisure at a place
(such as a beach, park or other public open
10 space) where people ordinarily engage in
sport or in any pursuit or activity for
enjoyment, relaxation or leisure.
5F. Meaning of obvious risk
(1) For the purposes of this Division, an obvious risk to a
15 person who suffers harm is a risk that, in the
circumstances, would have been obvious to a
reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter
of common knowledge.
20 (3) A risk of something occurring can be an obvious risk
even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a
condition or circumstance that gives rise to the risk) is
not prominent, conspicuous or physically observable.
25 5G. Application of Division
(1) This Division applies only in respect of liability for
harm resulting from a recreational activity.
(2) This Division does not limit the operation of Division 6
in respect of a recreational activity.
page 9
Civil Liability Amendment Bill 2003
s. 8
5H. No liability for harm from obvious risks of
dangerous recreational activities
(1) A person (the "defendant") is not liable for harm
caused by the defendant's fault suffered by another
5 person (the "plaintiff") while the plaintiff engaged in a
dangerous recreational activity if the harm is the result
of the occurrence of something that is an obvious risk
of that activity.
(2) This section applies whether or not the plaintiff was
10 aware of the risk.
(3) This section does not apply if --
(a) the plaintiff has requested advice or
information about the risk from the defendant;
or
15 (b) the defendant is required by a written law to
warn the plaintiff of the risk.
(4) Subsection (3) does not give rise to a presumption of a
duty to warn of a risk in the circumstances referred to
in that subsection.
20 5I. No liability for recreational activity where risk
warning
(1) Subject to this section, a person (the "defendant")
does not owe a duty of care to another person who
engages in a recreational activity (the "plaintiff ") to
25 take care in respect of a risk of the activity if the risk
was the subject of a risk warning to the plaintiff.
(2) If a child suffers harm, the defendant may rely on a risk
warning to a parent of the child if the parent is not an
incompetent person --
30 (a) whether or not the child was accompanied by
the parent; and
page 10
Civil Liability Amendment Bill 2003
s. 8
(b) whether or not the child was under the control
of the parent.
(3) If a child suffers harm, the defendant may rely on a risk
warning to another person who is not a parent of the
5 child if --
(a) the other person is not an incompetent person;
and
(b) either --
(i) the child was accompanied by that other
10 person; or
(ii) the child was under the control of that
other person.
(4) For the purpose of subsections (1), (2) and (3), a risk
warning to a person in relation to a recreational activity
15 is a warning that is given in a manner that is reasonably
likely to result in people being warned of the risk
before engaging in the recreational activity.
(5) The defendant is not required to establish that the
person received or understood the warning or was
20 capable of receiving or understanding the warning.
(6) A risk warning can be given orally or in writing
(including by means of a sign or otherwise).
(7) A risk warning need not be specific to the particular
risk and can be a general warning of risks that include
25 the particular risk concerned (so long as the risk
warning warns of the general nature of the particular
risk).
(8) A defendant is not entitled to rely on a risk warning
unless it is given by or on behalf of the defendant or by
30 or on behalf of the occupier of the place where the
recreational activity is engaged in.
page 11
Civil Liability Amendment Bill 2003
s. 8
(9) A defendant is not entitled to rely on a risk warning if
it is established (on the balance of probabilities) that
the harm concerned resulted from a contravention of a
written law, or a law of the Commonwealth, that
5 establishes specific practices or procedures for the
protection of personal safety.
(10) A defendant is not entitled to rely on a risk warning to
a person to the extent that the warning was contradicted
by any representation as to risk made by or on behalf of
10 the defendant to the person.
(11) A defendant is not entitled to rely on a risk warning if
the plaintiff was required to engage in the recreational
activity by the defendant.
(12) A defendant is not entitled to rely on a risk warning if
15 it is established (on the balance of probabilities) that
the harm concerned resulted from an act done or
omission made with reckless disregard, with or without
consciousness, for the consequences of the act or
omission.
20 (13) A defendant is not entitled to rely on a risk warning to
an incompetent person.
(14) The fact that a risk is the subject of a risk warning does
not of itself mean --
(a) that the risk is not an obvious risk or inherent
25 risk of an activity; or
(b) that a person who gives the risk warning owes a
duty of care to a person who engages in an
activity to take precautions to avoid the risk of
harm from that activity.
30 (15) This section does not limit or otherwise affect the
effect of a risk warning in respect of a risk of an
activity that is not a recreational activity.
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Civil Liability Amendment Bill 2003
s. 8
(16) In this section --
"child" means a person who has reached 16 years but
is under 18 years of age;
"incompetent person" means a person who is under
5 18 years of age or who, because of a physical or
mental disability, lacks the capacity to understand
the risk warning.
5J. Waiver of contractual duty of care for recreational
activities
10 (1) Despite any written law or other law of the State, a
term of a contract for the supply of recreational
services may exclude, restrict or modify any liability to
which this Division applies that results from breach of
an express or implied warranty that the services will be
15 rendered with reasonable care and skill.
(2) No written law renders such a term of a contract void
or unenforceable or authorises any court to refuse to
enforce the term, to declare the term void or to vary the
term.
20 (3) A term of a contract for the supply of recreational
services that is to the effect that a person to whom
recreational services are supplied under the contract
engages in any recreational activity concerned at his or
her own risk operates to exclude any liability to which
25 this Division applies that results from breach of an
express or implied warranty that the services will be
rendered with reasonable care and skill.
(4) This section applies in respect of a contract for the
supply of services entered into before or after the
30 commencement of this section but does not apply in
respect of a breach of warranty that occurred before
that commencement.
page 13
Civil Liability Amendment Bill 2003
s. 8
(5) This section does not apply if it is established (on the
balance of probabilities) that the harm concerned
resulted from a contravention of a written law, or a law
of the Commonwealth, that establishes specific practices
5 or procedures for the protection of personal safety.
(6) This section does not apply if it is established (on the
balance of probabilities) that the harm concerned
resulted from an act done or omission made with
reckless disregard, with or without consciousness, for
10 the consequences of the act or omission.
(7) In this section --
"recreational services" means services supplied to a
person for the purposes of, in connection with or
incidental to the pursuit by the person of a
15 recreational activity.
Division 5 -- Contributory negligence
5K. Standard of contributory negligence
(1) The principles that are applicable in determining
whether a person is liable for harm caused by the fault
20 of the person also apply in determining whether the
person who suffered harm has been contributorily
negligent in failing to take precautions against the risk
of that harm.
(2) For that purpose --
25 (a) the standard of care required of the person who
suffered harm is that of a reasonable person in
the position of that person; and
(b) the matter is to be determined on the basis of
what that person knew or ought to have known
30 at the time.
page 14
Civil Liability Amendment Bill 2003
s. 8
5L. Presumption if person who suffers harm is
intoxicated
(1) This section applies when it is established that the
person whose harm is the subject of proceedings for the
5 recovery of damages for that harm was intoxicated at
the time of the act or omission that caused the harm.
(2) This section does not apply in a case where the court is
satisfied that the intoxication was not self-induced.
(3) If this section applies, it is to be presumed that the
10 person was contributorily negligent unless the plaintiff
establishes, on the balance of probabilities, that the
person's intoxication did not contribute in any way to
the cause of the harm.
(4) In this section --
15 "intoxicated" means affected by alcohol or a drug or
other substance capable of intoxicating a person to
such an extent that the person's capacity to
exercise reasonable care and skill is impaired.
Division 6 -- Assumption of risk
20 5M. Meaning of terms used in this Division
In this Division --
"obvious risk" has the meaning given by section 5E.
5N. Injured person presumed to be aware of obvious
risk
25 (1) In determining liability for damages for harm caused
by the fault of a person, the person who suffers harm is
presumed to have been aware of the risk of harm if it
was an obvious risk, unless the person proves on the
balance of probabilities that he or she was not aware of
30 the risk.
page 15
Civil Liability Amendment Bill 2003
s. 8
(2) For the purpose of this section, a person is aware of a
risk if the person is aware of the type or kind of risk,
even if the person is not aware of the precise nature,
extent or manner of occurrence of the risk.
5 5O. No duty to warn of obvious risk
(1) A person (the "defendant") does not owe a duty of
care to another person (the "plaintiff") to warn of an
obvious risk to the plaintiff.
(2) This section does not apply if --
10 (a) the plaintiff has requested advice or
information about the risk from the defendant;
(b) the defendant is required by a written law to
warn the plaintiff of the risk; or
(c) the defendant is a professional and the risk is a
15 risk of harm to the plaintiff from the provision
of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a
duty to warn of a risk in the circumstances referred to
in that subsection.
20 5P. No liability for harm from inherent risk
(1) A person (the "defendant") is not liable for harm
caused by the fault of that person suffered by another
person if the harm is the result of the occurrence of
something that cannot be avoided by the exercise of
25 reasonable skill and care by the defendant.
(2) This section does not operate to exclude liability in
connection with a duty to warn of a risk.
page 16
Civil Liability Amendment Bill 2003
s. 8
Part 1B -- Mental harm
5Q. Interpretation
In this Part --
"consequential mental harm" means mental harm
5 that is a consequence of a personal injury of any
kind;
"mental harm" means impairment of a person's
mental condition;
"pure mental harm" means mental harm other than
10 consequential mental harm.
5R. Application of Part
(1) Subject to sections 3A and 4A, this Part applies to any
claim for personal injury damages for mental harm
unless this section states otherwise.
15 (2) This Part extends to a claim for personal injury
damages even if the damages are sought to be
recovered in an action for breach of contract or any
other action.
(3) This Part does not apply unless the personal injury
20 giving rise to the claim for personal injury damages
arises out of an incident happening on or after the
commencement day.
(4) If --
(a) it cannot be ascertained whether or not the
25 incident out of which the personal injury arises
happened on or after the commencement day;
and
(b) the symptoms of the injury first appeared on or
after the commencement day,
page 17
Civil Liability Amendment Bill 2003
s. 8
the incident is to be taken, for the purpose of
subsection (3), to have happened on or after the
commencement day.
(5) In this section --
5 "commencement day" means the day on which
the Civil Liability Amendment Act 2003
section 8 comes into operation.
5S. Mental harm: duty of care
(1) A person (the "defendant") does not owe a duty of
10 care to another person (the "plaintiff ") to take care not
to cause the plaintiff mental harm unless the defendant
ought to have foreseen that a person of normal fortitude
might, in the circumstances of the case, suffer a
recognised psychiatric illness if reasonable care were
15 not taken.
(2) For the purpose of the application of this section in
respect of pure mental harm, the circumstances of the
case include the following --
(a) whether or not the mental harm was suffered as
20 the result of a sudden shock;
(b) whether the plaintiff witnessed, at the scene, a
person being killed, injured or put in peril;
(c) the nature of the relationship between the
plaintiff and any person killed, injured or put in
25 peril;
(d) whether or not there was a pre-existing
relationship between the plaintiff and the
defendant.
(3) For the purpose of the application of this section in
30 respect of consequential mental harm, the
circumstances of the case include the personal injury
suffered by the plaintiff.
page 18
Civil Liability Amendment Bill 2003
s. 8
(4) This section does not require the court to disregard
what the defendant knew or ought to have known about
the fortitude of the plaintiff.
5T. Liability for pecuniary loss for consequential
5 mental harm
A court cannot make an award of personal injury
damages for pecuniary loss for consequential mental
harm unless the harm consists of a recognised
psychiatric illness.
10 Part 1C -- Liability relating to public function
5U. Interpretation
In this Part --
"policy decision" means a decision based substantially
on financial, economic, political or social factors
15 or constraints;
"public body or officer" means --
(a) the Crown (within the meaning of the Crown
Suits Act 1947);
(b) a department of the Public Service
20 established under the Public Sector
Management Act 1994 section 35;
(c) an entity specified in column 2 of Schedule 1
to the Public Sector Management Act 1994;
(d) an organisation specified in column 2 of
25 Schedule 2 to the Public Sector Management
Act 1994;
(e) a non-SES organisation within the meaning
of that term in the Public Sector
Management Act 1994 section 3(1);
30 (f) a local government or a regional local
government;
page 19
Civil Liability Amendment Bill 2003
s. 8
(g) a body that is established or continued for a
public purpose under a written law;
(h) a body or officer prescribed (or of a class
prescribed) by the regulations as a public
5 body or officer to which this Part applies (in
respect of all or specified functions); or
(i) any person or body in respect of the exercise
of public or other functions of a class
prescribed by the regulations for the
10 purposes of this Part.
5V. Application of Part
(1) Subject to sections 3A and 4A, this Part applies to any
claim for damages for harm caused by the fault of a
person unless this section states otherwise.
15 (2) This Part extends to a claim for harm caused by the
fault of a person even if the damages are sought to be
recovered in an action for breach of contract or any
other action.
(3) This Part does not apply unless the harm giving rise to
20 the claim for damages arises out of an incident
happening on or after the commencement day.
(4) If in a claim for damages --
(a) it cannot be ascertained whether or not the
incident out of which the personal injury arises
25 happened on or after the commencement day;
and
(b) the symptoms of the injury first appeared on or
after the commencement day,
the incident is to be taken, for the purpose of
30 subsection (3), to have happened on or after the
commencement day.
page 20
Civil Liability Amendment Bill 2003
s. 8
(5) In this section --
"commencement day" means the day on which
the Civil Liability Amendment Act 2003
section 8 comes into operation.
5 5W. Principles concerning resources, responsibilities etc.
of a public body or officer
The following principles apply in determining whether
a public body or officer has a duty of care or has
breached a duty of care in proceedings in relation to a
10 claim to which this Part applies --
(a) the functions required to be exercised by the
public body or officer are limited by the
financial and other resources that are
reasonably available to the public body or
15 officer for the purpose of exercising those
functions;
(b) the general allocation of those resources by the
public body or officer is not open to challenge;
(c) the functions required to be exercised by the
20 public body or officer are to be determined by
reference to the broad range of its activities
(and not merely by reference to the matter to
which the proceedings relate);
(d) the public body or officer may rely on evidence
25 of its compliance with the general procedures
and applicable standards for the exercise of its
functions as evidence of the proper exercise of
its functions in the matter to which the
proceedings relate.
30 5X. Policy defence
In a claim for damages for harm caused by the fault of
a public body or officer arising out of fault in the
performance or non-performance of a public function,
page 21
Civil Liability Amendment Bill 2003
s. 8
a policy decision cannot be used to support a finding
that the defendant was at fault unless the decision was
so unreasonable that no reasonable public body or
officer in the defendant's position could have made it.
5 5Y. Proceedings against public body or officer based on
breach of a statutory duty
(1) This section applies to proceedings to which this Part
applies that are based on an alleged breach of a
statutory duty by a public body or officer in connection
10 with the exercise of or a failure to exercise a public
function of the body or officer.
(2) For the purpose of proceedings to which this section
applies, the public body or officer cannot be liable for
damages for harm caused by fault in the exercise of, or
15 a failure to exercise, the statutory duty unless the
provisions and policy of the enactment in which the
duty is created are compatible with the existence of that
liability.
5Z. Special protection for road authorities
20 (1) In this section --
"carry out road work" means carry out any activity in
connection with the construction, erection,
installation, maintenance, inspection, repair,
removal or replacement of a road;
25 "road" has the meaning given to that term in the Main
Roads Act 1930 section 6;
"roads authority", in relation to a road, means a
public body or officer whose functions include
carrying out road work on that road.
30 (2) A roads authority is not liable in proceedings to which
this Part applies for harm arising from a failure of the
authority to carry out road work, or to consider
page 22
Civil Liability Amendment Bill 2003
s. 8
carrying out road work, unless at the time of the failure
the authority had actual knowledge of the particular
risk that caused the harm.
(3) This section does not operate --
5 (a) to create a duty of care in respect of a risk
merely because a road authority has actual
knowledge of the risk; or
(b) to affect any standard of care that would
otherwise be applicable in respect of the risk.
10 5AA. Exercise of function or decision to exercise does not
create duty
In proceedings to which this Part applies, the fact that a
public body or officer exercises or decides to exercise a
function does not of itself indicate that the body or
15 officer is under a duty to exercise the function or that
the function should be exercised in particular
circumstances or in a particular way.
Part 1D -- Good samaritans
20 5AB. Interpretation
In this Part --
"emergency assistance" means --
(a) emergency medical assistance; or
(b) any other form of assistance to a person
25 whose life or safety is endangered in a
situation of emergency;
"good samaritan" means a natural person who, acting
without expectation of payment or other
consideration, comes to the aid of a person who is
30 apparently in need of emergency assistance;
page 23
Civil Liability Amendment Bill 2003
s. 8
"medical qualifications" means --
(a) registered under the Medical Act 1894;
(b) licensed, registered or authorised under a
written law to practise in some field of health
5 care; or
(c) qualifications as an ambulance officer or
other paramedic;
"medically qualified good samaritan" means a
natural person with medical qualifications who,
10 acting without expectation of payment or other
consideration, gives advice by any means of
communicating at a distance, including by
telephone, fax, email and radio, about the
treatment of a person who is apparently in need of
15 emergency assistance.
5AC. Application of this Part
(1) Subject to sections 3A and 4A, this Part applies to civil
liability of any kind unless this section states otherwise.
(2) This Part extends to a claim even if the damages are
20 sought to be recovered in an action for breach of
contract or any other action.
(3) This Part does not apply unless the civil liability giving
rise to the claim arises out of an incident happening on
or after the commencement day.
25 (4) If in a claim for damages --
(a) it cannot be ascertained whether or not the
incident out of which the personal injury arises
happened on or after the commencement day;
and
30 (b) the symptoms of the injury first appeared on or
after the commencement day,
page 24
Civil Liability Amendment Bill 2003
s. 8
the incident is to be taken, for the purpose of
subsection (3), to have happened on or after the
commencement day.
(5) This Part does not limit the protection from liability
5 given by another written law.
(6) In this section --
"commencement day" means the day on which
the Civil Liability Amendment Act 2003
section 8 comes into operation.
10 5AD. Protection of good samaritans
(1) A good samaritan does not incur any personal civil
liability in respect of an act or omission done or made
by the good samaritan at the scene of an emergency in
good faith and without recklessness in assisting a
15 person in apparent need of emergency assistance.
(2) A medically qualified good samaritan does not incur
any personal civil liability for advice given in good
faith and without recklessness about the assistance to
be given to a person in apparent need of emergency
20 assistance.
(3) This section does not affect the vicarious liability of
any person for the acts or omissions or advice of the
good samaritan or medically qualified good samaritan.
5AE. Exclusion from protection
25 The protection from personal civil liability conferred
by this Part does not apply if the ability of the good
samaritan or medically qualified good samaritan to
exercise reasonable care and skill, at the relevant time,
was significantly impaired by reason of the good
30 samaritan or medically qualified good samaritan being
intoxicated by alcohol or a drug or other substance
page 25
Civil Liability Amendment Bill 2003
s. 8
capable of intoxicating a person and the intoxication
was self-induced.
Part 1E -- Apologies
5AF. Interpretation
5 In this Part --
"apology" means an expression of sorrow, regret or
sympathy by a person that does not contain an
acknowledgment of fault by that person.
5AG. Application of this Part
10 (1) Subject to sections 3A and 4A, this Part applies to civil
liability of any kind unless this section states otherwise.
(2) This Part extends to a claim even if the damages are
sought to be recovered in an action for breach of
contract or any other action.
15 (3) This Part does not apply unless the civil liability giving
rise to the claim arises out of an incident happening on
or after the commencement day.
(4) If in a claim for damages --
(a) it cannot be ascertained whether or not the
20 incident out of which the personal injury arises
happened on or after the commencement day;
and
(b) the symptoms of the injury first appeared on or
after the commencement day,
25 the incident is to be taken, for the purpose of
subsection (3), to have happened on or after the
commencement day.
page 26
Civil Liability Amendment Bill 2003
s. 9
(5) In this section --
"commencement day" means the day on which
the Civil Liability Amendment Act 2003
section 8 comes into operation.
5 5AH. Effect of apology on liability
(1) An apology made by or on behalf of a person in
connection with any incident giving rise to a claim for
damages --
(a) does not constitute an express or implied
10 admission of fault or liability by the person in
connection with that incident; and
(b) is not relevant to the determination of fault or
liability in connection with that incident.
(2) Evidence of an apology made by or on behalf of a
15 person in connection with any incident alleged to have
been caused by the person is not admissible in any civil
proceeding as evidence of the fault or liability of the
person in connection with that incident.
".
20 9. Part 1F inserted
Before Part 2 the following Part is inserted --
"
Part 1F -- Proportionate liability
5AI. Interpretation
25 (1) In this Part --
"apportionable claim" means --
(a) a claim for economic loss or damage to
property in an action for damages (whether
in contract, tort or otherwise) arising from
30 the failure of 2 or more concurrent
page 27
Civil Liability Amendment Bill 2003
s. 9
wrongdoers to exercise reasonable care (but
not including any claim arising out of
personal injury); or
(b) a claim for economic loss or damage to
5 property caused by conduct that was done in
contravention of the Fair Trading Act 1987
section 10 arising from the acts or omissions
of 2 or more concurrent wrongdoers;
"concurrent wrongdoer", in relation to a claim,
10 means a person who is one of 2 or more persons
whose acts or omissions caused, independently of
each other or jointly, the damage or loss that is the
subject of the claim.
5AJ. Application of Part
15 (1) For the purpose of this Part it does not matter that a
concurrent wrongdoer is insolvent, is being wound up
or has ceased to exist or died.
(2) This Part does not apply --
(a) to a claim for damages of a class that is
20 excluded from the operation of this Part by
section 3A; or
(b) to the extent that its operation is excluded,
modified or restricted in accordance with
section 4A.
25 (3) This Part applies only to causes of action that accrue
after the commencement of the Civil Liability
Amendment Act 2003 section 9.
5AK. Proportionate liability for apportionable claims
(1) In any proceedings involving an apportionable
30 claim --
(a) the liability of a defendant who is a concurrent
wrongdoer in relation to that claim is limited to
page 28
Civil Liability Amendment Bill 2003
s. 9
an amount reflecting that proportion of the
damage or loss claimed that the court considers
just having regard to the extent of the
defendant's responsibility for the damage or
5 loss; and
(b) the court may give judgment against the
defendant for not more than that amount.
(2) If proceedings involve both an apportionable claim and
a claim that is not an apportionable claim --
10 (a) liability for the apportionable claim is to be
determined in accordance with the provisions
of this Part; and
(b) liability for the other claim is to be determined
in accordance with the legal rules, if any, that
15 (apart from this Part) are relevant.
(3) In apportioning responsibility between defendants in
the proceedings --
(a) the court is to exclude that proportion of the
damage or loss in relation to which the plaintiff
20 is contributorily negligent under any relevant
law; and
(b) the court is to have regard to the comparative
responsibility of any concurrent wrongdoer
who is not a party to the proceedings.
25 (4) This section applies in proceedings involving an
apportionable claim whether or not all concurrent
wrongdoers are parties to the proceedings.
(5) A reference in this Part to a defendant in proceedings
includes any person joined as a defendant or other
30 party in the proceedings (except as a plaintiff) whether
joined under this Part, under rules of court or
otherwise.
page 29
Civil Liability Amendment Bill 2003
s. 9
5AL. Contribution not recoverable from defendant
(1) A defendant against whom judgment is given under
this Part as a concurrent wrongdoer in relation to an
apportionable claim --
5 (a) cannot be required to contribute to the damages
or contribution recovered from another
concurrent wrongdoer in respect of an
apportionable claim (whether or not the
damages or contribution are recovered) in the
10 same proceedings in which judgment is given
against the defendant; and
(b) cannot be required to indemnify any such
wrongdoer.
(2) Subsection (1) does not affect an agreement by a
15 defendant to contribute to the damages recoverable
from or to indemnify another concurrent wrongdoer in
relation to an apportionable claim.
5AM. Subsequent actions
(1) In relation to an apportionable claim, nothing in this
20 Part or any other law prevents a plaintiff who has
previously recovered judgment against a concurrent
wrongdoer for an apportionable part of any damage or
loss from bringing another action against any other
concurrent wrongdoer for that damage or loss.
25 (2) In any proceedings in respect of any action referred to
in subsection (1) the plaintiff cannot recover an amount
of damages that, having regard to any damages
previously recovered by the plaintiff in respect of the
damage or loss, would result in the plaintiff receiving
30 compensation for damage or loss that is greater than
the damage or loss actually sustained by the plaintiff.
page 30
Civil Liability Amendment Bill 2003
s. 10
5AN. Joining non-party concurrent wrongdoers in the
action
(1) The court may give leave for any one or more persons
to be joined as defendants in proceedings involving an
5 apportionable claim.
(2) The court is not to give leave for the joinder of any
person who was a party to any previously concluded
proceedings in respect of the apportionable claim.
5AO. Part does not prevent other liability or operation of
10 other Act
Nothing in this Part --
(a) prevents a person from being held vicariously
liable for a proportion of any apportionable
claim for which another person is liable;
15 (b) prevents a partner from being held severally
liable with another partner for that proportion
of an apportionable claim for which the other
partner is liable; or
(c) affects the operation of any Act to the extent
20 that it imposes several liability on any person in
respect of what would otherwise be an
apportionable claim.
".
10. Part 2 heading replaced
25 The Part 2 heading is deleted and the following heading is
inserted instead --
"
Part 2 -- Awards of personal injury damages
".
page 31
Civil Liability Amendment Bill 2003
s. 11
11. Section 6 amended
(1) Section 6(1) is amended by deleting "This" and inserting
instead --
" Subject to section 3A, this ".
5 (2) Section 6(3) is repealed.
12. Part 2 Division 2 heading replaced
The Part 2 Division 2 heading is deleted and the following
heading is inserted instead --
"
10 Division 2 -- Damages for non-pecuniary loss
(general damages)
".
13. Section 10A inserted
After section 10 the following section is inserted in
15 Division 2 --
"
10A. Tariffs for damages for non-pecuniary loss
(1) In determining damages for non-pecuniary loss, a court
may refer to earlier decisions of that or other courts for
20 the purpose of establishing the appropriate award in the
proceedings.
(2) For that purpose, the parties to the proceedings or their
counsel may bring the court's attention to awards of
damages for non-pecuniary loss in those earlier
25 decisions.
(3) This section does not alter the rules for the
determination of other damages.
".
page 32
Civil Liability Amendment Bill 2003
s. 14
14. Law Reform (Contributory Negligence and Tortfeasors'
Contribution) Act 1947 amended
(1) The amendments in this section are to the Law Reform
(Contributory Negligence and Tortfeasors' Contribution)
5 Act 1947*.
[* Reprinted as at 2 August 2002.]
(2) Section 7(1) is amended by deleting "Where" and inserting
instead --
"
10 Subject to Part 1F of the Civil Liability Act 2002,
where
".
page 33
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