Tasmanian Bills Tasmanian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
CIVIL LIABILITY AMENDMENT BILL 2003
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 substituted
3. Interpretation
3A. Provisions relating to operation of Act
3B. Civil liability excluded from Act
3C. Application of Act to non-delegable duty
5. Section 4A inserted
4A. Application of Part 2
6. Section 5A inserted
5A. Application of Part 3
7. Section 6A inserted
6A. Application of Part 4
8. Section 7A inserted
7A. Application of Part 5
9. Part 6 substituted
PART 6 - Breach of Duty
Division 1 - Preliminary
9. Interpretation
10. Application of Part 6
Division 2 - Standard of care
11. General principles
12. Other principles
[Bill 46]-I
Division 3 - Causation
13. General principles
14. Onus of proof
Division 4 - Obvious risks
15. Meaning of "obvious risk"
16. Persons suffering harm presumed to be aware of
obvious risks
17. No proactive duty to warn of obvious risk
Division 5 - Dangerous recreational activities
18. Application of Division
19. Interpretation
20. No liability for harm suffered from obvious risks
of dangerous recreational activities
Division 6 - Professional negligence
21. Proactive and reactive duty of registered medical
practitioner to warn of risk
22. Standard of care for professionals
Division 7 - Contributory negligence
23. Standard of contributory negligence
PART 7 - Assessment of Damages for Personal Injury
or Death
24. Application of Part 7
25. Damages for loss of superannuation entitlements
26. Damages for loss of earning capacity
27. Restrictions on damages for non-economic loss
(general damages)
28. Tariffs for damages for non-economic loss
(general damages)
PART 8 - Mental Harm
29. Interpretation
30. Application of Part 8
31. Personal injury arising from mental or nervous
shock
32. Limitation on recovery for pure mental harm
arising from shock
33. Pure mental harm - liability only for recognised
psychiatric illness
34. Mental harm - duty of care
35. Liability for economic loss for consequential
mental harm
PART 9 - Liability of Public and Other Authorities
36. Application of Part 9
2
37. Interpretation
38. Principles concerning resources, responsibilities,
&c., of public or other authorities
39. No duty of care for recreational activity where
risk warning
40. Proceedings against public or other authorities
based on breach of statutory duty
41. When public or other authority not liable for
failure to exercise regulatory functions
42. Special non-feasance protection for failure to
carry out road work
43. Exercise of function or decision to exercise does
not create duty
PART 10 - Volunteers
44. Interpretation
45. Meaning of "volunteer"
46. Application of Part 10
47. Protection of volunteers from liability
48. Liability of community organisations
49. Certain indemnities, &c., have no effect
PART 11 - Miscellaneous
50. Regulations
10. Fair Trading Act 1990 amended
11. Wrongs Act 1954 amended
12. Application of amendments made by this Act
3
4
CIVIL LIABILITY AMENDMENT BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Civil Liability Act 2002, the
Fair Trading Act 1990 and the Wrongs Act 1954
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Civil Liability Amendment
Act 2003.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
Principal Act
3. In this Act, the Civil Liability Act 2002* is referred to
as the Principal Act.
*No. 54 of 2002
[Bill 46] 5
s. 4 No. Civil Liability Amendment 2003
Section 3 substituted
4. Section 3 of the Principal Act is repealed and the
following sections are substituted:
Interpretation
3. In this Act, unless the contrary intention
appears -
"court" includes tribunal and, in relation to a
claim for damages, means any court or
tribunal by or before which the claim
falls to be determined;
"damages" includes any form of monetary
compensation;
"duty" means -
(a) a duty of care in tort; or
(b) a duty of care under contract that
is co-extensive with a duty of care
in tort; or
(c) another duty under statute or
otherwise that is co-extensive with
a duty of care referred to in
paragraph (a) or (b);
"non-economic loss" means any one or more
of the following:
(a) pain or suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
(d) curtailment of life expectancy;
6
2003 Civil Liability Amendment No. s. 4
(e) bodily or mental harm;
"personal injury" includes -
(a) pre-natal injury; and
(b) impairment of a person's physical
or mental condition; and
(c) disease.
Provisions relating to operation of Act
3A. (1) This Act does not create or confer any cause
of civil action for the recovery of damages.
(2) A provision of this Act that gives protection
from civil liability does not limit the protection from
liability given by another provision of this Act or by
another Act or law.
(3) This Act, other than Part 7, does not
prevent the parties to a contract from making
express provision for their rights, obligations and
liabilities under the contract in relation to any
matter to which this Act applies and does not limit
or otherwise affect the operation of such an express
provision.
(4) Subsection (3) extends to any provision of
this Act even if the provision applies to liability in
contract.
(5) This Act is not a codification of the law
relating to civil claims for damages for harm.
Civil liability excluded from Act
3B. (1) This Act does not apply to or in respect of
civil liability -
7
s. 4 No. Civil Liability Amendment 2003
(a) in respect of an intentional act that is
done with intent to cause injury or death
or that is sexual assault or other sexual
misconduct; or
(b) relating to an award of damages for
personal injury or death where the
injury or death concerned resulted from
smoking or other use of tobacco
products.
(2) This Act, except Parts 2, 3 and 5,
Divisions 1, 2, 3, 4 and 7 of Part 6 and Parts 7 and 8,
does not apply to or in respect of civil liability
relating to an injury to which Part III of the Motor
Accidents (Liabilities and Compensation) Act 1973
applies.
(3) This Act does not apply to civil liability
relating to an injury to which Division 2 of Part X of
the Workers Rehabilitation and Compensation Act
1988 applies.
(4) This Act does not apply to liability for
compensation under the Workers Rehabilitation and
Compensation Act 1988, the Criminal Injuries
Compensation Act 1976 or the Anti-Discrimination
Act 1998 or a scheduled benefit under the Motor
Accidents (Liabilities and Compensation) Act 1973.
(5) The regulations may exclude a specified
class or classes of civil liability from the operation of
all or any provisions of this Act.
(6) Regulations referred to in subsection (5)
may make transitional provision with respect to
claims relating to acts or omissions which occurred
before the commencement of the regulations.
8
2003 Civil Liability Amendment No. s. 5
Application of Act to non-delegable duty
3C. This Act applies to a claim for damages for
breach of a non-delegable duty.
Section 4A inserted
5. Before section 5 of the Principal Act, the following
section is inserted in Part 2:
Application of Part 2
4A. This Part applies to civil liability of any kind for
damages for personal injury or death or damage to
property, except civil liability that is excluded from
the operation of this Part by section 3B.
Section 5A inserted
6. Before section 6 of the Principal Act, the following
section is inserted in Part 3:
Application of Part 3
5A. This Part applies to civil liability of any kind for
damages for personal injury or death or damage to
property, except civil liability that is excluded from
the operation of this Part by section 3B.
Section 6A inserted
7. Before section 7 of the Principal Act, the following
section is inserted in Part 4:
9
s. 8 No. Civil Liability Amendment 2003
Application of Part 4
6A. This Part applies to civil liability of any kind,
except civil liability that is excluded from the
operation of this Part by section 3B.
Section 7A inserted
8. Before section 8 of the Principal Act, the following
section is inserted in Part 5:
Application of Part 5
7A. This Part applies to civil liability of any kind for
damages for personal injury or death, except civil
liability that is excluded from the operation of this
Part by section 3B.
Part 6 substituted
9. Part 6 of the Principal Act is repealed and the following
Parts are substituted:
PART 6 - BREACH OF DUTY
Division 1 - Preliminary
Interpretation
9. In this Part, "harm" means harm of any kind,
including the following:
(a) personal injury or death;
(b) damage to property;
(c) pure economic loss.
10
2003 Civil Liability Amendment No. s. 9
Application of Part 6
10. This Part applies to civil liability of any kind for
damages for harm resulting from breach of duty,
except civil liability that is excluded from the
operation of this Part by section 3B.
Division 2 - Standard of care
General principles
11. (1) A person does not breach a duty to take
reasonable care unless -
(a) there was a foreseeable risk of harm
(that is, a risk of harm of which the
person knew or ought reasonably to have
known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable
person in the position of the person
would have taken precautions to avoid
the risk.
(2) In deciding whether a reasonable person
would have taken precautions against a risk of
harm, the court is to consider the following (among
other relevant things):
(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;
(d) the potential net benefit of the activity
that exposes others to the risk of harm.
11
s. 9 No. Civil Liability Amendment 2003
(3) For the purpose of subsection (2)(c), the
court is to consider the burden of taking precautions
to avoid similar risks of harm for which the person
may be responsible.
Other principles
12. In a proceeding relating to liability for breach of
duty -
(a) the fact that a risk of harm could have
been avoided by doing something in a
different way does not of itself give rise
to or affect liability for the way in which
the thing was done; and
(b) the subsequent taking of action that
(had the action been taken earlier)
would have avoided a risk of harm does
not of itself give rise to or affect liability
in relation to the risk and does not of
itself constitute evidence of liability in
connection with the risk.
Division 3 - Causation
General principles
13. (1) Prerequisites for a decision that a breach of
duty caused particular harm are as follows:
(a) the breach of duty was a necessary
element of the occurrence of the harm
("factual causation");
(b) it is appropriate for the scope of the
liability of the person in breach to
extend to the harm so caused ("scope of
liability").
12
2003 Civil Liability Amendment No. s. 9
(2) In deciding in an exceptional case, in
accordance with established principles, whether a
breach of duty, being a breach of duty that is
established but which can not be established as
satisfying subsection (1)(a), should be taken as
satisfying subsection (1)(a), the court is to consider
(among other relevant things) whether or not and
why responsibility for the harm should be imposed
on the party in breach.
(3) If it is relevant to deciding factual
causation to decide what the person who suffered
harm would have done if the person who was in
breach of the duty had not been so in breach -
(a) the matter is to be decided subjectively
in the light of all relevant circumstances,
subject to paragraph (b); and
(b) any statement made by the person after
suffering the harm about what he or she
would have done is inadmissible except
to the extent (if any) that the statement
is against his or her interest.
(4) For the purpose of deciding the scope of
liability, the court is to consider (among other
relevant things) whether or not and why
responsibility for the harm should be imposed on the
party who was in breach of the duty.
Onus of proof
14. In deciding liability for breach of a duty, the
plaintiff always bears the onus of proving, on the
balance of probabilities, any fact on which the
plaintiff wishes to rely relevant to the issue of
causation.
13
s. 9 No. Civil Liability Amendment 2003
Division 4 - Obvious risks
Meaning of "obvious risk"
15. (1) For the purpose of this Division, an
"obvious risk" to a 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.
(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.
(5) A risk is not an obvious risk merely
because a warning about the risk has been given.
Persons suffering harm presumed to be aware
of obvious risks
16. (1) If, in an action for damages for breach of
duty causing harm, a defence of voluntary
assumption of risk is raised by the defendant and
the risk is an obvious risk, the plaintiff is taken to
have been aware of the existence of the risk unless
the plaintiff proves, on the balance of probabilities,
that he or she was not aware of the existence of the
risk.
(2) For the purpose of this section, a person is
aware of the existence of a risk if the person is aware
14
2003 Civil Liability Amendment No. s. 9
of the existence 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.
No proactive duty to warn of obvious risk
17. (1) A person ("the defendant") does not owe a
duty to another person ("the plaintiff") to warn of an
obvious risk to the plaintiff.
(2) Subsection (1) does not apply if -
(a) the plaintiff has requested advice or
information about the risk from the
defendant; or
(b) the defendant is required by a written
law to warn the plaintiff of the risk; or
(c) the defendant is a professional, other
than a registered medical practitioner,
and the risk is a risk of the death of or
personal injury to the plaintiff from the
provision of a professional service to the
plaintiff by the defendant in the
defendant's professional capacity.
(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.
Division 5 - Dangerous recreational activities
Application of Division
18. (1) This Division applies only in respect of
liability for breach of duty resulting in harm to a
person from a dangerous recreational activity
engaged in by that person.
15
s. 9 No. Civil Liability Amendment 2003
(2) This Division does not limit the operation
of Division 4 in respect of a recreational activity.
Interpretation
19. In this Division -
"dangerous recreational activity" means a
recreational activity that involves a
significant degree of risk of physical
harm to a person;
"obvious risk" has the same meaning as it
has in Division 4;
"recreational activity" includes -
(a) any sport (whether or not the sport
is an organised activity); and
(b) any pursuit or activity engaged in
for enjoyment, relaxation or
leisure.
No liability for harm suffered from obvious
risks of dangerous recreational activities
20. (1) A person is not liable for a breach of duty for
harm suffered by another person ("the plaintiff") as a
result of the materialisation of an obvious risk of a
dangerous recreational activity engaged in by the
plaintiff.
(2) This section applies whether or not the
plaintiff was aware of the risk.
16
2003 Civil Liability Amendment No. s. 9
Division 6 - Professional negligence
Proactive and reactive duty of registered
medical practitioner to warn of risk
21. (1) A registered medical practitioner does not
breach a duty owed to a patient to warn of risk,
before the patient undergoes any medical treatment
(or at the time of the patient being given medical
advice) that will involve or give rise to a risk of
personal injury to the patient, unless the registered
medical practitioner at that time fails to give or
arrange to be given to the patient the information
about the risk (whether or not the patient asks for
information) -
(a) that a reasonable person in the patient's
position would, in the circumstances,
require to enable the person to make a
reasonably informed decision about
whether to undergo the treatment or
follow the advice; and
(b) that the registered medical practitioner
knows or ought reasonably to know the
patient wants to be given before making
the decision about whether to undergo
the treatment or follow the advice.
(2) This section does not apply where a
registered medical practitioner has to act promptly
to avoid serious risk to the life or health of the
patient and -
(a) the patient is not able to hear or respond
to a warning about the risk to the
patient; and
(b) there is not sufficient time for the
registered medical practitioner to
17
s. 9 No. Civil Liability Amendment 2003
contact a person responsible for making
a decision for the patient.
(3) In this section, "patient", when used in a
context of asking for or being given information,
includes a person who has the responsibility for
making a decision about the medical treatment to be
undergone by a patient if the patient is under a legal
disability.
Standard of care for professionals
22. (1) A person practising a profession ("a
professional") does not breach a duty arising from
the provision of a professional service if it is
established that the professional acted in a manner
that (at the time the service was provided) was
widely accepted in Australia by peer professional
opinion as competent professional practice.
(2) Peer professional opinion cannot be relied
on for the purpose of this section if the court
considers that the opinion is irrational.
(3) The fact that there are differing peer
professional opinions widely accepted in Australia
concerning a matter does not prevent any one or
more (or all) of those opinions being relied on for the
purpose of subsection (1).
(4) Peer professional opinion does not have to
be universally accepted to be considered widely
accepted.
(5) This section does not apply to liability
arising in connection with the giving of (or the
failure to give) a warning, advice or other
information in relation to the risk of harm associated
18
2003 Civil Liability Amendment No. s. 9
with the provision by a professional of a professional
service to a person.
Division 7 - Contributory negligence
Standard of contributory negligence
23. (1) The principles that are applicable in
determining whether a person has been negligent
also apply in determining whether the person who
suffered harm has been contributorily negligent for
the purpose of apportioning liability under section 4
of the Wrongs Act 1954.
(2) For the purpose of apportioning liability
under section 4 of the Wrongs Act 1954 -
(a) the standard of care required of the
person who suffered harm is that
required 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 at the time.
PART 7 - ASSESSMENT OF DAMAGES FOR
PERSONAL INJURY OR DEATH
Application of Part 7
24. This Part applies in relation to an award of
damages for personal injury or death resulting from
a breach of duty, except civil liability that is
excluded from the operation of this Part by
section 3B.
19
s. 9 No. Civil Liability Amendment 2003
Damages for loss of superannuation
entitlements
25. (1) The maximum amount of damages that may
be awarded for economic loss due to the loss of
employer superannuation contributions is the
relevant percentage of damages payable for the
deprivation or impairment of the earning capacity on
which the entitlement to those contributions is
based.
(2) In this section, "relevant percentage"
means the percentage of earnings that is the
minimum percentage required by law to be paid as
employer superannuation contributions.
Damages for loss of earning capacity
26. (1) Where a person is entitled to damages in
respect of loss of earning capacity, a court must not
award those damages on the basis the person was, or
may have been capable of, earning income at greater
than 4.25 times the adult average weekly earnings
as last published by the Australian Bureau of
Statistics before damages are awarded.
(2) In this section, "adult average weekly
earnings" means the dollar figure for full-time
adult ordinary time earnings for persons set out
under the heading "AVERAGE WEEKLY
EARNINGS, Australia: Original" in catalogue
number 6302.0 published by the Australian Bureau
of Statistics, as amended from time to time.
20
2003 Civil Liability Amendment No. s. 9
Restrictions on damages for non-economic loss
(general damages)
27. (1) If the amount of non-economic loss is
assessed to be not more than Amount A, no damages
are to be awarded for non-economic loss.
(2) If the amount of non-economic loss is
assessed to be more than Amount A but not more
than Amount B, damages awarded for non-economic
loss are calculated as follows:
(3) If the amount of non-economic loss is
assessed to be more than Amount B, damages
awarded for non-economic loss are an amount equal
to the amount assessed.
(4) For the purpose of this section -
(a) "Amount A" is -
(i) for the financial year ending on
30 June 2004, $4 000; and
(ii) for the financial year commencing
on 1 July 2004 and for each
subsequent financial year,
calculated in accordance with the
following formula and rounded off
in accordance with subsection (5):
where -
21
s. 9 No. Civil Liability Amendment 2003
"A" is the value in dollars of
Amount A for the relevant
financial year;
"Ao" is $4 000;
"C" is the value of the CPI figure
for Hobart for the March
quarter immediately
preceding the financial year
in which the threshold
amount is to apply;
"D" is the value of the CPI figure
for Hobart for the March
quarter 2003; and
(b) "Amount B" is five times Amount A.
(5) If the value of Amount A, calculated in
accordance with the formula specified in
subsection (4)(a), is not a multiple of $500, the
amount is to be rounded off to the nearest multiple
of $500, with an amount that is $250 more than a
multiple of $500 being rounded off to the next
highest multiple of $500.
(6) On or before 1 July 2004 and on or before 1
July in each subsequent year, the Minister is to
publish a notice in the Gazette specifying the
amounts that are Amount A and Amount B for the
financial year commencing on that 1 July.
(7) Publication under subsection (6) is for
public information only and a failure to publish or a
delay or error in publication does not affect what is
Amount A or Amount B for the year concerned.
(8) In this section, "CPI figure for Hobart"
means the Consumer Price Index: All Groups Index
Number for Hobart published by the Australian
22
2003 Civil Liability Amendment No. s. 9
Statistician under the authority of the Census and
Statistics Act 1905 of the Commonwealth.
Tariffs for damages for non-economic loss
(general damages)
28. (1) In determining damages for non-economic
loss, a court may refer to earlier decisions of that or
other courts for 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-economic
loss in those earlier decisions.
PART 8 - MENTAL HARM
Interpretation
29. In this Part -
"consequential mental harm" means
mental harm that is a consequence of a
personal injury of any other kind;
"mental harm" means impairment of a
person's mental condition;
"pure mental harm" means mental harm
other than consequential mental harm.
Application of Part 8
30. This Part (except section 31) applies to any
claim for damages for mental harm resulting from a
23
s. 9 No. Civil Liability Amendment 2003
breach of duty, except civil liability that is excluded
from the operation of this Part by section 3B.
Personal injury arising from mental or
nervous shock
31. In any civil proceedings for damages, the
plaintiff is not prevented from recovering damages
merely because the personal injury arose wholly or
in part from mental or nervous shock.
Limitation on recovery for pure mental harm
arising from shock
32. (1) This section applies to the liability of a
person ("the defendant") for pure mental harm to a
person ("the plaintiff") arising wholly or partly from
mental or nervous shock in connection with another
person ("the victim") being killed, injured or put in
peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover
damages for pure mental harm unless -
(a) the plaintiff witnessed, at the scene, the
victim being killed, injured or put in
peril or the immediate aftermath of the
victim being killed or injured; or
(b) the plaintiff is a close member of the
family of the victim.
(3) In this section -
"close member of the family" of a victim
means -
24
2003 Civil Liability Amendment No. s. 9
(a) a parent of the victim or other
person with parental
responsibility for the victim; or
(b) the spouse of the victim; or
(c) a child or stepchild of the victim or
any other person for whom the
victim has parental responsibility;
or
(d) a brother, sister, half-brother or
half-sister, or stepbrother or
stepsister of the victim;
"spouse" means -
(a) a husband or wife; or
(b) a de facto spouse -
but where more than one person would so
qualify as a spouse, means only the last person
to so qualify.
Pure mental harm - liability only for
recognised psychiatric illness
33. There is no liability to pay damages for pure
mental harm resulting from breach of duty unless
the harm consists of a recognised psychiatric illness.
Mental harm - duty of care
34. (1) A person ("the defendant") does not owe a
duty to another person ("the plaintiff") to take care
not to cause the plaintiff mental harm unless a
reasonable person in the position of the defendant
25
s. 9 No. Civil Liability Amendment 2003
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 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 the result of a sudden shock;
(b) 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 respect of consequential mental harm, the
circumstances of the case include the nature and
extent of personal injury suffered by the plaintiff.
(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.
Liability for economic loss for consequential
mental harm
35. A court cannot make an award of damages for
economic loss for consequential mental harm
resulting from breach of duty unless the harm
consists of a recognised psychiatric illness.
26
2003 Civil Liability Amendment No. s. 9
PART 9 - LIABILITY OF PUBLIC AND OTHER
AUTHORITIES
Application of Part 9
36. This Part applies to a claim of any kind for
damages for personal injury or death or damage to
property resulting from breach of duty, except civil
liability that is excluded from the operation of this
Part by section 3B.
Interpretation
37. In this Part -
"exercise" a function includes perform a duty;
"function" includes a power, authority or
duty;
"public or other authority" means -
(a) the Crown (within the meaning of
the Crown Proceedings Act 1993);
or
(b) a council; or
(c) a statutory authority; or
(d) a State-owned company; or
(e) a person or body prescribed (or of a
class prescribed) by the
regulations as an authority to
which this Part applies (in respect
of all or specified functions); or
27
s. 9 No. Civil Liability Amendment 2003
(f) any person or body undertaking
the exercise of public or other
functions of a class prescribed by
the regulations for the purpose of
this Part;
"State-owned company" means a company
incorporated under the Corporations Act
that is controlled -
(a) by the Crown, a Minister of the
Crown, a Government Business
Enterprise or a statutory
authority; or
(b) by another company that is so
controlled;
"statutory authority" means a body or
authority, whether incorporated or not,
that is established or constituted by or
under an Act or under the Royal
Prerogative, being a body or authority
which, or of which the governing
authority, wholly or partly comprises a
person or persons appointed by the
Governor, a Minister or another
statutory authority.
Principles concerning resources,
responsibilities, &c., of public or other
authorities
38. The following principles apply in determining
whether a public or other authority has a duty or
has breached a duty in proceedings to which this
Part applies:
28
2003 Civil Liability Amendment No. s. 9
(a) the functions required to be exercised by
the authority are limited by the financial
and other resources that are reasonably
available to the authority for the
purpose of exercising those functions;
(b) the reasonableness of the allocation of
those resources by the authority is not
open to challenge;
(c) the functions required to be exercised by
the authority 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 authority may rely on evidence of its
compliance with its general procedures
and any relevant standards for the
exercise of its functions as evidence of
the proper exercise of its functions in the
matter to which the proceedings relate.
No duty of care for recreational activity where
risk warning
39. (1) A public or other authority ("the authority")
does not owe a duty to a person who engages in a
recreational activity to take care in respect of a risk
of the activity if the risk was the subject of a risk
warning to that person.
(2) If the person who engages in the
recreational activity is an incapable person, the
authority may rely on a risk warning only if -
(a) the incapable person was under the care
of or accompanied by another person
29
s. 9 No. Civil Liability Amendment 2003
(who is not an incapable person and not
the authority) and the risk was the
subject of a risk warning to that other
person; or
(b) the risk was the subject of a risk
warning to a parent of the incapable
person (whether or not the incapable
person was under the care of or
accompanied by the parent).
(3) For the purpose of subsections (1) and (2),
a risk warning to a person in relation to a
recreational activity 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.
(4) The authority is not required to establish
that the person received or understood the warning
or was capable of receiving or understanding the
warning.
(5) A risk warning can be given orally or in
writing (including by means of a sign or otherwise).
(6) A risk warning need not be specific to the
particular risk and can be a general warning of risks
that include the particular risk concerned (so long as
the risk warning warns of the general nature of the
particular risk).
(7) An authority is not entitled to rely on a
risk warning unless it is given by or on behalf of the
authority or has been adopted by the authority.
(8) An authority 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 provision of a written law of the
State or Commonwealth that establishes specific
30
2003 Civil Liability Amendment No. s. 9
practices or procedures for the protection of personal
safety.
(9) An authority 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 the authority to the
person.
(10) An authority is not entitled to rely on a
risk warning to a person if the person was required
to engage in the recreational activity by the
authority.
(11) An authority is not entitled to rely on a
risk warning if it is established (on the balance of
probabilities) that the harm suffered resulted from
an act done or omission made with reckless
disregard for the consequences of the act or
omission.
(12) 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 or
inherent risk of an activity; or
(b) that an authority 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 the activity.
(13) 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.
(14) In this section -
"incapable person" means a person who,
because of the person's young age or a
31
s. 9 No. Civil Liability Amendment 2003
physical or mental disability, lacks the
capacity to understand the risk warning;
"parent" of an incapable person means any
person (not being an incapable person)
having parental responsibility for the
incapable person;
"recreational activity" has the same
meaning as in Division 5 of Part 6.
Proceedings against public or other
authorities based on breach of statutory duty
40. (1) This section applies to proceedings in respect
of a claim to which this Part applies that are based
on an alleged breach of a statutory duty by a public
or other authority in connection with the exercise of
or a failure to exercise a function of the authority.
(2) For the purpose of any such proceedings in
respect of a claim, an act or omission of the authority
does not constitute a breach of statutory duty unless
the act or omission was in the circumstances so
unreasonable that no authority having the functions
of the authority in question could properly consider
the act or omission to be a reasonable exercise of its
functions.
(3) In the case of a function of a public or other
authority to prohibit or regulate an activity, this
section applies in addition to section 41.
When public or other authority not liable for
failure to exercise regulatory functions
41. (1) A public or other authority is not liable in
proceedings in respect of a claim to which this Part
32
2003 Civil Liability Amendment No. s. 9
applies to the extent that the claim is based on the
failure of the authority to exercise or to consider
exercising any function of the authority to prohibit
or regulate an activity if the authority could not
have been required to exercise the function in
proceedings instituted by the claimant.
(2) Without limiting what constitutes a
function to regulate an activity for the purpose of
this section, a function to issue a licence, permit or
other authority in respect of an activity, or to
register or otherwise authorise a person in
connection with an activity, constitutes a function to
regulate the activity.
Special non-feasance protection for failure to
carry out road work
42. (1) A public or other authority responsible for
carrying out road work is not liable in proceedings in
respect of a claim to which this Part applies for harm
arising from a failure of the authority to carry out
road work, or to consider carrying out road work,
unless at the time of the alleged failure the authority
had actual knowledge of the facts creating the
particular risk the materialisation of which resulted
in the harm.
(2) This section does not operate -
(a) to create a duty of care in respect of a
risk merely because the public or other
authority referred to in subsection (1)
has actual knowledge of the risk; or
(b) to affect any standard of care that would
otherwise be applicable in respect of a
risk.
33
s. 9 No. Civil Liability Amendment 2003
(3) 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;
"road" means any street, road, lane,
thoroughfare, footpath, bridge, or place
open to or used by the public, or to which
the public have or are permitted to have
access, whether on payment of a fee or
otherwise.
Exercise of function or decision to exercise
does not create duty
43. In proceedings in respect of a claim to which this
Part applies, the fact that a public or other authority
exercises or decides to exercise a function does not of
itself indicate that the authority is under a duty to
exercise the function or that the function should be
exercised in particular circumstances or in a
particular way.
PART 10 - VOLUNTEERS
Interpretation
44. (1) In this Part -
"community organisation" means -
(a) a State Service Agency or
statutory authority; or
(b) an incorporated association under
the Associations Incorporation Act
34
2003 Civil Liability Amendment No. s. 9
1964, a council or a body
corporate -
that organises the doing of community work by
volunteers;
"community work" means work organised
by a community organisation to be
done -
(a) for a religious, educational,
charitable or benevolent purpose;
or
(b) for the purpose of promoting or
encouraging literature, science or
the arts; or
(c) for the purpose of sport, recreation
or amusement; or
(d) for the purpose of caring for,
treating or otherwise assisting
people who need assistance
because of a physical or mental
disability or condition; or
(e) for the purpose of conserving or
protecting the environment; or
(f) for the purpose of promoting or
preserving historical or cultural
heritage; or
(g) for the purpose of establishing,
carrying on or improving a
community, social or cultural
centre; or
(h) for the purpose of promoting the
interests of a local community; or
35
s. 9 No. Civil Liability Amendment 2003
(i) for a political purpose; or
(j) for a purpose prescribed by the
regulations -
but does not include work of a kind that is
prescribed by the regulations as work that is
not to be regarded as community work for the
purposes of this Act;
"organised" includes directed and
supervised;
"statutory authority" has the meaning given
by section 37;
"volunteer" has the meaning given by
section 45.
(2) A reference in this Part to the doing of
anything by a volunteer includes a reference to the
omission by a volunteer to do anything.
Meaning of "volunteer"
45. (1) In this Part, "volunteer" means a person
who does community work on a voluntary basis but
does not include a person who is -
(a) taken to be a worker for the purposes of
the Workers Rehabilitation and
Compensation Act 1988; or
(b) performing a function prescribed by the
regulations.
(2) For the purpose of subsection (1), a person
does community work on a voluntary basis if the
person -
36
2003 Civil Liability Amendment No. s. 9
(a) receives no remuneration for doing that
work other than -
(i) remuneration that the person
would receive whether or not the
person did that work; or
(ii) the reimbursement of reasonable
expenses incurred by the person in
doing that work; or
(b) receives remuneration that is not
greater than the amount, if any,
prescribed by the regulations.
(3) A person is not to be regarded as doing
community work on a voluntary basis if the person is
doing that work under an order imposed by a court.
Application of Part 10
46. (1) This Part applies to civil liability for a thing
done by a volunteer after the commencement of this
Part.
(2) This Part does not limit the protection from
liability given by another written law.
Protection of volunteers from liability
47. (1) Subject to subsections (2) and (3), a
volunteer does not incur civil liability for anything
that the volunteer has done in good faith when doing
community work.
(2) Subsection (1) does not affect any right to
recover damages in respect of defamation or in
respect of the death of, or personal injury to, any
37
s. 9 No. Civil Liability Amendment 2003
person directly caused by, or by the driving of, a
motor vehicle if, at the time of the death or personal
injury -
(a) the vehicle was owned or being driven by
a person who, but for the operation of
subsection (1), would incur liability in
respect of the death or personal injury;
and
(b) the vehicle -
(i) was a vehicle in respect of which a
premium had been paid, or had
been required to be paid, in
accordance with Part V of the
Motor Accidents (Liabilities and
Compensation) Act 1973; or
(ii) was a "permitted out-of-State
vehicle", as referred to in section 2
of that Act, in respect of which a
third party insurance policy was in
force as required by section 19 of
that Act.
(3) The protection given by subsection (1) does
not apply to a volunteer -
(a) who knew or ought reasonably to have
known that at the relevant time he or
she was acting -
(i) outside the scope of the
community work organised by the
community organisation; or
(ii) contrary to instructions given by
the community organisation; or
38
2003 Civil Liability Amendment No. s. 9
(b) whose ability to do the community work
in a proper manner was, at the relevant
time, significantly impaired by alcohol or
drugs.
(4) In this section -
"drugs" means drugs that are taken
voluntarily otherwise than for
therapeutic purposes;
"motor vehicle" has the meaning given in
section 2 of the Motor Accidents
(Liabilities and Compensation) Act 1973.
Liability of community organisations
48. (1) A community organisation incurs the civil
liability that, but for the operation of section 47(1), a
volunteer would incur for a thing done by the
volunteer when doing community work organised by
the community organisation.
(2) The operation of subsection (1) is subject to
any protection from liability that would have applied
to the community organisation if the thing done by
the volunteer had been done by the community
organisation.
(3) If more than one community organisation
is involved in organising the community work
referred to in subsection (1), that subsection applies
to the community organisation that principally
organises, or the community organisations that
principally organise, that work.
39
s. 9 No. Civil Liability Amendment 2003
Certain indemnities, &c., have no effect
49. 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 civil liability that -
(a) the volunteer would incur but for the
operation of section 47(1); and
(b) the community organisation incurs
under section 48(1).
PART 11 - MISCELLANEOUS
Regulations
50. (1) The Governor may make regulations for the
purposes of this Act.
(2) Regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(3) The regulations may -
(a) provide that a contravention of, or a
failure to comply with, any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units and, in the case of a
continuing offence, a further fine not
exceeding 20 penalty units for each day
during which the offence continues.
(4) The regulations may authorise any matter
to be from time to time determined, applied or
40
2003 Civil Liability Amendment No. s. 10
regulated by any person or body specified in the
regulations.
(5) The regulations may contain provisions of
a savings or transitional nature consequent on the
enactment of this Act.
(6) Regulations under subsection (5) may take
effect on the day on which this Act commences or a
later day as specified in the regulations, whether the
day so specified is before, on or after the day on
which the regulations are made.
Fair Trading Act 1990 amended
10. The Fair Trading Act 1990 is amended as follows:
(a) by omitting section 37 and substituting the
following section:
Actions for damages
37. (1) A person who suffers loss or damage
by conduct of another person that was done in
contravention of a provision of this Act may
recover the amount of the loss or damage by
action against that other person or against any
person involved in the contravention.
(2) A reference to loss or damage in
subsection (1) does not, if the loss or damage
arises from a contravention of Part 2
(section 15 excepted), include a reference to -
(a) the death of a person; or
(b) personal injury to a person
(including any pre-natal injury,
any impairment of the person's
41
s. 11 No. Civil Liability Amendment 2003
physical or mental condition and
any disease).
(b) by inserting the following subsection after
subsection (1) in section 41:
(1A) A reference in this section to loss or
damage does not, if the loss or damage arises
from a contravention of Part 2 (section 15
excepted), include a reference to -
(a) the death of a person; or
(b) personal injury to a person
(including any pre-natal injury,
any impairment of the person's
physical or mental condition and
any disease).
Wrongs Act 1954 amended
11. Section 4(1) of the Wrongs Act 1954 is amended by
inserting "up to 100%" after "extent".
Application of amendments made by this Act
12. The amendments made by this Act do not apply to a
cause of action accrued before the commencement of this
Act.
42 Government Printer, Tasmania