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CIVIL LIABILITY BILL 2003

         Queensland




CIVIL LIABILITY BILL 2003

 


 

 

Queensland CIVIL LIABILITY BILL 2003 TABLE OF PROVISIONS Section Page CHAPTER 1--PRELIMINARY PART 1--INTRODUCTION 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 Notes in text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PART 2--APPLICATION OF ACT 4 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5 Civil liability excluded from Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 6 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 7 Provisions relating to operation of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PART 3--INTERPRETATION 8 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CHAPTER 2--CIVIL LIABILITY FOR PERSONAL INJURY AND PARTICULAR DAMAGE TO PROPERTY, AND RELATING TO ECONOMIC LOSS PART 1--BREACH OF DUTY Division 1--General standard of care 9 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 Other principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Division 2--Causation 11 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 12 Onus of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Division 3--Assumption of risk 13 Meaning of "obvious risk" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 14 Persons suffering harm presumed to be aware of obvious risks . . . . . . . . . . 14

 


 

2 Civil Liability Bill 2003 15 No proactive duty to warn of obvious risk . . . . . . . . . . . . . . . . . . . . . . . . . . 14 16 No liability for materialisation of inherent risk. . . . . . . . . . . . . . . . . . . . . . . 14 Division 4--Dangerous recreational activities 17 Application of div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 18 Definitions for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 19 No liability for personal injury suffered from obvious risks of dangerous recreational activities ...................................... 15 Division 5--Duty of professionals 20 Definition for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21 Proactive and reactive duty of doctor to warn of risk . . . . . . . . . . . . . . . . . . 16 22 Standard of care for professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Division 6--Contributory negligence 23 Standard of care in relation to contributory negligence . . . . . . . . . . . . . . . . 17 24 Contributory negligence can defeat claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Division 7--Enhancement of public safety 25 Definition for div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 26 Protection of persons performing duties for entities to enhance public safety ........................................... 18 27 Protection of prescribed entities performing duties to enhance public safety ........................................... 18 PART 2--PROPORTIONATE LIABILITY 28 Application of pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 29 Definition for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 30 Proportionate liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 31 Circumstances in which liability of defendants is enlarged . . . . . . . . . . . . . 20 32 Defendant may seek contribution from person not a party to the original proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 33 Part does not prevent other liability or operation of other Acts. . . . . . . . . . . 21 PART 3--LIABILITY OF PUBLIC AND OTHER AUTHORITIES AND VOLUNTEERS Division 1--Public and other authorities 34 Definitions for div 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 35 Principles concerning resources, responsibilities etc. of public or other authorities ............................................ 22

 


 

3 Civil Liability Bill 2003 36 Proceedings against public or other authorities based on breach of statutory duty .............................................. 23 37 Restriction on liability of public or other authorities with functions of road authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Division 2--Volunteers 38 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 39 Protection of volunteers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 40 Liability not excluded for criminal acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 41 Liability of intoxicated volunteer not excluded. . . . . . . . . . . . . . . . . . . . . . . 25 42 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 43 Liability not excluded if insurance required . . . . . . . . . . . . . . . . . . . . . . . . . 25 44 Liability not excluded for motor accidents . . . . . . . . . . . . . . . . . . . . . . . . . . 25 PART 4--EXCLUSION FROM CLAIMING DAMAGES BECAUSE OF PARTICULAR BEHAVIOUR Division 1--Criminal behaviour 45 Criminals not to be awarded damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Division 2--Intoxication 46 Effect of intoxication on duty and standard of care . . . . . . . . . . . . . . . . . . . 26 47 Presumption of contributory negligence if person who suffers harm is intoxicated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 48 Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated . . . . . . . . . . . . . . 28 49 Additional presumption for motor vehicle accident . . . . . . . . . . . . . . . . . . . 29 CHAPTER 3--ASSESSMENT OF DAMAGES FOR PERSONAL INJURY PART 1--PRELIMINARY 50 Application of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 51 Definitions for ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 52 Offsetting collateral benefits against damages . . . . . . . . . . . . . . . . . . . . . . . 30 PART 2--EXEMPLARY AND SIMILAR DAMAGES 53 Exemplary, punitive or aggravated damages can not be awarded . . . . . . . . . 31 PART 3--ASSESSMENT OF DAMAGES 54 Notice requiring mitigation of damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 55 Damages for loss of earnings or earning capacity. . . . . . . . . . . . . . . . . . . . . 32

 


 

4 Civil Liability Bill 2003 56 When earnings can not be precisely calculated. . . . . . . . . . . . . . . . . . . . . . . 33 57 Damages for loss of superannuation entitlements. . . . . . . . . . . . . . . . . . . . . 33 58 Discount rate to be applied in calculating the present value of future loss or gratuitous services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 59 Damages for loss of consortium or loss of servitium . . . . . . . . . . . . . . . . . . 34 60 Damages for gratuitous services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 61 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 62 Assessment by court of injury scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 63 Calculation of general damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 PART 4--STRUCTURED SETTLEMENTS 64 Definition for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 65 Court required to inform parties of proposed award . . . . . . . . . . . . . . . . . . . 38 66 Court may make consent order for structured settlement . . . . . . . . . . . . . . . 38 67 Obligation of legal practitioners to provide advice . . . . . . . . . . . . . . . . . . . 38 68 Offer of structured settlement--legal costs . . . . . . . . . . . . . . . . . . . . . . . . . . 39 CHAPTER 4--MISCELLANEOUS PART 1--EXPRESSIONS OF REGRET 69 Application of pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 70 Definition for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 71 Purpose of pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 72 Meaning of "expression of regret" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 73 Expressions of regret are inadmissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 PART 2--JURY TRIALS 74 Exclusion of jury trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 PART 3--GENERAL 75 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 76 Regulations may contain transitional provisions. . . . . . . . . . . . . . . . . . . . . . 41 CHAPTER 5--TRANSITIONAL PROVISIONS 77 Prescribed entities for ss 26 and 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 78 Jury trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 79 Amendment of regulation in sch 1 does not affect powers of Governor in Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

 


 

5 Civil Liability Bill 2003 CHAPTER 6--AMENDMENT OF ACTS AND REGULATION PART 1--AMENDMENT OF PERSONAL INJURIES PROCEEDINGS ACT 2002 80 Act amended in pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 81 Amendment of s 6 (Application of Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 82 Amendment of s 7 (Provisions of this Act that are provisions of substantive law) ............................................ 43 83 Amendment of s 9 (Notice of a claim) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 84 Amendment of s 10 (Person to whom notice of a claim is given must give preliminary response to claimant). . . . . . . . . . . . . . . . . . . . . . . . . 45 85 Amendment of s 11 (Acknowledgement that a person is a proper respondent to a claim is not an admission of liability) . . . . . . . . . . . . . . . . . 46 86 Amendment of s 12 (Respondent's response to the notice of a claim) . . . . . 46 87 Replacement of s 13 (Consequences for respondent of failure to respond to notice of a claim) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 13 Consequences for respondent of failure to respond to part 1 of a notice of a claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 88 Amendment of s 14 (Claimant may add other respondents) . . . . . . . . . . . . . 47 89 Amendment of s 16 (Respondent may add other person as contributor) . . . 47 90 Amendment of s 18 (Claimant's failure to give notice of a claim) . . . . . . . . 48 18 Claimant's failure to give part 1 of a notice of a claim'. . . . . . . . . . . 48 91 Amendment of s 20 (Respondent must attempt to resolve claim) . . . . . . . . 48 95 Insertion of new s 29A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 29A Alternative provision if number of pages exceeds 200 . . . . . . . . . . . 52 96 Replacement of s 34 (No requirement to give documents twice) . . . . . . . . . 53 34 No requirement to give documents or other information twice or if already in other party's possession . . . . . . . . . . . . . . . . . . . . . . . . . 53 97 Amendment of s 36 (Compulsory conference) . . . . . . . . . . . . . . . . . . . . . . . 54 98 Amendment of s 42 (Time for starting proceeding) . . . . . . . . . . . . . . . . . . . 54 99 Amendment of s 43 (Need for urgent proceeding) . . . . . . . . . . . . . . . . . . . . 54 103 Amendment of s 59 (Alteration of period of limitation) . . . . . . . . . . . . . . . . 55 105 Insertion of new s 67A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 67A Exemption from s 67(3) and (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 106 Insertion of new s 73A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 73A Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

 


 

6 Civil Liability Bill 2003 107 Insertion of new ch 4, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 PART 3--TRANSITIONAL PROVISIONS FOR CIVIL LIABILITY ACT 2003 78 Definitions for pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 79 Notice of a claim given under the pre-amended Act . . . . . . . . . . . . . 57 80 Special provision for notification of claims in relation to injuries to children arising out of medical treatment . . . . . . . . . . . . . 58 108 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 PART 2--OTHER AMENDMENTS 109 Acts and regulation amended in sch 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 59 AMENDMENT OF ACTS AND REGULATION LAW REFORM ACT 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 MOTOR ACCIDENT INSURANCE ACT 1994 . . . . . . . . . . . . . . . . . . . . . 59 PERSONAL INJURIES PROCEEDINGS REGULATION 2002 . . . . . . . . 61 SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 63 DICTIONARY

 


 

2003 A BILL FOR An Act to reform the law of civil liability for negligent acts, and for other purposes

 


 

s1 8 s3 Civil Liability Bill 2003 The Parliament of Queensland enacts-- 1 CHAPTER 1--PRELIMINARY 2 PART 1--INTRODUCTION 3 1 Short title 4 This Act may be cited as the Civil Liability Act 2003. 5 2 Commencement 6 (1) Subject to subsections (2) and (3), this Act is taken to have 7 commenced on 2 December 2002. 8 (2) The following provisions commence on assent-- 9 chapter 2, part 1, division 7, part 3, division 2 and part 4 10 chapter 3, part 2, part 3, sections 54, 55 and 57 to 61 and part 4 11 chapter 4, parts 1 and 2 12 chapter 5 13 chapter 6 and schedule 1. 14 (3) Chapter 2, part 2 commences on a day to be fixed by proclamation. 15 3 Notes in text 16 A note in the text of this Act is part of this Act. 17

 


 

s4 9 s6 Civil Liability Bill 2003 PART 2--APPLICATION OF ACT 1 4 Application of Act 2 Subject to section 5, this Act applies to any civil claim for damages for 3 harm. 4 5 Civil liability excluded from Act 5 This Act does not apply in relation to any civil claim for damages for 6 personal injury if the harm resulting from the breach of duty owed to the 7 claimant is or includes-- 8 (a) an injury as defined under the WorkCover Queensland Act 1996, 9 other than an injury to which section 36(1)(c) or 371 of that Act 10 applies; or 11 12 Example for paragraph (a)-- 13 A worker employed under a contract of service with a labour hire company 14 is injured at the premises of a host employer while driving a defective 15 machine. The worker pursues claims for damages for civil liability against 16 the labour hire company, the host employer and the manufacturer of the 17 machine. The worker suffers a number of injuries but only 1 of them is 18 accepted as an injury under the WorkCover Queensland Act 1996, 19 section 34. This Act does not apply to any of the claims for damages. (b) an injury that is a dust-related condition; or 20 (c) an injury resulting from smoking or other use of tobacco 21 products or exposure to tobacco smoke. 22 6 Act binds all persons 23 This Act binds all persons including the State and, to the extent the 24 legislative power of the Parliament permits, the Commonwealth and the 25 other States. 26 1 WorkCover Queensland Act 1996, section 36 (Injury while at or after worker attends place of employment) or 37 (Other circumstances)

 


 

s7 10 s8 Civil Liability Bill 2003 7 Provisions relating to operation of Act 1 (1) This Act does not create or confer any cause of civil action for the 2 recovery of damages. 3 (2) A provision of this Act that gives protection from civil liability does 4 not limit the protection from liability given by another provision of this Act 5 or by another Act or law. 6 (3) This Act, other than chapter 3,2 does not prevent the parties to a 7 contract from making express provision for their rights, obligations and 8 liabilities under the contract (the "express provision") in relation to any 9 matter to which this Act applies and does not limit or otherwise affect the 10 operation of the express provision. 11 (4) Subsection (3) extends to any provision of this Act even if the 12 provision applies to liability in contract. 13 (5) This Act is not a codification of the law relating to civil claims for 14 damages for harm. 15 PART 3--INTERPRETATION 16 8 Definitions 17 The dictionary in schedule 2 defines particular words used in this Act. 18 2 Chapter 3 (Assessment of damages for personal injury)

 


 

s9 11 s 10 Civil Liability Bill 2003 CHAPTER 2--CIVIL LIABILITY FOR PERSONAL 1 INJURY AND PARTICULAR DAMAGE TO 2 PROPERTY, AND RELATING TO ECONOMIC LOSS 3 PART 1--BREACH OF DUTY 4 Division 1--General standard of care 5 9 General principles 6 (1) A person does not breach a duty to take precautions against a risk of 7 harm unless-- 8 (a) the risk was foreseeable (that is, it is a risk of which the person 9 knew or ought reasonably to have known); and 10 (b) the risk was not insignificant; and 11 (c) in the circumstances, a reasonable person in the position of the 12 person would have taken the precautions. 13 (2) In deciding whether a reasonable person would have taken 14 precautions against a risk of harm, the court is to consider the following 15 (among other relevant things)-- 16 (a) the probability that the harm would occur if care were not taken; 17 (b) the likely seriousness of the harm; 18 (c) the burden of taking precautions to avoid the risk of harm; 19 (d) the social utility of the activity that creates the risk of harm. 20 10 Other principles 21 In a proceeding relating to liability for breach of duty-- 22 (a) the burden of taking precautions to avoid a risk of harm includes 23 the burden of taking precautions to avoid similar risks of harm 24 for which the person may be responsible; and 25 (b) the fact that a risk of harm could have been avoided by doing 26 something in a different way does not of itself give rise to or 27 affect liability for the way in which the thing was done; and 28

 


 

s 11 12 s 11 Civil Liability Bill 2003 (c) the subsequent taking of action that would (had the action been 1 taken earlier) have avoided a risk of harm does not of itself give 2 rise to or affect liability in relation to the risk and does not of 3 itself constitute an admission of liability in connection with the 4 risk. 5 Division 2--Causation 6 11 General principles 7 (1) A decision that a breach of duty caused particular harm comprises the 8 following elements-- 9 (a) the breach of duty was a necessary condition of the occurrence of 10 the harm ("factual causation"); 11 (b) it is appropriate for the scope of the liability of the person in 12 breach to extend to the harm so caused ("scope of liability"). 13 (2) In deciding in an exceptional case, in accordance with established 14 principles, whether a breach of duty--being a breach of duty that is 15 established but which can not be established as satisfying 16 subsection (1)(a)--should be accepted as satisfying subsection (1)(a), the 17 court is to consider (among other relevant things) whether or not and why 18 responsibility for the harm should be imposed on the party in breach. 19 (3) If it is relevant to deciding factual causation to decide what the 20 person who suffered harm would have done if the person who was in 21 breach of the duty had not been so in breach-- 22 (a) the matter is to be decided subjectively in the light of all relevant 23 circumstances, subject to paragraph (b); and 24 (b) any statement made by the person after suffering the harm about 25 what he or she would have done is inadmissible except to the 26 extent (if any) that the statement is against his or her interest. 27 (4) For the purpose of deciding the scope of liability, the court is to 28 consider (among other relevant things) whether or not and why 29 responsibility for the harm should be imposed on the party who was in 30 breach of the duty. 31

 


 

s 12 13 s 13 Civil Liability Bill 2003 12 Onus of proof 1 In deciding liability for breach of a duty, the plaintiff always bears the 2 onus of proving, on the balance of probabilities, any fact relevant to the 3 issue of causation. 4 Division 3--Assumption of risk 5 13 Meaning of "obvious risk" 6 (1) For this division, an "obvious risk" to a person who suffers harm is a 7 risk that, in the circumstances, would have been obvious to a reasonable 8 person in the position of that person. 9 (2) Obvious risks include risks that are patent or a matter of common 10 knowledge. 11 (3) A risk of something occurring can be an obvious risk even though it 12 has a low probability of occurring. 13 (4) A risk can be an obvious risk even if the risk (or a condition or 14 circumstance that gives rise to the risk) is not prominent, conspicuous or 15 physically observable. 16 (5) To remove any doubt, it is declared that a risk from a thing, including 17 a living thing, is not an obvious risk if the risk is created because of a 18 failure on the part of a person to properly operate, maintain, replace, 19 prepare or care for the thing, unless the failure itself is an obvious risk. 20 21 Examples for subsection (5)-- 22 1. A motorised go-cart that appears to be in good condition may create a risk to a user 23 of the go-cart that is not an obvious risk if its frame has been damaged or cracked 24 in a way that is not obvious. 25 2. A bungee cord that appears to be in good condition may create a risk to a user of 26 the bungee cord that is not an obvious risk if it is used after the time the 27 manufacturer of the bungee cord recommends its replacement or it is used in 28 circumstances contrary to the manufacturer's recommendation.

 


 

s 14 14 s 16 Civil Liability Bill 2003 14 Persons suffering harm presumed to be aware of obvious risks 1 (1) If, in an action for damages for breach of duty causing harm, a 2 defence of voluntary assumption of risk3 is raised by the defendant and the 3 risk is an obvious risk, the plaintiff is taken to have been aware of the risk 4 unless the plaintiff proves, on the balance of probabilities, that he or she 5 was not aware of the risk. 6 (2) For this section, a person is aware of a risk if the person is aware of 7 the type or kind of risk, even if the person is not aware of the precise 8 nature, extent or manner of occurrence of the risk. 9 15 No proactive duty to warn of obvious risk 10 (1) A person ("defendant") does not owe a duty to another person 11 ("plaintiff") to warn of an obvious risk to the plaintiff. 12 (2) Subsection (1) does not apply if-- 13 (a) the plaintiff has requested advice or information about the risk 14 from the defendant; or 15 (b) the defendant is required by a written law to warn the plaintiff of 16 the risk; or 17 (c) the defendant is a professional, other than a doctor, and the risk is 18 a risk of the death of or personal injury to the plaintiff from the 19 provision of a professional service by the defendant. 20 21 Note-- 22 In relation to paragraphs (a) and (b), see section 21 for the duty of a doctor to warn of 23 risk. (3) Subsection (2) does not give rise to a presumption of a duty to warn 24 of a risk in the circumstances referred to in that subsection. 25 16 No liability for materialisation of inherent risk 26 (1) A person is not liable in negligence for harm suffered by another 27 person as a result of the materialisation of an inherent risk. 28 (2) An inherent risk is a risk of something occurring that can not be 29 avoided by the exercise of reasonable care and skill. 30 3 `Volenti non fit injuria'

 


 

s 17 15 s 19 Civil Liability Bill 2003 (3) This section does not operate to exclude liability in connection with a 1 duty to warn of a risk. 2 Division 4--Dangerous recreational activities 3 17 Application of div 4 4 (1) This division applies only in relation to liability in negligence for 5 harm to a person resulting from a dangerous recreational activity engaged 6 in by the plaintiff. 7 (2) This division does not limit the operation of division 34 in relation to 8 a recreational activity. 9 18 Definitions for div 4 10 In this division-- 11 "dangerous recreational activity" means an activity engaged in for 12 enjoyment, relaxation or leisure that involves a significant degree of 13 risk of physical harm to a person. 14 "obvious risk" has the same meaning as it has in division 3. 15 19 No liability for personal injury suffered from obvious risks of 16 dangerous recreational activities 17 (1) A person is not liable in negligence for harm suffered by another 18 person as a result of the materialisation of an obvious risk of a dangerous 19 recreational activity engaged in by the person suffering harm. 20 (2) This section applies whether or not the person suffering harm was 21 aware of the risk. 22 4 Division 3 (Assumption of risk)

 


 

s 20 16 s 22 Civil Liability Bill 2003 Division 5--Duty of professionals 1 20 Definition for div 5 2 In this division-- 3 "a professional" means a person practising a profession. 4 21 Proactive and reactive duty of doctor to warn of risk 5 (1) A doctor does not breach a duty owed to a patient to warn of risk, 6 before the patient undergoes any medical treatment (or at the time of being 7 given medical advice) that will involve a risk of personal injury to the 8 patient, unless the doctor at that time fails to give or arrange to be given to 9 the patient the information about the risk-- 10 (a) that a reasonable person in the patient's position would, in the 11 circumstances, require to enable the person to make a reasonably 12 informed decision about whether to undergo the treatment or 13 follow the advice; and 14 (b) that the doctor knows or ought reasonably to know the patient 15 wants to be given before making the decision about whether to 16 undergo the treatment or follow the advice. 17 (2) The duty is a duty to take reasonable care owed by the doctor to the 18 patient and exists whether or not the patient asks for the information. 19 (3) In this section-- 20 "patient", when used in a context of asking for or giving information, 21 includes a person who has the responsibility for making a decision 22 about the medical treatment to be undergone by a patient if the patient 23 is under a legal disability. 24 25 Example-- 26 The responsibility a parent has for an infant child. 22 Standard of care for professionals 27 (1) A professional does not breach a duty arising from the provision of a 28 professional service if it is established that the professional acted in a way 29 that (at the time the service was provided) was widely accepted by peer 30 professional opinion by a significant number of respected practitioners in 31 the field as competent professional practice. 32

 


 

s 23 17 s 24 Civil Liability Bill 2003 (2) However, peer professional opinion can not be relied on for the 1 purposes of this section if the court considers that the opinion is irrational 2 or contrary to a written law. 3 (3) The fact that there are differing peer professional opinions widely 4 accepted by a significant number of respected practitioners in the field 5 concerning a matter does not prevent any 1 or more (or all) of the opinions 6 being relied on for the purposes of this section. 7 (4) Peer professional opinion does not have to be universally accepted to 8 be considered widely accepted. 9 (5) This section does not apply to liability arising in connection with the 10 giving of (or the failure to give) a warning, advice or other information in 11 relation to the risk of harm to a person associated with the provision by a 12 professional of a professional service. 13 Division 6--Contributory negligence 14 23 Standard of care in relation to contributory negligence 15 (1) The principles that are applicable in deciding whether a person has 16 breached a duty also apply in deciding whether the person who suffered 17 harm has been guilty of contributory negligence in failing to take 18 precautions against the risk of that harm. 19 (2) For that purpose-- 20 (a) the standard of care required of the person who suffered harm is 21 that of a reasonable person in the position of that person; and 22 (b) the matter is to be decided on the basis of what that person knew 23 or ought reasonably to have known at the time. 24 24 Contributory negligence can defeat claim 25 In deciding the extent of a reduction in damages by reason of 26 contributory negligence, a court may decide a reduction of 100% if the 27 court considers it just and equitable to do so, with the result that the claim 28 for damages is defeated. 29

 


 

s 25 18 s 27 Civil Liability Bill 2003 Division 7--Enhancement of public safety 1 25 Definition for div 7 2 In this division-- 3 "person in distress" includes-- 4 (a) a person who is injured, apparently injured or at risk of injury; 5 and 6 (b) a person who is suffering, or apparently suffering, from an 7 illness. 8 26 Protection of persons performing duties for entities to enhance 9 public safety 10 (1) Liability at law does not attach to a person in relation to an act done 11 or omitted on or after 18 June 2002 in the course of rendering first aid or 12 other aid or assistance to a person in distress if-- 13 (a) the first aid or other aid or assistance is given by the person while 14 performing duties to enhance public safety for an entity 15 prescribed under a regulation that provides services to enhance 16 public safety; and 17 (b) the first aid or other aid or assistance is given in circumstances of 18 emergency; and 19 (c) the act is done or omitted in good faith and without reckless 20 disregard for the safety of the person in distress or someone else. 21 (2) Subsection (1) does not limit or affect the Law Reform Act 1995, 22 part 5.5 23 27 Protection of prescribed entities performing duties to enhance 24 public safety 25 (1) Liability at law does not attach to an entity, prescribed under a 26 regulation, that provides services to enhance public safety in relation to an 27 act done or omitted in the course of rendering first aid or other aid or 28 assistance to a person in distress if-- 29 5 Law Reform Act 1995, part 5 (Voluntary aid in emergency)

 


 

s 28 19 s 30 Civil Liability Bill 2003 (a) the first aid or other aid or assistance is given by the entity while 1 performing duties to enhance public safety; and 2 (b) the first aid or other aid or assistance is given in circumstances of 3 emergency; and 4 (c) the act is done or omitted in good faith and without reckless 5 disregard for the safety of the person in distress or someone else. 6 (2) Subsection (1) does not limit or affect the Law Reform Act 1995, 7 part 5. 8 PART 2--PROPORTIONATE LIABILITY 9 28 Application of pt 2 10 This part does not apply to a claim for a breach of duty resulting in-- 11 (a) personal injury; or 12 (b) damages for an amount less than $500 000. 13 29 Definition for pt 2 14 In this part-- 15 "defendant" includes any person joined as a defendant or other party in 16 the proceeding (except as a plaintiff) whether joined under this part, 17 under rules of court or otherwise. 18 30 Proportionate liability 19 (1) If there is more than 1 defendant in a proceeding, each defendant is 20 liable only for the amount of damages decided by the court. 21 (2) The liability of each defendant is the amount decided by the court to 22 be just and equitable having regard to the extent of the defendant's 23 responsibility for the harm. 24 (3) In apportioning responsibility as between the defendants-- 25

 


 

s 31 20 s 31 Civil Liability Bill 2003 (a) the court is to exclude the proportion of the damage or loss in 1 relation to which the plaintiff is contributorily negligent under 2 any relevant law; and 3 (b) the court must not have regard to the comparative responsibility 4 of any other person who is not a party to the proceeding. 5 (4) Despite subsection (3)(b), the court may have regard to the 6 comparative responsibility of another person who is not a party to the 7 proceeding if the person is not a party to the proceeding because the person 8 is dead or, if the person is a corporation, the corporation has been 9 wound-up. 10 (5) The liability of each defendant is several only and not joint except as 11 otherwise provided under this part. 12 (6) This section is subject to section 31. 13 31 Circumstances in which liability of defendants is enlarged 14 (1) Defendants in a proceeding are jointly and severally liable for the 15 total of the damages for loss awarded against the defendants if the 16 defendants formed a common intention to commit an intentional tort and 17 actively took part in the commission of the tort. 18 (2) A defendant in a proceeding is also jointly and severally liable for the 19 damages awarded against another defendant in the proceeding as agent of 20 the defendant. 21 (3) A defendant in a proceeding (the "first defendant") is also jointly 22 and severally liable for the damages awarded against another defendant in 23 the proceeding if-- 24 (a) because of the other defendant's action, the plaintiff suffered 25 loss; and 26 (b) the plaintiff engaged the first defendant to provide professional 27 advice to prevent the loss; and 28 (c) the plaintiff relied on the advice. 29 30 Example for subsection (3)-- 31 P sues D and R for damages. R misrepresented the income of a business P was 32 considering purchasing. P sought professional advice from D, an accountant, about the 33 income generated by the business. D negligently failed to identify the 34 misrepresentation. As a direct result of D's advice, P purchased the business and 35 suffered loss. P may recover the entire amount of P's loss from D.

 


 

s 32 21 s 33 Civil Liability Bill 2003 (4) A defendant in a proceeding against whom a finding of fraud is made 1 or who contravenes a prescribed provision is also jointly and severally 2 liable for the damages awarded against any other defendant in the 3 proceeding. 4 (5) The operation of subsection (1), (2), (3) or (4) does not necessarily 5 exclude the operation of another 1 or more of those subsections. 6 (6) In this section-- 7 "prescribed provision" means-- 8 (a) the Fair Trading Act 1989, section 38;6 or 9 (b) the Trade Practices Act 1974 (Cwlth), section 52.7 10 32 Defendant may seek contribution from person not a party to the 11 original proceeding 12 Nothing in this part prevents a defendant from seeking, in another 13 proceeding, contribution from someone else in relation to the claim. 14 33 Part does not prevent other liability or operation of other Acts 15 Nothing in this part-- 16 (a) prevents a person from being held vicariously liable for a 17 proportion of any claim for which another person is liable; or 18 (b) prevents a partner from being held severally liable with another 19 partner for that proportion of a claim for which the other partner 20 is liable; or 21 (c) affects a defendant's right relating to contributory negligence by 22 a person who suffered harm. 23 6 Fair Trading Act 1989, section 38 (Misleading or deceptive conduct--TPA s 52) 7 Trade Practices Act 1974 (Cwlth), section 52 (Misleading or deceptive conduct)

 


 

s 34 22 s 35 Civil Liability Bill 2003 PART 3--LIABILITY OF PUBLIC AND OTHER 1 AUTHORITIES AND VOLUNTEERS 2 Division 1--Public and other authorities 3 34 Definitions for div 1 4 In this division-- 5 "function" includes power. 6 "public or other authority" means-- 7 (a) the Crown (within the meaning of the Crown Proceedings Act 8 1980); or 9 (b) a local government; or 10 (c) any public authority constituted under an Act. 11 35 Principles concerning resources, responsibilities etc. of public or 12 other authorities 13 The following principles apply to a proceeding in deciding whether a 14 public or other authority has a duty or has breached a duty-- 15 (a) the functions required to be exercised by the authority are limited 16 by the financial and other resources that are reasonably available 17 to the authority for the purpose of exercising the functions; 18 (b) the general allocation of financial or other resources by the 19 authority is not open to challenge; 20 (c) the functions required to be exercised by the authority are to be 21 decided by reference to the broad range of its activities (and not 22 merely by reference to the matter to which the proceeding 23 relates); 24 (d) the authority may rely on evidence of its compliance with its 25 general procedures and any applicable standards for the exercise 26 of its functions as evidence of the proper exercise of its functions 27 in the matter to which the proceeding relates. 28

 


 

s 36 23 s 37 Civil Liability Bill 2003 36 Proceedings against public or other authorities based on breach of 1 statutory duty 2 (1) This section applies to a proceeding that is based on an alleged 3 wrongful exercise of or failure to exercise a function of a public or other 4 authority. 5 (2) For the purposes of the proceeding, an act or omission of the 6 authority does not constitute a wrongful exercise or failure unless the act or 7 omission was in the circumstances so unreasonable that no public or other 8 authority having the functions of the authority in question could properly 9 consider the act or omission to be a reasonable exercise of its functions. 10 37 Restriction on liability of public or other authorities with 11 functions of road authorities 12 (1) A public or other authority is not liable in any legal proceeding for 13 any failure by the authority in relation to any function it has as a road 14 authority-- 15 (a) to repair a road or to keep a road in repair; or 16 (b) to inspect a road for the purpose of deciding the need to repair 17 the road or to keep the road in repair. 18 (2) Subsection (1) does not apply if at the time of the alleged failure the 19 authority had actual knowledge of the particular risk the materialisation of 20 which resulted in the harm. 21 (3) This section does not operate-- 22 (a) to create a duty in relation to a risk merely because a road 23 authority has actual knowledge of the risk; or 24 (b) to affect a duty that would otherwise be applicable in relation to a 25 risk. 26 (4) In this section-- 27 "road" see the Transport Operations (Road Use Management) Act 1995, 28 schedule 4. 29 "road authority" means the entity responsible for carrying out any road 30 work. 31 (5) This section expires on 31 December 2005. 32

 


 

s 38 24 s 40 Civil Liability Bill 2003 Division 2--Volunteers 1 38 Interpretation 2 (1) In this division-- 3 "community organisation" means a corporation, or an authority of the 4 State, that organises the doing of community work by volunteers. 5 "community work" means work that is not for private financial gain and 6 that is done for a charitable, benevolent, philanthropic, sporting, 7 educational or cultural purpose. 8 "organised" includes directed or supervised. 9 "volunteer" means a person who does community work on a voluntary 10 basis. 11 "work" includes any activity. 12 (2) For the purposes of this division-- 13 (a) community work done by a person under an order of a court is 14 not to be regarded as work done on a voluntary basis; and 15 (b) community work for which a person receives remuneration by 16 way of reimbursement of the person's reasonable expenses in 17 doing the work is to be regarded as work done on a voluntary 18 basis. 19 39 Protection of volunteers 20 A volunteer does not incur any personal civil liability in relation to any 21 act or omission done or made by the volunteer in good faith when doing 22 community work-- 23 (a) organised by a community organisation; or 24 (b) as an office holder of a community organisation. 25 40 Liability not excluded for criminal acts 26 This division does not confer protection from personal liability on a 27 volunteer in relation to an act or omission of the volunteer if it is 28 established (on the balance of probabilities) that at the time of the act or 29 omission the volunteer was engaged in conduct that constitutes an offence. 30

 


 

s 41 25 s 44 Civil Liability Bill 2003 41 Liability of intoxicated volunteer not excluded 1 The protection from personal liability conferred on a volunteer by this 2 division in connection with any community work does not apply if the 3 volunteer-- 4 (a) was intoxicated when doing the work; and 5 (b) failed to exercise due care and skill when doing the work. 6 42 Liability of volunteer not excluded if acting outside scope of 7 activities or contrary to instructions 8 This division does not confer protection on a volunteer from personal 9 liability in relation to an act or omission of a volunteer if the volunteer 10 knew or ought reasonably to have known that he or she was acting-- 11 (a) outside the scope of the activities authorised by the community 12 organisation concerned; or 13 (b) contrary to instructions given by the community organisation. 14 43 Liability not excluded if insurance required 15 This division does not confer protection from personal liability on a 16 volunteer if the liability is a liability that is required under a written law of 17 the State to be insured against. 18 44 Liability not excluded for motor accidents 19 The protection from personal liability conferred on a volunteer by this 20 division does not apply if the liability would, apart from this division, be 21 covered by a CTP insurance policy under the Motor Accident Insurance Act 22 1994, or be recoverable from the Nominal Defendant under that Act. 23

 


 

s 45 26 s 46 Civil Liability Bill 2003 PART 4--EXCLUSION FROM CLAIMING DAMAGES 1 BECAUSE OF PARTICULAR BEHAVIOUR 2 Division 1--Criminal behaviour 3 45 Criminals not to be awarded damages 4 (1) A person does not incur civil liability if the court is satisfied on the 5 balance of probabilities that-- 6 (a) the breach of duty from which civil liability would arise, apart 7 from this section, happened while the person who suffered harm 8 was engaged in conduct that is an indictable offence; and 9 (b) the person's conduct contributed materially to the risk of the 10 harm. 11 (2) Despite subsection (1), the court may award damages in a particular 12 case if satisfied that in the circumstances of the case, subsection (1) would 13 operate harshly and unjustly. 14 (3) If the court decides to award damages under subsection (2), the court 15 must assess damages on the basis that the damages to which the injured 16 person would be entitled, apart from this section, are to be reduced, on 17 account of the injured person's conduct, by 25% or a greater percentage 18 decided by the court to be appropriate in the circumstances of the case. 19 (4) It does not matter whether the person whose conduct is alleged to 20 constitute an indictable offence has been, will be or is or was capable of 21 being proceeded against or convicted of an indictable offence. 22 (5) If the person has been dealt with for the offence, it does not matter 23 whether the person was dealt with on indictment or summarily. 24 Division 2--Intoxication 25 46 Effect of intoxication on duty and standard of care 26 (1) The following principles apply in relation to the effect that a person's 27 intoxication has on the duty and standard of care that the person is owed-- 28 (a) in deciding whether a duty of care arises, it is not relevant to 29 consider the possibility or likelihood that a person may be 30

 


 

s 47 27 s 47 Civil Liability Bill 2003 intoxicated or that a person who is intoxicated may be exposed to 1 increased risk because the person's capacity to exercise 2 reasonable care and skill is impaired as a result of being 3 intoxicated; 4 (b) a person is not owed a duty of care merely because the person is 5 intoxicated; 6 (c) the fact that a person is or may be intoxicated does not of itself 7 increase or otherwise affect the standard of care owed to the 8 person. 9 (2) Subsection (1) does not affect a liability arising out of conduct 10 happening on licensed premises. 11 (3) This section does not operate to create or affect a duty merely 12 because the conduct happened on licensed premises. 13 (4) In this section-- 14 "licensed premises" see the Liquor Act 1992, section 4. 15 47 Presumption of contributory negligence if person who suffers 16 harm is intoxicated 17 (1) This section applies if a person who suffered harm was intoxicated at 18 the time of the breach of duty giving rise to a claim for damages and 19 contributory negligence is alleged by the defendant. 20 (2) Contributory negligence will, subject to this section, be presumed. 21 (3) The person may only rebut the presumption by establishing on the 22 balance of probabilities-- 23 (a) that the intoxication did not contribute to the breach of duty; or 24 (b) that the intoxication was not self-induced. 25 (4) Unless the person rebuts the presumption of contributory negligence, 26 the court must assess damages on the basis that the damages to which the 27 person would be entitled in the absence of contributory negligence are to be 28 reduced, on account of contributory negligence, by 25% or a greater 29 percentage decided by the court to be appropriate in the circumstances of 30 the case. 31 (5) If, in the case of a motor vehicle accident, the person who suffered 32 harm was the driver of a motor vehicle involved in the accident and the 33 evidence establishes-- 34

 


 

s 48 28 s 48 Civil Liability Bill 2003 (a) that the concentration of alcohol in the driver's blood was 1 150 mg or more of alcohol in 100 mL of blood; or 2 (b) that the driver was so much under the influence of alcohol or a 3 drug as to be incapable of exercising effective control of the 4 vehicle; 5 the minimum reduction prescribed by subsection (4) is increased to 50%. 6 48 Presumption of contributory negligence if person who suffers 7 harm relies on care and skill of person known to be intoxicated 8 (1) This section applies to a person who suffered harm ("plaintiff") 9 who-- 10 (a) was at least 16 years at the time of the breach of duty giving rise 11 to the harm; and 12 (b) relied on the care and skill of a person who was intoxicated at the 13 time of the breach of duty ("defendant"); and 14 (c) was aware, or ought reasonably to have been aware, that the 15 defendant was intoxicated. 16 (2) If the harm suffered by the plaintiff was caused through the 17 negligence of the defendant and the defendant alleges contributory 18 negligence on the part of the plaintiff, contributory negligence will, subject 19 to this section, be presumed. 20 (3) The plaintiff may only rebut the presumption if the plaintiff 21 establishes, on the balance of probabilities, that-- 22 (a) the defendant's intoxication did not contribute to the breach of 23 duty; or 24 (b) the plaintiff could not reasonably be expected to have avoided 25 relying on the defendant's care and skill. 26 (4) Unless the plaintiff rebuts the presumption of contributory 27 negligence, the court must assess damages on the basis that the damages to 28 which the plaintiff would be entitled in the absence of contributory 29 negligence are to be reduced, on account of contributory negligence, by 30 25% or a greater percentage decided by the court to be appropriate in the 31 circumstances of the case. 32

 


 

s 49 29 s 49 Civil Liability Bill 2003 (5) The common law defence of voluntary assumption of risk8 does not 1 apply to a matter to which this section applies. 2 49 Additional presumption for motor vehicle accident 3 (1) This section applies to a plaintiff and defendant mentioned in 4 section 48. 5 (2) If-- 6 (a) the breach of duty giving rise to the harm suffered by the plaintiff 7 was a motor vehicle accident; and 8 (b) the plaintiff was a passenger in the motor vehicle; and 9 (c) the motor vehicle was driven by the defendant; and 10 (d) either-- 11 (i) the concentration of alcohol in the defendant's blood was 12 150 mg or more of alcohol in 100 mL of blood; or 13 (ii) the defendant was so much under the influence of alcohol or 14 a drug as to be incapable of exercising effective control of 15 the vehicle; 16 the minimum reduction prescribed by section 48(4) is increased to 50%. 17 (3) The plaintiff is taken, for this section, to rely on the care and skill of 18 the defendant. 19 8 `Volenti non fit injuria'

 


 

s 50 30 s 52 Civil Liability Bill 2003 CHAPTER 3--ASSESSMENT OF DAMAGES FOR 1 PERSONAL INJURY 2 PART 1--PRELIMINARY 3 50 Application of ch 3 4 Subject to section 5,9 this chapter applies only in relation to an award of 5 personal injury damages. 6 51 Definitions for ch 3 7 In this chapter-- 8 "general damages" means damages for-- 9 (a) pain and suffering; or 10 (b) loss of amenities of life; or 11 (c) loss of expectation of life; or 12 (d) disfigurement. 13 "injury" means personal injury. 14 52 Offsetting collateral benefits against damages 15 (1) In the calculation of damages for this chapter, the value of any 16 collateral benefit received or to be received as the result of a personal injury 17 is to be deducted from the damages on the like-against-like principle. 18 (2) The "like-against-like principle" is the principle by which a 19 collateral benefit can be set-off only against heads of damage of the same 20 nature as the collateral benefit. 21 22 Example-- 23 Insurance benefits designed to replace lost income would be set-off against damage for 24 loss of earning capacity but not against general damages. (3) Collateral benefits must be set-off against the relevant head of 25 damages before any relevant damages cap is applied. 26 9 Section 5 (Civil liability excluded from Act)

 


 

s 53 31 s 54 Civil Liability Bill 2003 (4) In this section-- 1 "collateral benefit" does not include-- 2 (a) a charitable benefit; or 3 (b) a statutory social security or a health care benefit; or 4 (c) a benefit payable under a policy of insurance on the death of a 5 person; or 6 (d) another benefit under a policy of insurance that is repayable, 7 under the policy, from an award of damages. 8 PART 2--EXEMPLARY AND SIMILAR DAMAGES 9 53 Exemplary, punitive or aggravated damages can not be awarded 10 (1) A court can not award exemplary, punitive or aggravated damages in 11 relation to a claim for personal injury damages. 12 (2) Subsection (1) does not apply to a claim for personal injury damages 13 if the act that caused the personal injury was-- 14 (a) an unlawful intentional act done with intent to cause personal 15 injury; or 16 (b) an unlawful sexual assault or other unlawful sexual misconduct. 17 PART 3--ASSESSMENT OF DAMAGES 18 54 Notice requiring mitigation of damages 19 (1) If a defendant is not satisfied with the action taken by a plaintiff to 20 mitigate damages, the defendant may give the plaintiff written notice 21 suggesting specified action the plaintiff should take to mitigate damages. 22 (2) The notice may, for example, suggest that-- 23 (a) the plaintiff should undergo medical treatment of a specified 24 kind; or 25

 


 

s 55 32 s 55 Civil Liability Bill 2003 (b) the plaintiff should return to work or take specified steps to 1 obtain employment; or 2 (c) the plaintiff should undergo rehabilitation therapy of a specified 3 kind, or undertake specified programs of rehabilitation and 4 training. 5 (3) Subsection (1) does not limit the plaintiff's duty to mitigate damages. 6 (4) In assessing damages for personal injury, the court must-- 7 (a) consider whether the plaintiff has failed to take reasonable steps 8 to mitigate damages by not following suggestions made under 9 this section; and 10 (b) if the notice suggested that the plaintiff undergo medical 11 treatment or rehabilitation therapy of a specified kind--consider 12 whether the notice was accompanied by an offer by the defendant 13 to pay for the cost of the treatment or therapy; and 14 (c) if it appears the plaintiff has failed to take steps to mitigate 15 damages by not following the suggestions--reduce the plaintiff's 16 damages to an appropriate extent reflecting the failure if, in all 17 the circumstances, the court considers that the plaintiff's failure 18 to follow the suggestions was not reasonable. 19 (5) In this section-- 20 "defendant" means a person against whom a claim for personal injury 21 damages is made whether or not a proceeding for the claim has been 22 started. 23 "plaintiff" means an injured person making a claim for personal injury 24 damages whether or not a proceeding for the claim has been started. 25 55 Damages for loss of earnings or earning capacity 26 (1) In assessing damages for loss of earnings, including in a dependency 27 claim, a court must disregard earnings above the limit fixed by 28 subsection (2). 29 (2) The limit is 3 times average weekly earnings per week. 30

 


 

s 56 33 s 58 Civil Liability Bill 2003 56 When earnings can not be precisely calculated 1 (1) This section applies if a court is considering making an award of 2 damages for loss of earnings that are unable to be precisely calculated by 3 reference to a defined weekly loss. 4 (2) The court may only award damages if it is satisfied that the person 5 has suffered or will suffer loss having regard to the person's age, work 6 history, actual loss of earnings, any permanent impairment and any other 7 relevant matters. 8 (3) If the court awards damages, the court must state the assumptions on 9 which the award is based and the methodology it used to arrive at the 10 award. 11 (4) The limitation mentioned in section 55(2) applies to an award of 12 damages under this section. 13 57 Damages for loss of superannuation entitlements 14 (1) The maximum amount of damages that may be awarded to an 15 employee for economic loss due to the loss of employer superannuation 16 contributions is the relevant percentage of damages payable (in accordance 17 with this part) for the deprivation or impairment of the earning capacity on 18 which the entitlement to the contributions is based. 19 (2) The relevant percentage is the percentage of earnings that is the 20 minimum percentage required by a written law to be paid on the 21 employee's behalf as employer superannuation contributions. 22 58 Discount rate to be applied in calculating the present value of 23 future loss or gratuitous services 24 (1) This section applies if-- 25 (a) a person is to be compensated for future loss; or 26 (b) damages are to be awarded for gratuitous services; 27 and an actuarial multiplier is to be used to calculate the present value of 28 future loss or gratuitous services. 29 (2) A discount rate of 5% is to be applied in deciding the actuarial 30 multiplier. 31

 


 

s 59 34 s 60 Civil Liability Bill 2003 59 Damages for loss of consortium or loss of servitium 1 (1) A court must not award damages for loss of consortium or loss of 2 servitium unless-- 3 (a) the injured person died as a result of injuries suffered; or 4 (b) general damages for the injured person are assessed (before 5 allowing for contributory negligence) at $30 000 or more. 6 (2) The court must not assess damages for loss of servitium above the 7 limit fixed by subsection (3). 8 (3) The limit is 3 times average weekly earnings per week. 9 60 Damages for gratuitous services 10 (1) Damages for gratuitous services, including damages for loss of 11 gratuitous services in a dependency claim, are not to be awarded unless-- 12 (a) the services are necessary; and 13 (b) the need for the services arises solely out of the injury in relation 14 to which damages are awarded; and 15 (c) the services are provided, or are to be provided-- 16 (i) for at least 6 hours per week; and 17 (ii) for at least 6 months. 18 (2) Damages, other than damages in a dependency claim, are not to be 19 awarded for gratuitous services if gratuitous services of the same kind were 20 being provided for the injured person before the date of the incident. 21 (3) Damages, other than damages in a dependency claim, are not to be 22 awarded for gratuitous services replacing services provided by an injured 23 person, or that would have been provided by the injured person if the injury 24 had not been suffered, for others outside the injured person's household. 25 (4) In assessing damages for gratuitous services, other than in a 26 dependency claim, a court must take into account-- 27 (a) any offsetting benefit the service provider obtains through 28 providing the services; and 29 (b) periods for which the services are not required or are not likely to 30 be required. 31

 


 

s 61 35 s 62 Civil Liability Bill 2003 (5) In this section-- 1 "injured person" includes a person who is fatally injured. 2 61 Interest 3 (1) A court can not order the payment of interest on awards for general 4 damages. 5 (2) Interest awarded on damages compensating past monetary loss-- 6 (a) must not be more than interest at the appropriate rate; and 7 (b) must be related in an appropriate way to the period over which 8 the loss was incurred. 9 (3) The appropriate rate is the rate for 10 year Treasury bonds published 10 by the Reserve Bank of Australia under `Interest rates and yields--capital 11 market' as at the beginning of the quarter in which the award of interest is 12 made. 13 14 Example of calculation of interest for this section-- 15 Suppose that past monetary loss consists of medical expenses that have been incurred 16 at a uniform rate over a particular period. The interest to be awarded would be 17 calculated under the following formula-- 18 A = am/100 x p x 0.5 19 where-- 20 "A" is the amount of the award of interest. 21 "a" is a percentage rate decided by the court subject to the limit fixed in 22 subsection (2). 23 "m" is the aggregate of the medical expenses. 24 "p" is the period over which the medical expenses have been incurred (expressed 25 in years). 62 Assessment by court of injury scale 26 If general damages are to be awarded by a court, the court must assess an 27 injury scale value as follows-- 28 (a) the injured person's total general damages must be assigned a 29 numerical value ("injury scale value") on a scale running 30 from 0 to 100; 31 (b) the scale reflects 100 equal gradations of general damages, from 32 a case in which an injury is not severe enough to justify any 33

 


 

s 63 36 s 63 Civil Liability Bill 2003 award of general damages to a case in which an injury is of the 1 gravest conceivable kind; 2 (c) in deciding the injury scale value, the court is to consider-- 3 (i) the range of injury scale values for similar injuries, 4 prescribed under a regulation; and 5 (ii) the injury scale values attributed to similar injuries in prior 6 proceedings. 7 63 Calculation of general damages 8 The general damages must be calculated in relation to an injury arising 9 after 1 December 2002 as follows-- 10 (a) if the scale value of the injury is assessed as 5 or less--by 11 multiplying the scale value by $1 000; 12 (b) if the scale value of the injury is assessed as 10 or less but more 13 than 5--by adding to $5 000 an amount calculated by 14 multiplying the number by which the scale value exceeds 5 by 15 $1 200; 16 (c) if the scale value of the injury is assessed as 15 or less but more 17 than 10--by adding to $11 000 an amount calculated by 18 multiplying the number by which the scale value exceeds 10 by 19 $1 400; 20 (d) if the scale value of the injury is assessed as 20 or less but more 21 than 15--by adding to $18 000 an amount calculated by 22 multiplying the number by which the scale value exceeds 15 by 23 $1 600; 24 (e) if the scale value of the injury is assessed as 25 or less but more 25 than 20--by adding to $26 000 an amount calculated by 26 multiplying the number by which the scale value exceeds 20 by 27 $1 800; 28 (f) if the scale value of the injury is assessed as 30 or less but more 29 than 25--by adding to $35 000 an amount calculated by 30 multiplying the number by which the scale value exceeds 25 by 31 $2 000; 32 (g) if the scale value of the injury is assessed as 35 or less but more 33 than 30--by adding to $45 000 an amount calculated by 34

 


 

s 63 37 s 63 Civil Liability Bill 2003 multiplying the number by which the scale value exceeds 30 by 1 $2 200; 2 (h) if the scale value of the injury is assessed as 40 or less but more 3 than 35--by adding to $56 000 an amount calculated by 4 multiplying the number by which the scale value exceeds 35 by 5 $2 400; 6 (i) if the scale value of the injury is assessed as 50 or less but more 7 than 40--by adding to $68 000 an amount calculated by 8 multiplying the number by which the scale value exceeds 40 by 9 $2 580; 10 (j) if the scale value of the injury is assessed as 60 or less but more 11 than 50--by adding to $93 800 an amount calculated by 12 multiplying the number by which the scale value exceeds 50 by 13 $2 760; 14 (k) if the scale value of the injury is assessed as 70 or less but more 15 than 60--by adding to $121 400 an amount calculated by 16 multiplying the number by which the scale value exceeds 60 by 17 $2 940; 18 (l) if the scale value of the injury is assessed as 80 or less but more 19 than 70--by adding to $150 800 an amount calculated by 20 multiplying the number by which the scale value exceeds 70 by 21 $3 120; 22 (m) if the scale value of the injury is assessed as 90 or less but more 23 than 80--by adding to $182 000 an amount calculated by 24 multiplying the number by which the scale value exceeds 80 by 25 $3 300; 26 (n) if the scale value of the injury is assessed as 100 or less but more 27 than 90--by adding to $215 000 an amount calculated by 28 multiplying the number by which the scale value exceeds 90 by 29 $3 500. 30

 


 

s 64 38 s 67 Civil Liability Bill 2003 PART 4--STRUCTURED SETTLEMENTS 1 64 Definition for pt 4 2 In this part-- 3 "structured settlement" means an agreement providing for the payment 4 of all or part of an award of damages in the form of periodic payments 5 funded by an annuity or other agreed means. 6 65 Court required to inform parties of proposed award 7 (1) The purpose of this section is to enable the court to give the parties to 8 a proceeding a reasonable opportunity to negotiate a structured settlement. 9 (2) A court that decides to make an award for future loss (not including 10 interest) of more than $100 000 must first notify all the parties to the 11 proceeding of the terms of the award it proposes to make. 12 (3) The notification must set out the amount of each component part of 13 the proposed award. 14 66 Court may make consent order for structured settlement 15 A court may, on the application of the parties to a claim for personal 16 injury damages, make an order approving of or in the terms of a structured 17 settlement even though the payment of damages is not in the form of a 18 lump sum award of damages. 19 67 Obligation of legal practitioners to provide advice 20 A lawyer engaged by a plaintiff must advise the plaintiff, in writing, 21 about the following if the plaintiff proposes to negotiate a settlement of a 22 claim for personal injury damages-- 23 (a) the availability of structured settlements; 24 (b) the desirability of the plaintiff obtaining independent financial 25 advice about structured settlements and lump sum settlements of 26 the claim. 27

 


 

s 68 39 s 71 Civil Liability Bill 2003 68 Offer of structured settlement--legal costs 1 (1) The Uniform Civil Procedure Rules 1999, chapter 11, part 510 2 extends to an offer of compromise by way of a structured settlement on a 3 claim for personal injury damages. 4 (2) In that case, the court is to have regard to the cost to the defendant of 5 the proposed structured settlement as compared to the lump sum payment 6 of damages when deciding whether a reasonable offer of compromise has 7 been made. 8 CHAPTER 4--MISCELLANEOUS 9 PART 1--EXPRESSIONS OF REGRET 10 69 Application of pt 1 11 This part applies only in relation to a claim for personal injury damages. 12 70 Definition for pt 1 13 In this part-- 14 "liability" includes the following-- 15 (a) fault; 16 (b) negligence. 17 71 Purpose of pt 1 18 The purpose of this part is to allow an individual to express regret about 19 an incident that may give rise to an action for personal injury damages 20 without being concerned that the expression of regret may be construed or 21 used as an admission of liability on a claim or in a proceeding based on a 22 claim arising out of the incident. 23 10 Uniform Civil Procedure Rules 1999, chapter 11 (Evidence), part 5 (Expert evidence)

 


 

s 72 40 s 75 Civil Liability Bill 2003 72 Meaning of "expression of regret" 1 An "expression of regret" made by an individual in relation to an 2 incident alleged to give rise to an action for damages is any oral or written 3 statement expressing regret for the incident to the extent that it does not 4 contain an admission of liability on the part of the individual or someone 5 else. 6 73 Expressions of regret are inadmissible 7 An expression of regret made by an individual on or after 18 June 2002 8 in relation to an incident alleged to give rise to an action for damages at any 9 time before a civil proceeding is started in a court in relation to the incident 10 is not admissible in the proceeding. 11 12 Example-- 13 Suppose a patient attended a health service and was diagnosed as suffering from gall 14 stones. Removal of the gall bladder was recommended for treatment of the condition. 15 The procedure was attempted, but there was an adverse outcome. 16 A health care provider stated that the provider was sorry that there was an adverse 17 outcome. 18 The statement is inadmissible in any future proceeding against the health care provider 19 in relation to a personal injury allegedly arising out of the procedure. PART 2--JURY TRIALS 20 74 Exclusion of jury trial 21 A proceeding in a court based on a claim for personal injury damages 22 must be decided by the court sitting without a jury. 23 PART 3--GENERAL 24 75 Regulation-making power 25 (1) The Governor in Council may make regulations under this Act. 26

 


 

s 76 41 s 77 Civil Liability Bill 2003 (2) A regulation may do any of the following-- 1 (a) prescribe offences for a contravention of a regulation, and fix a 2 maximum penalty of not more than 20 penalty units for a 3 contravention; 4 (b) prescribe fees payable under this Act. 5 76 Regulations may contain transitional provisions 6 (1) A regulation may make provision about any matter for which this Act 7 does not make provision or sufficient provision and it is necessary or 8 convenient to make provision to assist the transition from the operation of 9 the law as in force immediately before the commencement of this section. 10 (2) A regulation under this section may have retrospective operation to a 11 date not earlier than the commencement. 12 (3) A regulation under this section may have effect despite any provision 13 of this Act other than this section. 14 (4) A regulation under this section-- 15 (a) may only be made within 2 years after the commencement; and 16 (b) unless the regulation sooner expires or is repealed, expires 1 year 17 after the regulation commences. 18 (5) This section expires 3 years after the commencement. 19 CHAPTER 5--TRANSITIONAL PROVISIONS 20 77 Prescribed entities for ss 26 and 27 21 (1) Subsection (2) applies until a regulation under this Act prescribes an 22 entity for section 26(1)(a). 23 (2) The entities mentioned in the Personal Injuries Proceedings 24 Regulation 2002, section 12, immediately before the commencement of 25 this section are taken to be prescribed for section 26(1)(a) and 27(1). 26

 


 

s 78 42 s 81 Civil Liability Bill 2003 78 Jury trials 1 Despite the omission of the Personal Injuries Proceedings Act 2002, 2 section 5811 by chapter 6, part 1, of this Act and despite section 7412 of this 3 Act, a jury trial may be started or continued if it could have been started or 4 continued under the Personal Injuries Proceedings Act 2002, section 77,13 5 immediately before the commencement of this section. 6 79 Amendment of regulation in sch 1 does not affect powers of 7 Governor in Council 8 The amendment of a regulation in schedule 1 does not affect the power 9 of the Governor in Council to further amend the regulation or to repeal it. 10 CHAPTER 6--AMENDMENT OF ACTS AND 11 REGULATION 12 PART 1--AMENDMENT OF PERSONAL INJURIES 13 PROCEEDINGS ACT 2002 14 80 Act amended in pt 1 15 This part amends the Personal Injuries Proceedings Act 2002. 16 81 Amendment of s 6 (Application of Act) 17 (1) Section 6(2)(b)-- 18 omit, insert-- 19 `(b) injury as defined under the WorkCover Queensland Act 1996 for 20 which-- 21 (i) an award of compensation under that Act may be made; or 22 11 Personal Injuries Proceedings Act 2002, section 58 (Exclusion of jury trial) 12 Section 74 (Exclusion of jury trial) 13 Personal Injuries Proceedings Act 2002, section 77(Jury trials)

 


 

s 82 43 s 83 Civil Liability Bill 2003 (ii) damages to which that Act applies may be awarded.'. 1 (2) Section 6(3), `, other than section 58,'-- 2 omit. 3 (3) Section 6(4)-- 4 omit, insert-- 5 `(4) In addition, sections 40(2) and 56 do not apply to personal injury if 6 the act causing the personal injury is an unlawful intentional act done with 7 intent to cause personal injury or is unlawful sexual assault or other 8 unlawful sexual misconduct.'. 9 82 Amendment of s 7 (Provisions of this Act that are provisions of 10 substantive law) 11 Section 7, after `divisions 1,'-- 12 insert-- 13 `1A,'. 14 83 Amendment of s 9 (Notice of a claim) 15 (1) Section 9-- 16 insert-- 17 `(1A) The approved form must provide for the notice to be in 2 parts, 18 namely part 1 and part 2. 19 `(1B) The approved form may provide that some or all information 20 included in the notice be verified by statutory declaration.'. 21 (2) Section 9-- 22 insert-- 23 `(2A) A regulation may require information or other material to 24 accompany a particular part of a notice of a claim.'. 25 (3) Section 9(3), `The notice'-- 26 omit, insert-- 27 `Part 1 of the notice'. 28

 


 

s 83 44 s 83 Civil Liability Bill 2003 (4) Section 9-- 1 insert-- 2 `(3A) Part 2 of the notice must be given, to the person to whom part 1 of 3 the notice was given, within 2 months after the earlier of the following to 4 happen-- 5 (a) the person to whom part 1 of the notice was given complies with 6 section 10(1); 7 (b) the person to whom part 1 of the notice was given is, under 8 section 13, conclusively presumed to be satisfied part 1 of the 9 notice is a complying part 1 notice of claim.'. 10 (5) Section 9(5)-- 11 omit, insert-- 12 `(5) If part 1 of the notice is not given within the period prescribed under 13 subsection (3), the obligation to give the notice under subsection (1) 14 continues and a reasonable excuse for the delay must be given in part 1 of 15 the notice or by separate notice to the person against whom the proceeding 16 is proposed to be started.'. 17 (6) Section 9(6), `the notice'-- 18 omit, insert-- 19 `part 1 of the notice'. 20 (7) Section 9(6)(b), `notice of a claim under this section'-- 21 omit, insert-- 22 `part 1 of the notice'. 23 (8) Section 9(7), `notice is given under subsection (1)'-- 24 omit, insert-- 25 `part 1 of a notice of a claim is given'. 26 (9) Section 9(7), `the notice'-- 27 omit, insert-- 28 `it'. 29

 


 

s 84 45 s 84 Civil Liability Bill 2003 (10) Section 9-- 1 insert-- 2 `(7A) Subsection (7)(a) does not require the person (the "first person") 3 to whom part 1 of the notice is given by a claimant to give a copy of it to 4 another person if the claimant has advised the first person that the claimant 5 has given, or will give, a copy of it to the other person.'. 6 (11) Section 9(8)-- 7 omit, insert-- 8 `(8) If the person against whom a proceeding based on a claim is 9 proposed to be started is the State or an entity with the privileges and 10 immunities of the State, the giving of part 1 of a notice of a claim is 11 effective only if it-- 12 (a) is given to the Crown solicitor; and 13 (b) identifies the government department or entity the claimant 14 considers responsible for the conduct that caused the injury. 15 `(8A) If part 1 of a notice of a claim is given under subsection (8), the 16 government department or entity identified under subsection (8)(b) is taken 17 to be the person to whom part 1 of the notice of a claim is given.'. 18 (12) Section 9(9), `a notice'-- 19 omit, insert-- 20 `part 1 of a notice'. 21 84 Amendment of s 10 (Person to whom notice of a claim is given 22 must give preliminary response to claimant) 23 (1) Section 10(1), `notice of a claim'-- 24 omit, insert-- 25 `part 1 of a notice of a claim'. 26 (2) Section 10(1), `the notice'-- 27 omit, insert-- 28 `part 1 of the notice'. 29

 


 

s 85 46 s 86 Civil Liability Bill 2003 (3) Section 10(5), `another notice'-- 1 omit, insert-- 2 `another part 1 of a notice'. 3 85 Amendment of s 11 (Acknowledgement that a person is a proper 4 respondent to a claim is not an admission of liability) 5 Section 11-- 6 insert-- 7 `(2) Also, a person does not breach a term or condition of any relevant 8 insurance policy only because the person gives notice under subsection (1). 9 `(3) Further, an insurer does not agree to indemnify a person under any 10 relevant insurance policy only because the insurer gives notice on behalf of 11 the person under subsection (1).'. 12 86 Amendment of s 12 (Respondent's response to the notice of a 13 claim) 14 (1) Section 12, heading-- 15 omit, insert-- 16 `12 Respondent's response to part 1 of a notice of a claim'. 17 (2) Section 12(1), `whom a notice'-- 18 omit, insert-- 19 `whom part 1 of a notice'. 20 (3) Section 12(2)(a)-- 21 omit, insert-- 22 `(a) stating whether the respondent is satisfied that part 1 of the notice 23 is a complying part 1 notice of claim; and'. 24

 


 

s 87 47 s 89 Civil Liability Bill 2003 87 Replacement of s 13 (Consequences for respondent of failure to 1 respond to notice of a claim) 2 Section 13-- 3 omit, insert-- 4 `13 Consequences for respondent of failure to respond to part 1 of a 5 notice of a claim 6 If a claimant gives part 1 of a notice of a claim under this division or 7 purportedly under this division to a person against whom a proceeding is 8 proposed to be started, and the person does not respond to it under 9 section 1214 within the prescribed period under that section, the person is 10 conclusively presumed to be satisfied it is a complying part 1 notice of 11 claim.'. 12 88 Amendment of s 14 (Claimant may add other respondents) 13 (1) Section 14(1)(a)-- 14 omit, insert-- 15 `(a) part 1 of a notice of a claim mentioned in section 9; and'. 16 (2) Section 14(3)(a)-- 17 omit, insert-- 18 `(a) the person must respond to part 1 of the notice as if it were given 19 under section 9; and'. 20 89 Amendment of s 16 (Respondent may add other person as 21 contributor) 22 Section 16(1), `complying notice'-- 23 omit, insert-- 24 `complying part 1 notice'. 25 14 Section 12 (Respondent's response to part 1 of a notice of a claim)

 


 

s 90 48 s 91 Civil Liability Bill 2003 90 Amendment of s 18 (Claimant's failure to give notice of a claim) 1 (1) Section 18, heading-- 2 omit, insert-- 3 `18 Claimant's failure to give part 1 of a notice of a claim'. 4 (2) Section 18(1), `complying notice'-- 5 omit, insert-- 6 `complying part 1 notice'. 7 (3) Section 18(1)(a), `whom notice'-- 8 omit, insert-- 9 `whom part 1 of a notice'. 10 (4) Section 18(1)(a)(i), `the notice'-- 11 omit, insert-- 12 `part 1 of the notice'. 13 (5) Section 18(1)(a)(ii)-- 14 omit, insert-- 15 `(ii) is conclusively presumed to be satisfied it is a complying 16 part 1 notice of claim under section 13; or'. 17 91 Amendment of s 20 (Respondent must attempt to resolve claim) 18 (1) Section 20(1), `complying notice'-- 19 omit, insert-- 20 `complying part 1 notice'. 21 (2) Section 20(1)(c), `the notice'-- 22 omit, insert-- 23 `part 2 of the notice'. 24 (3) Section 20(2), from `If a' to `when--'-- 25 omit, insert-- 26 `If part 1 of a notice of a claim is not a complying part 1 notice of claim, 27 a respondent is taken to have been given a complying part 1 notice of claim 28 when--'. 29

 


 

s 91 49 s 91 Civil Liability Bill 2003 92 Insertion of new ch 2, pt 1, div 1A 1 Chapter 2, part 1-- 2 insert-- 3 `Division 1A--Special provisions for notification of claims in relation to 4 injuries to children arising out of medical treatment 5 `20A Limitation of actions not affected 6 `This division does not limit or affect the Limitation of Actions Act 1974. 7 `20B Application of div 1A 8 `This division applies if the claimant is, or at the time of the cause of 9 action arose was, a child and the personal injury to which the claim relates 10 arises or arose out of the provision of medical treatment to the claimant. 11 `20C Notice of claim for damages for child 12 `(1) A parent or legal guardian of the claimant must give part 1 of a 13 notice of a claim under section 9 for the claimant before the earlier of the 14 following days-- 15 (a) the day 6 years after the day when the parent or legal guardian 16 knew or ought reasonably to have known that the personal injury 17 had occurred; 18 (b) the day 1 year after the day the parent or legal guardian first 19 consults a lawyer about the possibility of seeking damages for 20 the personal injury. 21 `(2) A lawyer acting for a parent or legal guardian required by 22 subsection (1) to give part 1 of a notice of a claim for a child must, as soon 23 as practicable after being instructed by the parent or legal guardian to give 24 part 1 of the notice to the person against whom the proceeding is proposed 25 to be started, give part 1 of the notice to that person. 26 `(3) A failure by a lawyer to comply with subsection (2) is 27 unprofessional conduct or practice. 28

 


 

s 91 50 s 91 Civil Liability Bill 2003 `20D Respondent may apply for late claim not to proceed 1 `If part 1 of the notice is given after the time mentioned in section 20C, 2 the person to whom part 1 of the notice is given may apply to the court for 3 an order that the claim not proceed further. 4 `20E To what the court must have regard in deciding application 5 `In deciding an application under section 20D, the court must consider 6 the justice of the case having regard to the following-- 7 (a) the extent of the injuries; 8 (b) the reason for the delay in giving part 1 of the notice; 9 (c) any prejudice suffered by the applicant as a result of the delay; 10 (d) the nature of the parties' conduct; 11 (e) any other relevant matter. 12 `20F Court may order that certain costs not be recovered 13 `(1) This section applies if an application under section 20D is 14 dismissed. 15 `(2) The claimant is not entitled to recover any of the following amounts 16 in relation to any period before the giving of part 1 of the notice, unless the 17 court orders otherwise-- 18 (a) an amount for costs incurred by the claimant's parent or legal 19 guardian for medical or other expenses, or legal costs paid or 20 incurred; 21 (b) an amount for gratuitous services provided by the parent or legal 22 guardian. 23 `20G Notice of adverse incidents 24 `(1) A person who provides medical treatment to a child may give a 25 parent or legal guardian of the child a written notice of an adverse event 26 arising out of the treatment. 27

 


 

s 91 51 s 91 Civil Liability Bill 2003 `(2) The notice may be accompanied by an expression of regret under the 1 Civil Liability Act 2003, chapter 4, part 115 or an offer to remedy any harm 2 suffered as a result of the incident, or both an expression of regret and offer. 3 `(3) A notice of an adverse event is not an admission of liability and is 4 inadmissible in any subsequent proceeding in relation to the event, other 5 than a proceeding mentioned in section 20H. 6 `(4) A person who gives a notice of an adverse event must as soon as 7 practicable after giving the notice give to the public trustee a copy of the 8 notice and any document provided to a parent or legal guardian with the 9 notice. 10 `20H Time by which claim must be made after notice of adverse 11 incident 12 `(1) If a notice of an adverse event is given, and part 1 of a notice of a 13 claim under section 9 is not given within the time prescribed under 14 section 20C, notice of a claim under section 9 can be given only with the 15 leave of the court. 16 `(2) The onus of showing why the claim should proceed is with the 17 claimant. 18 `20I Matters to which the court must have regard in deciding 19 application 20 `In deciding whether leave should be granted under section 20H to give a 21 notice of a claim, the court must consider the justice of the case having 22 regard to the following-- 23 (a) the extent of the injuries; 24 (b) the reason for the delay in giving part 1 of the notice; 25 (c) any prejudice suffered by the respondent as a result of the delay; 26 (d) the nature of the parties' conduct; 27 (e) any other relevant matter. 28 15 Civil Liability Act 2003, chapter 4 (Miscellaneous), part 1 (Expressions of regret)

 


 

s 95 52 s 95 Civil Liability Bill 2003 `20J Court may order that certain costs not be recovered 1 `(1) This section applies if the court grants leave to give notice of a claim 2 under section 20H. 3 `(2) The claimant is not entitled to recover any of the following amounts 4 in relation to any period before giving part 1 of the notice of a claim, unless 5 the court orders otherwise-- 6 (a) an amount for costs incurred by the claimant's parent or legal 7 guardian for medical or other expenses, or legal costs paid or 8 incurred; 9 (b) an amount for gratuitous services provided by the parent or legal 10 guardian.'. 11 93 Omission of s 26 (Mitigation of damages) 12 Section 26-- 13 omit. 14 94 Amendment of s 27 (Duty of respondent to give documents and 15 information to claimant) 16 (1) Section 27(1)(a), after `possession'-- 17 insert-- 18 `that are directly relevant to a matter in issue in the claim'. 19 (2) Section 27(2)(a), `complying notice'-- 20 omit, insert-- 21 `complying part 1 notice'. 22 95 Insertion of new s 29A 23 After section 29-- 24 insert-- 25 `29A Alternative provision if number of pages exceeds 200 26 `(1) This section applies despite section 27, 28 or 29 (a "relevant 27 section"). 28

 


 

s 96 53 s 96 Civil Liability Bill 2003 `(2) This section applies to the extent a relevant section requires a person 1 (a "relevant person") to give copies of documents or other things to 2 someone else and the total number of pages of the copies exceeds 3 200 pages. 4 `(3) Within the time a relevant person would, apart from this section, be 5 required to give copies of documents or other things to someone else under 6 a relevant section, the relevant person need only offer the other person a 7 reasonable opportunity to inspect the documents or other things. 8 `(4) If the other person, whether on inspection or otherwise, by written 9 notice given to the relevant person, requires the relevant person to give the 10 other person copies of some or all of the documents or other things, the 11 relevant person must comply with the requirement in the time mentioned in 12 subsection (5). 13 `(5) For subsection (4), the time is-- 14 (a) if the total number of pages does not exceed 200 pages--1 month 15 after the requirement is made under the subsection; or 16 (b) otherwise--1 month after payment by the other person of an 17 amount of 50c for each page the total number of pages 18 exceeds 200 pages. 19 `(6) If a relevant person does not act under subsection (3), the relevant 20 section concerned continues to apply.'. 21 96 Replacement of s 34 (No requirement to give documents twice) 22 Section 34-- 23 omit, insert-- 24 `34 No requirement to give documents or other information twice or 25 if already in other party's possession 26 `No provision of this Act requires a party to give a document or other 27 information to another party if the document or information has already 28 been given to the other party under another provision or is otherwise 29 already in the possession of the other party.'. 30

 


 

s 97 54 s 99 Civil Liability Bill 2003 97 Amendment of s 36 (Compulsory conference) 1 (1) Section 36(3)(a), `complying notice'-- 2 omit, insert-- 3 `complying part 1 notice'. 4 (2) Section 36(3)(a), `a notice'-- 5 omit, insert-- 6 `part 1 of a notice'. 7 (2) Section 36(3)(b)-- 8 omit, insert-- 9 `(b) if, under section 12,16 a person to whom part 1 of a notice of a 10 claim is given gives notice to the claimant that the person is a 11 proper respondent to the claim--the day 6 months after the 12 person gives notice or, if there is more than 1 person to whom 13 part 1 of a notice of a claim is given, the day 6 months after the 14 day after the last person gives notice to the claimant.'. 15 98 Amendment of s 42 (Time for starting proceeding) 16 (1) Section 42(2)(a), `complying notice'-- 17 omit, insert-- 18 `complying part 1 notice'. 19 (2) Section 42(2)(a), `a notice'-- 20 omit, insert-- 21 `part 1 of a notice'. 22 99 Amendment of s 43 (Need for urgent proceeding) 23 Section 43(5(b), `49,'-- 24 omit. 25 16 Section 12 (Respondent's response to part 1 of a notice of a claim)

 


 

s 103 55 s 105 Civil Liability Bill 2003 100 Omission of ch 2, pt 2 (Expressions of regret) 1 Chapter 2, part 2-- 2 omit. 3 101 Omission of ss 49-55 4 Sections 49 to 55-- 5 omit. 6 102 Omission of s 58 (Exclusion of jury trial) 7 Section 58-- 8 omit. 9 103 Amendment of s 59 (Alteration of period of limitation) 10 (1) Section 59(1), `notice'-- 11 omit, insert-- 12 `part 1 notice'. 13 (2) Section 59(2)(a), `the notice'-- 14 omit, insert-- 15 `the complying part 1 notice'. 16 104 Omission of ch 2, pt 4 (Structured settlements) 17 Chapter 2, part 4-- 18 omit. 19 105 Insertion of new s 67A 20 After section 67-- 21 insert-- 22 `67A Exemption from s 67(3) and (4) 23 `(1) A person does not commit an offence against section 67(3)(a) or 24 (4)(a) if-- 25

 


 

s 106 56 s 106 Civil Liability Bill 2003 (a) the person gives the potential claimant, or someone on the 1 potential claimant's behalf, the name, address or telephone 2 number of a particular lawyer or firm of lawyers (the 3 "information"); and 4 (b) the person, in giving the information, is acting on behalf of a 5 community legal service or industrial organisation; and 6 (c) the community legal service or industrial organisation approved 7 of the giving of that information by the person. 8 `(2) In this section-- 9 "community legal service" means a corporation, whose business is not 10 carried on for the profit or gain of its members, that provides free legal 11 services to the community or a section of the community. 12 "industrial organisation" means a federal organisation, or an 13 organisation, as defined under the Industrial Relations Act 1999, 14 section 409.'. 15 106 Insertion of new s 73A 16 After section 73-- 17 insert-- 18 `73A Proceeding 19 `(1) A proceeding for an offence against this Act is to be taken in a 20 summary way under the Justices Act 1886 before a magistrate on the 21 complaint of-- 22 (a) the Attorney-General; or 23 (b) a person authorised by the Attorney-General to take the 24 proceeding. 25 `(2) The proceeding must start-- 26 (a) within 1 year after the commission of the offence; or 27 (b) within 6 months after the commission of the offence comes to the 28 knowledge of the complainant, but not later than 2 years after the 29 commission of the offence. 30 `(3) A statement in a complaint that-- 31 (a) the complainant is authorised by the Attorney-General to take the 32 proceeding; or 33

 


 

s 107 57 s 107 Civil Liability Bill 2003 (b) the commission of the alleged offence came to the knowledge of 1 the complainant on a particular date; 2 is evidence of the authorisation or when the offence came to the knowledge 3 of the complainant.'. 4 107 Insertion of new ch 4, pt 3 5 After section 77E-- 6 insert-- 7 `PART 3--TRANSITIONAL PROVISIONS FOR CIVIL 8 LIABILITY ACT 2003 9 `78 Definitions for pt 3 10 In this part-- 11 "commencement" means the commencement of the provision in which 12 the term is used. 13 "pre-amended Act" means this Act as in force before the commencement 14 of the Civil Liability Act 2003, chapter 6, part 1.17 15 `79 Notice of a claim given under the pre-amended Act 16 `(1) This section applies if a notice of a claim has been given under 17 section 9 or 14 of the pre-amended Act. 18 `(2) The prescribed sections of the pre-amended Act continue to apply to 19 the notice as if the Civil Liability Act 2003, chapter 6, part 1, had not 20 commenced. 21 `(3) For subsection (2), the definition "complying notice of claim" in the 22 schedule of the pre-amended Act also continues to apply. 23 `(4) In this section-- 24 "prescribed sections" means sections 9, 10, 12, 13, 14, 16, 18, 20, 25 27(2)(a), 36, 42 and 59. 26 17 Civil Liability Act 2003, chapter 6 (Amendment of Acts and regulation), part 1 (Amendment of Personal Injuries Proceedings Act 2002)

 


 

s 108 58 s 109 Civil Liability Bill 2003 `80 Special provision for notification of claims in relation to 1 injuries to children arising out of medical treatment 2 `(1) This section applies if the day mentioned for a claim in 3 section 20C(1)(a) or (b) occurred before the commencement and a period 4 of limitation has not ended in relation to the claim. 5 `(2) For section 20C(1)(a), the day when the parent or legal guardian 6 knew or ought reasonably to have known that the personal injury had 7 occurred, is taken to be the date of commencement. 8 `(3) For section 20C(1)(b), the day the parent or legal guardian first 9 consults a lawyer about the possibility of seeking damages for the personal 10 injury, is taken to be the date of commencement. 11 108 Amendment of schedule (Dictionary) 12 (1) Schedule, definitions "complying notice of claim" and "expression of 13 regret"-- 14 omit. 15 (2) Schedule-- 16 insert-- 17 ` "complying part 1 notice of claim" means part 1 of a notice of a claim 18 given under section 9 or 14 that is given as required under chapter 2, 19 part 1, division 1.'. 20 PART 2--OTHER AMENDMENTS 21 109 Acts and regulation amended in sch 1 22 Schedule 1 amends the Acts and regulation it mentions. 23

 


 

59 Civil Liability Bill 2003 SCHEDULE 1 1 AMENDMENT OF ACTS AND REGULATION 2 section 109 3 LAW REFORM ACT 1995 4 1 Part 3, division 1, heading-- 5 omit, insert-- 6 `Division 1--Preliminary 7 `4A Application of part 8 This part applies subject to the Civil Liability Act 2003.'. 9 MOTOR ACCIDENT INSURANCE ACT 1994 10 1 Section 4, definition "expression of regret"-- 11 omit. 12 2 Part 4, division 3A-- 13 omit. 14 3 Section 54-- 15 omit. 16

 


 

60 Civil Liability Bill 2003 SCHEDULE 1 (continued) 4 Section 55-- 1 omit, insert-- 2 `55 Exemplary, punitive or aggravated damages 3 `(1) Despite the Civil Liability Act 2003, section 53, if the court is of 18 4 the opinion that the conduct of an insured person is so reprehensible that an 5 award of exemplary, punitive or aggravated damage is justified, the court 6 may give a separate judgment against the insured person for the payment of 7 exemplary, punitive or aggravated damages. 8 `(2) An insured person is not entitled, under a CTP insurance policy, to 9 an indemnity against an award of exemplary, punitive or aggravated 10 damages.'. 11 5 Sections 55A to 55E-- 12 omit. 13 6 Section 56-- 14 omit. 15 7 Part 4, division 6B-- 16 omit. 17 18 Civil Liability Act 2003, section 53 (Exemplary, punitive or aggravated damages can not be awarded)

 


 

61 Civil Liability Bill 2003 SCHEDULE 1 (continued) PERSONAL INJURIES PROCEEDINGS REGULATION 1 2002 2 1 Section 5-- 3 omit, insert-- 4 `5 Notice of claim--documents for Act, s 9(2)(c) 5 `(1) For section 9(2)(c) of the Act, part 1 of the notice of a claim must be 6 accompanied by the following documents-- 7 (a) for a claim, other than a health care claim, a copy of any 8 certificate signed by a doctor relevant to the personal injury to 9 which the claim relates that is in the claimant's possession; 10 (b) for a dependency claim, a copy of the injured person's death 11 certificate; 12 (c) for a health care claim, a copy of any advice or warnings 13 provided to the injured person by a health care provider about the 14 treatment alleged to have given rise to the personal injury that is 15 in the claimant's possession; 16 (d) for a health care claim, a copy of any consent provided to the 17 health care provider by the injured person about the treatment 18 alleged to have given rise to the personal injury that is in the 19 claimant's possession. 20 (2) For section 9(2)(c) of the Act, part 2 of the notice of a claim must be 21 accompanied by a copy of any other document relevant to the personal 22 injury, economic loss, treatment or rehabilitation that is in the claimant's 23 possession.'. 24 2 Section 6(a), `the notice'-- 25 omit, insert-- 26 `part 1 of the notice'. 27

 


 

62 Civil Liability Bill 2003 SCHEDULE 1 (continued) 3 Section 7(1)(a), `a notice'-- 1 omit, insert-- 2 `part 1 of a notice'. 3 4 Section 8(1)(a), `the notice'-- 4 omit, insert-- 5 `part 1 of the notice'. 6

 


 

63 Civil Liability Bill 2003 SCHEDULE 2 1 DICTIONARY 2 section 8 3 "a professional", for chapter 2, part 1, division 5, see section 20. 4 "average weekly earnings" means the seasonally adjusted amount of 5 Queensland full-time adult persons ordinary time earnings as declared 6 by the Australian Statistician in the statistician's report on average 7 weekly earnings, averaged over the last 4 quarters for which the 8 statistician's report is available. 9 "claim" means a claim, however described, for damages based on a 10 liability for personal injury, damage to property or economic loss, 11 whether that liability is based on tort or contract or in or on another 12 form of action, including breach of statutory duty and, for a fatal 13 injury, includes a claim for the deceased's dependants or estate. 14 "community organisation", for chapter 2, part 3, division 2, see 15 section 38. 16 "community work", for chapter 2, part 3, division 2, see section 38. 17 "contributory negligence" see the Law Reform Act 1995, section 10. 18 "damages" includes any form of monetary compensation. 19 "dangerous recreational activity", for chapter 2, part 1, division 4, see 20 section 18. 21 "defendant", for chapter 2, part 2, see section 29. 22 "dependency claim" means a claim in relation to a fatal injury brought on 23 behalf of a deceased's dependants or estate. 24 "dust-related condition" means-- 25 (a) any of the following diseases-- 26 aluminosis 27 asbestosis 28 asbestos induced carcinoma 29

 


 

64 Civil Liability Bill 2003 SCHEDULE 2 (continued) asbestos related pleural diseases 1 bagassosis 2 berylliosis 3 byssinosis 4 coal dust pneumoconiosis 5 farmers' lung 6 hard metal pneumoconiosis 7 mesothelioma 8 silicosis 9 silico-tuberculosis 10 talcosis; or 11 (b) any other pathological condition of the lung, pleura or 12 peritoneum that is attributable to dust. 13 "duty" means-- 14 (a) a duty of care in tort; or 15 (b) a duty of care under contract that is concurrent and coextensive 16 with a duty of care in tort; or 17 (c) another duty under statute or otherwise that is concurrent with a 18 duty of care mentioned in paragraph (a) or (b). 19 "duty of care" means a duty to take reasonable care or to exercise 20 reasonable skill (or both duties). 21 "expression of regret" see section 72. 22 "function", for chapter 2, part 3, division 1, see section 34. 23 "future loss" means all or any of the following-- 24 (a) future economic loss; 25 (b) future general expenses; 26 (c) future medical expenses. 27 "general damages", for chapter 3, see section 51. 28 "harm" means harm of any kind, including the following-- 29

 


 

65 Civil Liability Bill 2003 SCHEDULE 2 (continued) (a) personal injury; 1 (b) damage to property; 2 (c) economic loss. 3 "intoxicated", in relation to a person, means that the person is under the 4 influence of alcohol or a drug to the extent that the person's capacity 5 to exercise proper care and skill is impaired. 6 "injury", for chapter 3, see section 51. 7 "liability", for chapter 4, part 1, see section 70. 8 "loss of earnings" means-- 9 (a) past economic loss due to loss of earnings or the deprivation or 10 impairment of earning capacity; and 11 (b) future economic loss due to loss of prospective earnings or the 12 deprivation or impairment of prospective earning capacity. 13 "motor vehicle" means a vehicle for which registration is required under 14 the Transport Operations (Road Use Management--Vehicle 15 Registration) Regulation 1999 and includes a trailer. 16 "obvious risk"-- 17 (a) for chapter 2, part 1, division 3, see section 13; and 18 (b) chapter 2, part 1, division 4, see section 18. 19 "organised", for chapter 2, part 3, division 2, see section 38. 20 "personal injury" includes-- 21 (a) fatal injury; and 22 (b) pre-natal injury; and 23 (c) psychological or psychiatric injury; and 24 (d) disease. 25 "personal injury damages" means damages that relate to the death of or 26 injury to a person. 27 "person in distress", for chapter 2, part 1, division 7, see section 25. 28 "public or other authority", for chapter 2, part 3, division 1, see 29 section 34. 30

 


 

66 Civil Liability Bill 2003 SCHEDULE 2 (continued) "structured settlement", for chapter 3, part 4, see section 64. 1 "volunteer", for chapter 2, part 3, division 2, see section 38. 2 "work", for chapter 2, part 3, division 2, see section 38. 3 4 State of Queensland 2003

 


 

AMENDMENTS TO BILL

1 Civil Liability Bill 2003 CIVIL LIABILITY BILL 2003 AMENDMENTS AGREED TO IN COMMITTEE 1 Clause 2-- At page 8, line 11-- omit, insert-- ` chapter 3, parts 2 and 4 sections 54, 55 and 57 to 61'. 2 Clause 4-- At page 9, after line 4-- insert-- `(2) The following provisions apply only in relation to a breach of duty happening on or after 2 December 2002-- chapter 2, part 1, divisions 1 to 6 chapter 2, part 3, division 1 section 56. `(3) The following provisions apply in relation to a breach of duty happening on or after the day this Act receives assent-- chapter 2, part 4 sections 53, 55, 57, 58, 59, 60, 61, 73 `(4) Sections 65, 66, 67, 68 and 74 apply in relation to personal injuries damages regardless of when the injury happened.'. 3 After clause 8-- At page 11, lines 1 to 3-- omit, insert--

 


 

2 Civil Liability Bill 2003 `CHAPTER 2--CIVIL LIABILITY FOR HARM'. 4 Clause 10-- At page 11, line 22, after `duty'-- insert-- `happening on or after 2 December 2002'. 5 Clause 15-- At page 14, after line 25-- insert-- `(4) In this section-- "a professional" has the same meaning as it has in division 5.'. 6 Clause 21-- At page 16, lines 18 and 19-- omit. 7 Clause 21-- At page 16, line 21, `asking for or giving'-- omit, insert-- `giving or being given'. 8 Clause 22-- At page 17, line 11, `information'-- omit, insert-- `information,'. 9 Clause 22-- At page 17, line 12, `person'--

 


 

3 Civil Liability Bill 2003 omit, insert-- `person, that is'. 10 Clause 26-- At page 18, line 11, `Liability at law'-- omit, insert-- `Civil liability'. 11 Clause 26-- At page 18, line 12, `on or after 18 June 2002'-- omit. 12 Clause 27-- At page 18, line 26, `Liability at law'-- omit, insert-- `Civil liability'. 13 Clause 31-- At page 20, lines 34 and 35, from `misrepresentation' to `loss.'-- omit, insert-- `misrepresentation and confirmed the income of the business as claimed by R. P, relying on D's professional advice, purchased the business and suffered loss.'. 14 Clause 37-- At page 23, lines 22 to 26 and line 32-- omit. 15 Clause 38-- At page 24, lines 4 and 5-- omit, insert--

 


 

4 Civil Liability Bill 2003 ` "community organisation" means any of the following that organises the doing of community work by volunteers-- (a) a corporation; (b) a trustee acting in the capacity of trustee; (c) a church or other religious group; (d) a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth); (e) a public or other authority as defined under section 34.'. 16 Clause 38-- At page 24, line 7, after `sporting,'-- insert-- `recreational, political,'. 17 Clause 46-- At page 27, lines 12 and 13-- omit. 18 Clause 52-- At page 30, lines 15 to 26 and page 31, lines 1 to 8-- omit. 19 Clause 54-- At page 32, line 10, after `section'-- insert-- `or a written notice given under the Personal Injuries Proceedings Act 2002, section 26'. 20 Clause 54-- At page 32, after line 19--

 


 

5 Civil Liability Bill 2003 insert-- `(4A) Subsection (4) does not apply in assessing damages for personal injury if leave to start the proceeding was given under the Personal Injuries Proceedings Act 2002, section 43(1) and was not stayed under section 43(3) of that Act because section 43(4) of that Act applied.'. 21 Clause 60-- At page 34, lines 10 to 31 and page 35, lines 1 and 2-- omit, insert-- `60 Damages for gratuitous services `(1) Damages for gratuitous services are not to be awarded unless-- (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and (c) the services are provided, or are to be provided-- (i) for at least 6 hours per week; and (ii) for at least 6 months. `(2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. `(3) Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person's household. `(4) In assessing damages for gratuitous services, a court must take into account-- (a) any offsetting benefit the service provider obtains through providing the services; and (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.'.

 


 

6 Civil Liability Bill 2003 22 Clause 62-- At page 35, line 27, after `a court'-- insert-- `in relation to an injury arising after 1 December 2002'. 23 Clause 62-- At page 36, line 3, `deciding'-- omit, insert-- `assessing'. 24 Clause 62-- At page 36, after line 7-- insert-- `(2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.'. 25 Clause 64-- At page 38, line 5, after `award of'-- insert-- `personal injury'. 26 Clause 65-- At page 38, lines 13 and 14-- omit. 27 Clause 73-- At page 40, line 8, `on or after 18 June 2002'--

 


 

7 Civil Liability Bill 2003 omit. 28 Clause 81-- At page 42, lines 20 to 22 and page 43, line 1-- omit, insert-- `(b) injury as defined under the WorkCover Queensland Act 1996, but only to the extent that an entitlement to seek damages, as defined under that Act, for the injury is regulated by chapter 5 of that Act. Example for paragraph (b)-- W, a worker, sustains an injury in the course of employment. The injury is caused by a design fault in a machine. As a result of sustaining the injury, W seeks damages against both E, W's employer, and X Company, the designer of the machine. Before starting a proceeding in a court for damages against E, W must comply with the pre-court procedures under the WorkCover Queensland Act 1996. Similarly, before starting a proceeding in a court for damages against X Company, W must comply with the pre-court procedures under this Act.'. 29 Clause 82-- At page 43, after line 14-- insert-- `(2) Section 7-- insert-- `(2) Despite subsection (1), notice of a claim is to be given in the form approved for a notice of a claim when the notice is given. `(3) Also, subsection (2) has effect for notice of a claim given before the commencement of this subsection.'.'. 30 Clause 83-- At page 44, line 14, after `(3)'-- insert-- `or section 9A(9)(b)'.

 


 

8 Civil Liability Bill 2003 31 Clause 83-- At page 44, after line 20-- insert-- `(6A) Section 9(6), after `subsection (3)'-- insert-- `or section 9A(9)(b)'.'. 32 Clause 83-- At page 45, line 5, after `first person'-- insert-- `in writing'. 33 Clause 83-- At page 45, after line 21-- insert-- `(13) Section 9-- insert-- `(9A) For subsection (3)(b), consultation by a claimant with a community legal service as defined under section 67A(2), whether before or after the commencement of this subsection, is to be disregarded. `(9B) This section is subject to section 9A.'.'. 34 After clause 83-- At page 45, after line 21-- insert-- `83A Insertion of new s 9A `After section 9-- insert--

 


 

9 Civil Liability Bill 2003 `9A Particular provision for notice of a claim procedure for medical negligence cases `(1) This section applies to a claim based on a medical incident happening on or after the commencement of this section that is alleged to have given rise to personal injury. `(2) Before giving part 1 of a notice of a claim under section 9, the claimant must give written notice ("initial notice") of the claim to the person against whom a proceeding based on the claim is proposed to be started. `(3) The initial notice must state it is given under this section and contain the following information-- (a) the claimant's full name and address; (b) any other name by which the claimant is known or has been known; (c) if the initial notice is given by the claimant's parent or legal guardian, the parent's or guardian's name; (d) the claimant's date of birth; (e) a description of the medical services alleged to have given rise to the personal injury; (f) if known, the name of the doctor who provided the medical services; (g) the date or dates when the medical services were provided; (h) the place or places at which the medical services were provided; and (i) a description of the personal injury alleged to have been suffered. `(4) The initial notice must be given within the period ending on the earlier of the following days-- (a) the day 9 months after the day the medical incident happened or, if symptoms of the personal injury arising out of the incident were not immediately apparent, the first appearance of symptoms of the injury; (b) the day 1 month after the day the claimant first consults a lawyer about the possibility of seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.

 


 

10 Civil Liability Bill 2003 `(5) If the claimant is a child, the child's parent or legal guardian may give the initial notice for the child. `(6) If the initial notice is not given within the period prescribed under subsection (4), the obligation to give the initial notice continues and a reasonable excuse for the delay must be given in the initial notice to the person against whom the proceeding is proposed to be started. `(7) If the person against whom the proceeding is proposed to be started is the State or an entity with the privileges and immunities of the State, the giving of the initial notice is effective for subsection (2) only if it is given to-- (a) if the place at which the medical incident happened is a place under the control of a district manager--the district manager for the place; or (b) if paragraph (a) does not apply--the chief executive officer of the department or entity having control of the place at which the medical incident happened. `(8) A person to whom an initial notice is given must, within 1 month after receiving the initial notice, give the claimant-- (a) a written response advising whether any documents are held in relation to the medical services mentioned in the notice; and (b) copies of all documents held by the person about the medical services. `(9) The claimant-- (a) may give part 1 of the notice of the claim only after giving the initial notice; and (b) must give part 1 of the notice within 12 months after the respondent complies with subsection (8); and (c) is not required to comply with section 9(3); and (d) must, as part of giving a complying part 1 notice of claim, give a written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury, stating, in the medical specialist's opinion-- (i) that there was a failure to meet an appropriate standard of care in providing medical services; and (ii) the reasons justifying the opinion; and

 


 

11 Civil Liability Bill 2003 (iii) that as a result of the failure, the claimant suffered personal injury; and (e) must give the report mentioned in paragraph (d) when giving part 1 of the notice of claim. `(10) If the claim is based on, or includes, an allegation of a failure to warn of a risk in relation to the provision of medical services, it is not necessary for subsection (9) for the report to comment on, or address, the alleged failure. `(11)To remove any doubt, it is declared that subsection (4)(a), to the extent that it provides that a notice may be given after the first appearance of symptoms of the personal injury, does not determine or affect when a cause of action in relation to the injury arose for the purposes of the Limitation of Actions Act 1974. `(12) No obligation exists on a person to whom an initial notice is given to investigate, assess or respond to the initial notice other than as required by subsection (8). `(13) For subsection (4)(b), consultation by a claimant with a community legal service as defined under section 67A(2) is to be disregarded. `(14) In this section-- "district manager", for a place, means the manager appointed under the Health Services Act 1991, section 22, for the district in which the place is located. "medical incident" means an accident, or other act, omission or circumstance involving a doctor happening during the provision of medical services. "medical specialist" means a person registered or eligible for registration as a specialist registrant under the Medical Practitioners Registration Act 2001.'.'. 35 Clause 85-- At page 46, after line 12-- insert-- `(4) Subsection (2) or (3) has effect whether the notice under the subsection was given before or after the commencement of the subsection.'.'.

 


 

12 Civil Liability Bill 2003 36 Clause 87-- At page 47, line 10, from `12' to `that'-- omit, insert-- `10 or 121 within the prescribed period under the'. 37 Clause 92-- At page 49, after line 11-- insert-- `(2) This division applies regardless of when the personal injury to which the claim relates arose.'. 38 Clause 92-- At page 49, line 19, `1 year'-- omit, insert-- `18 months'. 39 Clause 92-- At page 49, after line 28-- insert-- `(4) For subsection (1)(b), consultation by a claimant with a community legal service as defined under section 67A(2), whether before or after the commencement of this subsection, is to be disregarded.'. 40 Clause 95-- At page 52, line 27, after `despite section'-- insert-- `9A(9),'. 1 Section 10 (Person to whom notice of a claim is given must give preliminary response to claimant) or 12 (Respondent's response to part 1 of a notice of a claim)

 


 

13 Civil Liability Bill 2003 41 Clause 105-- At page 56, lines 10 to 12-- omit, insert-- `"community legal service" means an entity, prescribed under a regulation, that provides free legal services to the community or a section of the community.'. 42 After clause 105-- At page 56, after line 15-- insert-- `105A Omission of ch 3, pt 2 `Chapter 3, part 2-- omit.'.'. 43 After clause 106-- At page 57, after line 4-- insert-- `106A Amendment of s 77D (Alteration of limitation period for personal injury arising out of an incident happening before 18 June 2002) Section 77D(2)(a), after `2003'-- insert-- `--before or on 18 June 2003'.'. 44 Clause 107-- At page 58, line 11, after `be'-- insert-- `the day 18 months after'.

 


 

14 Civil Liability Bill 2003 45 Clause 107-- At page 58, after line 11-- insert-- `81 Particular provisions having continuing effect The following provisions as in force immediately before the commencement of this section continue to have effect in relation to personal injury arising out of an incident happening before the day the Civil Liability Act 2003 received assent as if that Act had not been enacted-- chapter 2 (Claims), part 2 (Expressions of regret) section 51 (Damages for loss of earnings or earning capacity) section 52 (Discount rate to be applied in calculating the present value of future loss or gratuitous services) section 53 (Damages for loss of consortium or loss of servitium) section 54 (Damages for gratuitous services) section 55 (Interest) chapter 3 (Other matters), part 2 (Protection of persons performing duties to enhance public safety).'.'. 46 Clause 108-- At page 58, line 19, `given under section 9 or 14'-- omit, insert-- `complying with section 9 and, if a respondent is added under section 14, section 14'. 47 Schedule 2-- At page 63, line 12, `on tort'-- omit, insert-- `in tort'.

 


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