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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Civil Liability Amendment Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Standard of care for health
professionals
4. Section 5A amended 3
5. Division 7 inserted in Part 1A 4
Part 3 -- Proportionate liability
6. Section 5AI amended 7
7. Section 5AJ amended 7
8. Section 5AJA inserted 8
9. Section 5AKA inserted 9
10. Section 5AL amended 10
275--2B page i
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Civil Liability Amendment Bill 2004
A Bill for
An Act to amend the Civil Liability Act 2002 --
• to make provision in relation to the standard of care applicable
to certain health professionals; and
• to make further provision in relation to proportionate liability.
The Parliament of Western Australia enacts as follows:
page 1
Civil Liability Amendment Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Civil Liability Amendment
Act 2004.
5 2. Commencement
(1) Subject to subsection (2), this Act comes into operation on the
day on which it receives the Royal Assent.
(2) Part 3 comes into operation immediately after the Civil Liability
Amendment Act 2003 section 9 comes into operation.
10 3. The Act amended
The amendments in this Act are to the Civil Liability Act 2002*.
[* Act No. 35 of 2002.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 56.]
page 2
Civil Liability Amendment Bill 2004
Standard of care for health professionals Part 2
s. 4
Part 2 -- Standard of care for health professionals
4. Section 5A amended
(1) Section 5A(3) is repealed and the following subsections are
inserted instead --
5 "
(3) Divisions 2, 3, 4, 5 and 6 do not apply unless the harm
giving rise to the claim for damages arises out of an
incident happening on or after 1 December 2003 (being
the day on which the Civil Liability Amendment
10 Act 2003 section 8, which inserted those Divisions,
came into operation).
(3a) Division 7 does not apply unless the harm giving rise
to the claim for damages arises out of an incident
happening on or after the day on which the Civil
15 Liability Amendment Act 2004 section 5 comes into
operation.
".
(2) Section 5A(5) is repealed and the following subsection is
inserted instead --
20 "
(5) In subsection (4) --
"commencement day" means the day referred to in
subsection (3) or (3a), as is relevant to the case.
".
page 3
Civil Liability Amendment Bill 2004
Part 2 Standard of care for health professionals
s. 5
5. Division 7 inserted in Part 1A
After section 5P the following Division is inserted in Part 1A --
"
Division 7 -- Professional negligence
5 5PA. Interpretation
In this Division --
"health professional" includes any of the following --
(a) a chiropractor as defined in the
Chiropractors Act 1964 section 4;
10 (b) a dentist, dental therapist or dental hygienist,
as those terms are defined in the Dental
Act 1939 section 4;
(c) a dental prosthetist as defined in the Dental
Prosthetists Act 1985 section 3(1);
15 (d) a medical practitioner as defined in the
Medical Act 1894 section 3(1);
(e) a nurse as defined in the Nurses Act 1992
section 4;
(f) an occupational therapist as defined in the
20 Occupational Therapists Registration
Act 1980 section 3;
(g) a registered optometrist as defined in the
Optometrists Act 1940 section 3;
(h) an osteopath as defined in the Osteopaths
25 Act 1997 section 3;
(i) a pharmaceutical chemist as defined in the
Pharmacy Act 1964 section 5(1);
(j) a physiotherapist as defined in the
Physiotherapists Act 1950 section 2;
30 (k) a podiatrist as defined in the Podiatrists
Registration Act 1984 section 3;
page 4
Civil Liability Amendment Bill 2004
Standard of care for health professionals Part 2
s. 5
(l) a registered psychologist as defined in the
Psychologists Registration Act 1976
section 3.
(m) any other discipline or profession practising
5 in the health area which applies a body of
learning.
5PB. Standard of care for health professionals
(1) An act or omission of a health professional is not a
negligent act or omission if it is in accordance with a
10 practice that, at the time of the act or omission, is
widely accepted by the health professional's peers as
competent professional practice.
(2) Subsection (1) does not apply to an act or omission of a
health professional in relation to informing a person of
15 a risk of injury or death associated with --
(a) the treatment proposed for a patient or a foetus
being carried by a pregnant patient; or
(b) a procedure proposed to be conducted for the
purpose of diagnosing a condition of a patient
20 or a foetus being carried by a pregnant patient.
(3) Subsection (1) applies even if another practice that is
widely accepted by the health professional's peers as
competent professional practice differs from or
conflicts with the practice in accordance with which
25 the health professional acted or omitted to do
something.
(4) Nothing in subsection (1) prevents a health
professional from being liable for negligence if the
practice in accordance with which the health
30 professional acted or omitted to do something is, in the
circumstances of the particular case, so unreasonable
that no reasonable health professional in the health
page 5
Civil Liability Amendment Bill 2004
Part 2 Standard of care for health professionals
s. 5
professional's position could have acted or omitted to
do something in accordance with that practice.
(5) A practice does not have to be universally accepted as
competent professional practice to be considered
5 widely accepted as competent professional practice.
(6) In determining liability for damages for harm caused
by the fault of a health professional, the plaintiff
always bears the onus of proving, on the balance of
probabilities, that the applicable standard of care
10 (whether under this section or any other law) was
breached by the defendant.
".
page 6
Civil Liability Amendment Bill 2004
Proportionate liability Part 3
s. 6
Part 3 -- Proportionate liability
6. Section 5AI amended
(1) Section 5AI(1) is amended by deleting the definition of
"apportionable claim" and inserting instead --
5 "
"apportionable claim" means --
(a) a claim for economic loss or damage to
property in an action for damages (whether
in contract, tort or otherwise) arising from a
10 failure to take reasonable care (but not
including any claim arising out of personal
injury); or
(b) a claim for economic loss or damage to
property in an action for damages under the
15 Fair Trading Act 1987 for a contravention of
section 10 of that Act;
".
(2) Section 5AI(1) is amended in the definition of "concurrent
wrongdoer" by deleting "acts or omissions" and inserting
20 instead --
" act or omission ".
7. Section 5AJ amended
After section 5AJ(3) the following subsection is inserted --
"
25 (4) For the purposes of this Part, there is a single
apportionable claim in proceedings in respect of the
same loss or damage even if the claim for the loss or
damage is based on more than one cause of action
(whether or not of the same or a different kind).
30 ".
page 7
Civil Liability Amendment Bill 2004
Part 3 Proportionate liability
s. 8
8. Section 5AJA inserted
After section 5AJ the following section is inserted --
"
5AJA. Certain concurrent wrongdoers not to have benefit
5 of apportionment
(1) Nothing in this Part operates to limit the liability of a
concurrent wrongdoer (an "excluded concurrent
wrongdoer") in proceedings involving an
apportionable claim if --
10 (a) the concurrent wrongdoer intended to cause the
economic loss or damage to property that is the
subject of the claim;
(b) the concurrent wrongdoer fraudulently caused
the economic loss or damage to property that is
15 the subject of the claim; or
(c) the civil liability of the concurrent wrongdoer
was otherwise of a kind excluded from the
operation of this Part by section 3A.
(2) The liability of an excluded concurrent wrongdoer is to
20 be determined in accordance with the legal rules, if
any, that (apart from this Part) are relevant.
(3) The liability of any other concurrent wrongdoer who is
not an excluded concurrent wrongdoer is to be
determined in accordance with the provisions of this
25 Part.
".
page 8
Civil Liability Amendment Bill 2004
Proportionate liability Part 3
s. 9
9. Section 5AKA inserted
After section 5AK the following section is inserted --
"
5AKA. Duty of defendant to inform plaintiff about
5 concurrent wrongdoers
(1) If --
(a) a defendant in proceedings involving an
apportionable claim has reasonable grounds to
believe that a particular person (the "other
10 person") may be a concurrent wrongdoer in
relation to the claim;
(b) the defendant fails to give the plaintiff, as soon
as practicable, written notice of the information
that the defendant has about --
15 (i) the identity of the other person; and
(ii) the circumstances that may make the
other person a concurrent wrongdoer in
relation to the claim;
and
20 (c) the plaintiff unnecessarily incurs costs in the
proceedings because the plaintiff was not aware
that the other person may be a concurrent
wrongdoer in relation to the claim,
the court hearing the proceedings may order that the
25 defendant pay all or any of those costs to the plaintiff.
(2) The court may order that the costs to be paid by the
defendant be assessed on an indemnity basis or
otherwise.
".
page 9
Civil Liability Amendment Bill 2004
Part 3 Proportionate liability
s. 10
10. Section 5AL amended
Section 5AL(1)(a) is amended as follows:
(a) by deleting "recovered)" and inserting instead --
" recovered ";
5 (b) by deleting "defendant;" and inserting instead --
" defendant); ".
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