Civil Liability Amendment Act 2003 (NSW)

An Act to amend the Civil Liability Act 2002 with respect to the civil liability of public authorities and officials and for the birth of a child, the recovery of damages by criminals and mentally ill persons, self-defence and proportionate liability; to amend the Mental Health Act 1990 to exclude civil liability for certain functions exercised under that Act; and for other purposes.

1Name of Act

This Act is the Civil Liability Amendment Act 2003.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Civil Liability Act 2002 No 22

The Civil Liability Act 2002 is amended as set out in Schedules 1–3.

4Amendment of Mental Health Act 1990 No 9

The Mental Health Act 1990 is amended as set out in Schedule 4.

Schedule 1Amendments to Civil Liability Act 2002 concerning public authorities, criminals, mentally ill persons and childbirth

(Section 3)

[1]Section 41 Definitions

Insert after paragraph (e) of the definition of public or other authority:

(e1)

any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions, or

[2]Section 43A

Insert after section 43:

43AProceedings against public or other authorities for the exercise of special statutory powers(1)

This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2)

A special statutory power is a power:

• (a)

  that is conferred by or under a statute, and

• (b)

  that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3)

For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4)

In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

[3]Section 52 No civil liability for acts in self-defence

Omit “, but only if the conduct to which the person was responding was unlawful.” from section 52 (1).

Insert instead:

, but only if the conduct to which the person was responding:

• (a)

  was unlawful, or

• (b)

  would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

[4]Section 54 Criminals not to be awarded damages

Omit section 54 (1) (a) and (b). Insert instead:

(a)

the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b)

that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

[5]Section 54A

Insert after section 54:

54ADamages limitations if loss results from serious offence committed by mentally ill person(1)

This section applies to a liability to which this Part applies in circumstances where:

• (a)

  the liability arises out of the death of, or injury or damage to, a person, and

• (b)

  that death, injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and

• (c)

  that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2)

If a court awards damages in respect of a liability to which this section applies, the following limitations apply to that award:

• (a)

  no damages may be awarded for non-economic loss, and

• (b)

  no damages for economic loss may be awarded for loss of earnings.

(3)

A serious offence is an offence punishable by imprisonment for 6 months or more.

(4)

This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned:

• (a)

  constitutes an offence (whether or not a serious offence), or

• (b)

  would have constituted an offence (whether or not a serious offence) if the defendant had not been suffering from a mental illness at the time of the conduct.

(5)

This section operates whether or not a person whose conduct is in issue was acquitted of an offence concerning that conduct by reason of mental illness or was found by a court not to be fit to be tried for an offence concerning that conduct by reason of such an illness.

[6]Part 11

Insert after Part 10:

Part 11Damages for the birth of a child70Application of Part(1)

This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.

(2)

This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.

(3)

This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).

71Limitation of the award of damages for the birth of a child(1)

In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:

• (a)

  the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or

• (b)

  any loss of earnings by the claimant while the claimant rears or maintains the child.

(2)

Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

Schedule 2Amendments to Civil Liability Act 2002 concerning proportionate liability

(Section 3)

[1]Section 34 Application of Part (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002 No 92)

Omit section 34 (1). Insert instead:

(1)

This Part applies to the following claims (apportionable claims):

• (a)

  a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury,

• (b)

  a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act.

[2]Section 34 (1A)

Insert after section 34 (1) (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002):

(1A)

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).

[3]Section 34 (2) (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002 No 92)

Omit “A”. Insert instead “In this Part, a”.

[4]Section 34 (2) (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002 No 92)

Insert “(or act or omission)” after “acts or omissions”.

[5]Section 34 (5) (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002 No 92)

Omit the subsection.

[6]Section 34A

Insert after section 34 (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002):

34ACertain concurrent wrongdoers not to have benefit 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:

• (a)

  the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim, or

• (b)

  the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is 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 3B.

(2)

The liability of an excluded concurrent wrongdoer is to 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 Part.

[7]Section 35A

Insert after section 35 (as inserted by Schedule 1 [5] to the Civil Liability Amendment (Personal Responsibility) Act 2002):

35ADuty of defendant to inform plaintiff about concurrent wrongdoers(1)

If:

• (a)

  a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer in relation to the claim, and

• (b)

  the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:

  • (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

• (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 defendant pay all or any of those costs of the plaintiff.

(2)

The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.

Schedule 3Other amendments to Civil Liability Act 2002

(Section 3)

[1]Section 3C

Insert after section 3B:

3CAct operates to exclude or limit vicarious liability

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

[2]Sections 42, 44 (1) and 45 (1)

Insert “for civil liability” before “to which this Part applies” wherever occurring.

[3]Section 43 Proceedings against public or other authorities based on breach of statutory duty

Omit “to which this Part applies that are based on an alleged” in section 43 (1).

Insert instead “for civil liability to which this Part applies to the extent that the liability is based on a”.

[4]Section 44 When public or other authority not liable for failure to exercise regulatory functions

Omit “claim” and “claimant” from section 44 (1).

Insert instead “liability” and “plaintiff” respectively.

[5]Schedule 1 Savings and transitional provisions

Insert at the end of clause 1 (1):

•

Civil Liability Amendment Act 2003

[6]Schedule 1, Part 4

Insert after Part 3:

Part 4Provisions consequent on enactment of Civil Liability Amendment Act 200312Definition

In this Part:

amending Act means the Civil Liability Amendment Act 2003.

13Application of amendments concerning proportionate liability

Clause 6 (1) extends to Part 4 (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002 and amended by the amending Act).

14Application of amendments relating to damages for birth of child(1)

Part 11 (as inserted by Schedule 1 [6] to the amending Act) applies in relation to civil liability whether arising before or after 13 November 2003.

(2)

However, Part 11 does not apply to proceedings commenced in a court before 13 November 2003.

15Application of amendments concerning public and other authorities, criminals and mentally ill persons(1)

Parts 5 and 7 (as amended by the amending Act) apply in relation to civil liability whether arising before or after 13 November 2003.

(2)

Parts 5 and 7 (as so amended) also extend to proceedings commenced before 13 November 2003.

(3)

However, subclause (2) does not operate:

• (a)

  to apply Part 5 or 7 (as so amended) in respect of any decision of a court made before the commencement of this clause, or

• (b)

  to apply Part 5 or 7 in relation to any proceedings to which the Part did not apply immediately before the commencement of this clause.

Schedule 4Amendment of Mental Health Act 1990

(Section 4)

Omit the section. Insert instead:

294Liability of police officers and health care professionals exercising functions under this Act(1)

Any police officer or health care professional who, in good faith, exercises a function that is conferred or imposed on that person by or under this Act is not personally liable for any injury or damage caused by the exercise of that function.

(2)

Nothing in this section affects any exclusion from liability provided by another provision of this Act or any other Act.

(3)

In this section, health care professional means a person registered under a health registration Act within the meaning of the Health Care Complaints Act 1993.