Civil Liability Amendment Act 2013 (TAS)

Civil Liability Amendment Act 2013

An Act to amend the Civil Liability Act 2002

[Royal Assent 6 November 2013]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Civil Liability Amendment Act 2013 . 2CommencementThe provisions of this Act commence on a day or days to be proclaimed. 3Principal ActIn this Act, the Civil Liability Act 2002 is referred to as the Principal Act. 4Section 3B amended (Civil liability excluded from Act) Section 3B(2) of the Principal Act is amended by omitting " Parts 2 , 3 and 5 " and substituting " Parts 2 , 3 , 5 and 5A ". 5Section 4 amended (Application of Act) Section 4 of the Principal Act is amended as follows: (a) by inserting the following subsections after subsection (2) : (2A)  Part 5A applies to a cause of action accrued, and an action commenced, whether before or after the commencement of section 7 of the Civil Liability Amendment Act 2013. (2B)  However, Part 5A does not apply to an action commenced before the commencement of section 7 of the Civil Liability Amendment Act 2013 if – (a) the hearing of the action had commenced before that commencement; or (b) damages had been awarded in that action before that commencement; or (c) a settlement had been reached in that action before that commencement, other than a settlement that only relates to damages that, if they had been awarded by a court, would be provisional damages within the meaning of section 8B(1) . (b) by inserting the following subsections after subsection (3A) : (3B)  Section 28BA does not apply to a cause of action accrued before the commencement of section 9 of the Civil Liability Amendment Act 2013. (3C)  The amendment to section 28C effected by section 10 of the Civil Liability Amendment Act 2013 does not apply to a cause of action accrued before the commencement of section 10 of that Act. 6Section 4AA insertedAfter section 4 of the Principal Act , the following section is inserted in Part 1: 4AAAct binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 7Part 5A insertedAfter section 8 of the Principal Act , the following Part is inserted: PART 5AProvisional Damages 8AApplication of Part 5A This Part applies to civil liability of any kind for damages for personal injury or death, except civil liability that is excluded from the operation of this Part by section 3B . 8BProvisional damages for asbestos-related conditions (1)  If it is proved or admitted in an action for damages in respect of a dust-related disease (the first disease) of a person that the person may, at some definite or indefinite time in the future, develop another dust-related disease wholly or partly as a result of the act or omission giving rise to the cause of action, the court may – (a) award, in the first instance, damages (provisional damages) for the first disease, assessed on the assumption that the person will not develop another dust-related disease; and (b) award damages at a future date if the person does develop another dust-related disease. (2)  In this section – dust-related disease means – (a) any of the following diseases: (i) aluminosis; (ii) asbestosis; (iii) asbestos-induced carcinoma; (iv) asbestos-related pleural diseases; (v) bagassosis; (vi) berylliosis; (vii) byssinosis; (viii) coal dust pneumoconiosis; (ix) farmers’ lung; (x) hard metal pneumoconiosis; (xi) mesothelioma; (xii) silicosis; (xiii) silico-tuberculosis; (xiv) talcosis; or (b) any other pathological condition of the lung, pleura or peritoneum that is attributable to dust. 8Section 28 amended (Tariffs for damages for non-economic loss (general damages)) Section 28 of the Principal Act is amended by inserting after subsection (2) the following subsection: (3)  In this section – other courts includes a court of any jurisdiction within Australia, including Tasmania. 9Section 28BA insertedAfter section 28B of the Principal Act , the following section is inserted in Part 7: 28BADamages for loss of capacity to provide gratuitous services to another (1)  A person may recover, in relation to a personal injury, damages for the loss of capacity to provide gratuitous services to another person. (2)  A person (the claimant) may recover under subsection (1) , in relation to a personal injury, damages for the loss of capacity to provide gratuitous services to another person only if – (a) either – (i) the claimant was, before the loss of capacity occurred, providing the services to the other person for more than 6 hours per week and more than 6 consecutive months and it was necessary for the services to be provided to the other person; or (ii) the other person was, before the injury occurred, an unborn child of the person; and (b) the other person – (i) is a person who would have been entitled to recover for loss of the claimant’s services if the claimant had been killed rather than injured; or (ii) would have been, if he or she had been born before the injury occurred, entitled to recover for loss of the claimant’s services if the claimant had been killed rather than injured; and (c) there is a reasonable expectation that, but for the loss of capacity, the claimant would have provided those services to the other person, after the injury, for more than 6 hours per week and more than 6 consecutive months; and  (d) the other person will need the services for more than 6 hours per week and more than 6 consecutive months and the need is reasonable in all the circumstances. (3)  In calculating damages for the loss of capacity to provide gratuitous services – (a) the hourly rate is not to exceed one-fortieth of adult average weekly earnings; and (b) the weekly rate is not to exceed adult average weekly earnings. 10Section 28C amended (Abolition of awards for gratuitous services in respect of claims under Motor Accidents (Liabilities and Compensation) Act 1973" YEAR="1973" VERIFIED="YES" ACTNO="71">Motor Accidents (Liabilities and Compensation) Act 1973) Section 28C of the Principal Act is amended by inserting "or damages for the loss by the injured person of the capacity to provide gratuitous services to another person" after "another person". 11Repeal of ActThis Act is repealed on the three hundred and sixty fifth day from the day on which all of the provisions of this Act commence.

[Second reading presentation speech made in:

House of Assembly on 17 SEPTEMBER 2013

Legislative Council on 17 OCTOBER 2013]