Civil Liability Legislation Amendment Act 2008 (NSW)

An Act to amend the Civil Liability Act 2002 and other Acts to make further provision in respect of offender damages, victim claims, indexation of damages, and damages for gratuitous attendant care services.

1Name of Act

This Act is the Civil Liability Legislation Amendment Act 2008.

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 Schedule 1.

4Amendment of other Acts

The Acts specified in Schedule 2 are amended as set out in that Schedule.

5Repeal of Act(1)

This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.

(2)

The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.

Schedule 1Amendment of Civil Liability Act 2002

(Section 3)

[1]Section 3B Civil liability excluded from Act

Insert at the end of section 3B (1) (a) (ii):

• •

  and

• (iii)

  Part 2A (Special provisions for offenders in custody),

[2]Section 15 Damages for gratuitous attendant care services: general

Omit section 15 (3). Insert instead:

(3)

Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

• (a)

  for at least 6 hours per week, and

• (b)

  for a period of at least 6 consecutive months.

[3]Section 16 Determination of damages for non-economic loss

Omit “rounded to the nearest $500” from section 16 (4).

Insert instead “rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up)”.

[4]Section 17 Indexation of maximum amount relating to non-economic loss

Omit “rounded to the nearest $500” from section 17 (5).

Insert instead “rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up)”.

[5]Section 26B Application of Part

Omit “being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of a protected defendant” from section 26B (1).

Insert instead “being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable”.

[6]Part 2A, Division 1A

Insert after Division 1 of Part 2A:

Division 1ADuties of claimant for offender damages26BAProtected defendant must be given notice of incident giving rise to claim(1)

A person (referred to in this Division as a claimant) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this Part applies must give the protected defendant notice of the incident that gives rise to the claim within 6 months after the relevant date for the claim.

(2)

The relevant date for the claim is the date of the incident that gives rise to the claim unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.

(3)

Notice of an incident must be in writing and must:

• (a)

  specify the date of the incident, and

• (b)

  describe the incident (in ordinary language), and

• (c)

  state that the incident may give rise to a claim against the protected defendant.

(4)

Notice given to an officer or employee of a protected defendant is taken to have been given to the protected defendant.

(5)

Time does not run for the purposes of this section while the claimant is a vulnerable offender under section 26BC.

26BBClaimant must comply with requests for information(1)

A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information:

• (a)

  to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and

• (b)

  to be able to make an early assessment of liability, and

• (c)

  to be able to make an informed offer of settlement.

(2)

The reasonableness of a request under this section may be assessed having regard to criteria including the following:

• (a)

  the amount of time the claimant needs to comply with the request,

• (b)

  whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,

• (c)

  the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made,

• (d)

  how onerous it will be for the claimant to comply with the request,

• (e)

  whether the information is privileged,

• (f)

  whether the information sought is sufficiently specified,

• (g)

  the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

(3)

A claimant is not required to comply with a requirement under this section while the claimant is a vulnerable offender under section 26BC.

(4)

The duty under this section applies only until court proceedings are commenced.

26BCVulnerable offenders(1)

An offender in custody is considered to be a vulnerable offender for the purposes of this Division if:

• (a)

  the offender has a reasonable apprehension that the offender’s safety will be put at risk if the offender gives notice as required by section 26BA or complies with a request of the protected defendant under section 26BB, and

• (b)

  the offender has (as a result of that reasonable apprehension) applied to be placed in protective custody or transferred to another correctional facility.

(2)

The offender ceases to be a vulnerable offender when any of the following happens:

• (a)

  the offender is transferred to another correctional facility or placed in protective custody in response to the offender’s application,

• (b)

  the offender declines an offer to be transferred to another correctional facility or be placed in protective custody in response to the offender’s application,

• (c)

  the offender’s application is rejected on the ground that the offender has failed to establish that the application is made on reasonable grounds.

26BDDismissal of court proceedings for failure to give notice or co-operate on claim(1)

A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with section 26BA or 26BB in connection with the claim concerned.

(2)

An application under this section cannot be made more than 2 months after the statement of claim is served on the protected defendant.

(3)

On an application under this section, the court must dismiss the proceedings unless the court is satisfied that:

• (a)

  section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and

• (b)

  the claimant has complied with section 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section.

[7]Section 26L Offender damages to be held in trust as victim trust fund

Omit section 26L (1) and (2). Insert instead:

(1)

The protected defendant liable to pay offender damages awarded to an offender is to pay those damages to the Public Trustee to be held in trust for the offender and paid out only as authorised by this Division.

(2)

Offender damages held in trust for an offender under this Division comprise a victim trust fund for victims of the offender. The protected defendant liable to pay those damages is responsible for the fund.

[8]Section 26L (6)

Insert after section 26L (5):

(6)

While offender damages are held in a victim trust fund, the liability of a protected defendant to pay those damages is suspended.

[9]Section 26M Victim trust fund available to satisfy eligible victim claims

Omit “6 months” from section 26M (3). Insert instead “12 months”.

[10]Section 26N Notice to persons entitled to make victim claim

Omit “, within 28 days after the award date for the damages concerned,” from section 26N (1).

[11]Section 26N (1)

Omit “official records”. Insert instead “information”.

[12]Section 26N (1A)

Insert after section 26N (1):

(1A)

The notice must be sent as far as practicable within 28 days after the award date for the damages concerned (but this subsection does not prevent the notice from being sent more than 28 days after the award).

[13]Section 26N (2)

Omit “shown in official records”.

Insert instead “disclosed by any information”.

[14]Section 26N (5)

Insert after section 26N (4):

(5)

The Commissioner of Police is authorised to provide a protected defendant with any information in the Commissioner’s possession that the protected defendant may reasonably require for:

• (a)

  identifying and contacting persons who may have a victim claim against the offender, or

• (b)

  determining whether a person appears to have a victim claim against the offender.

[15]Section 26Q Orders for payment of damages out of money held in trust for victims of offender

Omit section 26Q (5). Insert instead:

(5)

The payment of an amount out of a victim trust fund in accordance with an order of a court under this section is taken to be a payment made at the direction of the offender and operates as a discharge, to the extent of the payment, of:

• (a)

  the liability of the protected defendant to pay the amount to the offender concerned as offender damages, and

• (b)

  the obligation of the Public Trustee to hold the amount in trust for the offender concerned.

[16]Section 26R Payment to offender of trust fund surplus

Omit section 26R (3). Insert instead:

(3)

If a protected defendant responsible for a victim trust fund determines and certifies to the Public Trustee that there is a surplus in the fund, the Public Trustee must pay the certified surplus to or at the direction of the offender concerned.

[17]Section 26S Functions of the Public Trustee

Omit section 26S (1).

[18]Section 26S (2)

Omit “this section”. Insert instead “this Division”.

[19]Section 26S (3) and (4)

Omit the subsections.

[20]Section 26S (5) and (6)

Omit the subsections. Insert instead:

(5)

The fees and expenses payable to the Public Trustee in connection with the exercise of functions by the Public Trustee under this Division are payable out of the victim trust fund in connection with which those functions are exercised.

(6)

The certificate of the Public Trustee as to the fees and expenses payable to the Public Trustee in connection with the exercise of functions by the Public Trustee under this Division is sufficient authority for the payment of the relevant amounts out of the victim trust fund concerned.

[21]Section 26V Protection from liability

Omit “on behalf of a protected defendant” from section 26V (2).

[22]Schedule 1 Savings and transitional provisions

Insert at the end of clause 1 (1):

Civil Liability Legislation Amendment Act 2008

[23]Schedule 1, Part 11

Insert after Part 10 of Schedule 1:

Part 11Provisions consequent on enactment of Civil Liability Legislation Amendment Act 200831Definition

In this Part:

2008 amending Act means the Civil Liability Legislation Amendment Act 2008.

32Restrictions on damages for gratuitous attendant care services

An amendment made to section 15 by the 2008 amending Act extends to civil liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement.

33Indexation of non-economic loss damages

The amendments made by the 2008 amending Act to sections 16 and 17 are taken to have had effect on and from the commencement of those sections.

34Vicarious liability of protected defendant

The amendment made by the 2008 amending Act to section 26B extends to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of the amendment, but not so as to affect any final determination of legal proceedings made by a court or tribunal before the commencement of the amendment.

35Duties of claimant for offender damages

Division 1A of Part 2A does not apply in relation to an award of damages if the incident giving rise to the claim occurred before the commencement of that Division.

36Operation of Part 2A in respect of intentional torts

The amendment made by the 2008 amending Act to section 3B extends to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of the amendment, but not so as to affect any final determination of legal proceedings made by a court or tribunal before the commencement of the amendment.

37Eligibility period for victim claims

The amendment made by the 2008 amending Act to section 26M extends to an eligibility period under that section that had commenced to run, but that had not expired, before the commencement of the amendment.

38Notification of persons entitled to make victim claim

An amendment made by the 2008 amending Act to section 26N extends to a victim claim that arose before the commencement of the amendment.

39Offender damages held on trust by Public Trustee(1)

An amendment made by the 2008 amending Act to section 26L, 26Q, 26R or 26S extends to a victim claim that arose before the commencement of the amendment.

(2)

Offender damages held on trust by a protected defendant under section 26L immediately before the commencement of the amendments to that section by the 2008 amending Act are, on and from that commencement, taken to be held on trust under that section by the Public Trustee.

Schedule 2Amendment of other Acts

(Section 4)

Motor Accidents Act 1988 No 102[1]Section 72 Maximum amount of damages for provision of certain home care services

Omit section 72 (2). Insert instead:

(2)

Further, no compensation is to be awarded unless the services are provided (or to be provided):

• (a)

  for at least 6 hours per week, and

• (b)

  for a period of at least 6 consecutive months.

[2]Schedule 4 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Civil Liability Legislation Amendment Act 2008

[3]Schedule 4, Part 13

Insert after Part 12 of Schedule 4:

Part 13Provision arising from the enactment of the Civil Liability Legislation Amendment Act 200836Restrictions on compensation for home care services

An amendment made to this Act by the Civil Liability Legislation Amendment Act 2008 extends to liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement.

Motor Accidents Compensation Act 1999 No 41[1]Section 128 Damages for economic loss—maximum amount for provision of certain attendant care services

Omit section 128 (3). Insert instead:

(3)

Further, no compensation is to be awarded unless the services are provided (or to be provided):

• (a)

  for at least 6 hours per week, and

• (b)

  for a period of at least 6 consecutive months.

[2]Schedule 5 Savings, transitional and other provisions

Insert at the end of clause 2 (1):

Civil Liability Legislation Amendment Act 2008

[3]Schedule 5

Insert at the end of the Schedule with appropriate Part and clause numbering:

PartProvision arising from the Civil Liability Legislation Amendment Act 2008

An amendment made to this Act by the Civil Liability Legislation Amendment Act 2008 extends to liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement.