Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW)

An Act to amend the Law Reform (Miscellaneous Provisions) Act 1965 to make provision for the application of the common law doctrine of contributory negligence to contractual liability in certain circumstances; and for other purposes.

1Name of Act

This Act is the Law Reform (Miscellaneous Provisions) Amendment Act 2000.

2Commencement

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

3Amendment of Law Reform (Miscellaneous Provisions) Act 1965 No 32

The Law Reform (Miscellaneous Provisions) Act 1965 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.

Schedule 1Amendment of Law Reform (Miscellaneous Provisions) Act 1965

(Section 3)

[1]Section 1 Name of Act

Omit section 1 (2).

[2]Section 2A

Insert after section 2:

2ANotes

Notes included in this Act are explanatory notes and do not form part of this Act.

[3]Part 3

Omit the Part. Insert instead:

Part 3Amendment of doctrine of contributory negligence7Application of Part to breach of statutory duty(1)

This Part does not apply to any action for damages founded on a breach of statutory duty imposed on a defendant.

(2)

This Part does not affect the provisions and operation of the Statutory Duties (Contributory Negligence) Act 1945.

8Definitions

In this Part:

claimant—see section 9 (1).

contributory negligence—see section 9 (1).

court, in relation to any claim, means the court by or before which the claim falls to be determined.

damage includes loss of life and personal injury.

wrong means an act or omission that:

• (a)

  gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or

• (b)

  amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.

9Apportionment of liability in cases of contributory negligence(1)

If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:

• (a)

  a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

• (b)

  the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

(2)

Subsection (1) does not operate to defeat any defence arising under a contract.

(3)

If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.

10Workers compensation and contributory negligence(1)

If any payments made to the claimant by way of compensation take effect under section 63 (5) of the Workers’ Compensation Act 1926 to any extent as a defence to the proceedings by the claimant against his or her employer, those payments are to be reduced to the same extent as the damages recoverable by the claimant are reduced under section 9, and are a defence to the reduced extent only.

(2)

If the claimant is liable to repay compensation to his or her employer under section 64 (1) (a) of the Workers’ Compensation Act 1926 or under section 151Z of the Workers Compensation Act 1987, the amount of compensation so repayable is to be reduced to the same extent as the damages recoverable by the claimant are reduced under section 9.

(3)

If the cost of any medical or hospital treatment or ambulance service for which the claimant’s employer incurs liability under section 10 of the Workers’ Compensation Act 1926 or under Division 3 of Part 3 of the Workers Compensation Act 1987 remains unpaid at the time the claimant recovers damages:

• (a)

  the claimant’s liability in respect of that cost is, as between the claimant and the claimant’s employer, to be reduced to the same extent as the claimant’s damages are reduced under section 9, and

• (b)

  the claimant’s employer, despite the recovery of damages and the provisions of section 151Z of the Workers Compensation Act 1987, remains liable to pay to the claimant the balance of that cost under section 10 of the Workers’ Compensation Act 1926 or under Division 3 of Part 3 of the Workers Compensation Act 1987 (whichever is applicable).

Note—

The Workers’ Compensation Act 1926 has been repealed, but the Act is given ongoing effect by the transitional provisions contained in the Workers Compensation Act 1987.

11Total damages to be recorded

If the damages recoverable by a claimant are subject to any reduction under this Part, the court is to find and record the total damages that would have been recoverable had there been no contributory negligence by the claimant.

12Contribution between joint tortfeasors

Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 applies in any proceedings where two or more persons are liable for damages in tort or would, if they had all been sued, be so liable by virtue of this Part in respect of the damage suffered by any person.

13Compensation to relatives(1)

No action for damages for the benefit of dependants of a deceased person under the Compensation to Relatives Act 1897 is defeated by the contributory negligence or breach of statutory duty of the deceased person.

(2)

The damages recoverable in such an action are not reduced by reason of the contributory negligence or of the breach of statutory duty of the deceased person.

14Application of limitations periods(1)

This section applies to proceedings to which section 9 applies if:

• (a)

  the claimant suffered damage as the result partly of the wrong of two or more persons, and

• (b)

  one of those persons avoids liability to another of those persons (or his or her personal representative) by pleading the Limitation Act 1969 or any other enactment limiting the time within which proceedings may be taken.

(2)

The person who avoids liability is not entitled to recover damages or contribution from the other person or his or her personal representative by virtue of section 9.

15Apportionment by judge or jury(1)

If proceedings to which section 9 applies are tried by a judge sitting without a jury, the judge is to make the apportionment under section 9.

(2)

If proceedings to which section 9 applies are tried by a judge sitting with a jury, the jury is to determine the total damages that would have been recoverable had there been no contributory negligence by the claimant, and the extent to which those damages are to be reduced.

16Savings and transitional provisions

Schedule 1 has effect.

[4]Schedule

Omit the Schedule. Insert instead:

Schedule 1Savings and transitional provisions

(Section 16)

Part 1Preliminary1Regulations(1)

The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

• •

  Law Reform (Miscellaneous Provisions) Amendment Act 2000

(2)

Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)

To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

• (a)

  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

• (b)

  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2Provisions consequent on the Law Reform (Miscellaneous Provisions) Amendment Act 20002Definitions

In this Part:

the amending Act means the Law Reform (Miscellaneous Provisions) Amendment Act 2000.

3Amendments concerning contributory negligence to have retrospective application(1)

Subject to subclause (2) and clause 4, the amendments to this Act made by the amending Act are taken to apply to wrongs that occurred before the commencement of those amendments as if those amendments had been in force when the wrong occurred.

(2)

This Act, as in force immediately before the commencement of the amendments made by the amending Act, continues to apply to a wrong about which:

• (a)

  a court has, before that commencement, given judgment or made a decision (including a judgment or decision about liability only), whether or not an appeal has been made against that judgment or decision, or

• (b)

  the persons responsible for the damage have, before that commencement, entered into an agreement to settle claims arising from the wrong (including an agreement about liability only).

4Pending court proceedings(1)

This clause applies to proceedings before a court concerning a wrong that:

• (a)

  were instituted before the commencement of the amending Act, and

• (b)

  have not been finally determined by the court before that commencement.

(2)

Proceedings to which this clause applies are to be determined as if the amending Act had not been enacted.

(3)

Accordingly, any rules, regulations or other law that would have been applicable to the proceedings had the amending Act not been enacted continue to apply to the proceedings as if that Act had not been enacted.

Schedule 2Amendment of other Acts

(Section 4)

Companion Animals Act 1998 No 87

Omit “taken to have been suffered as the result partly of the fault of the owner of the dog and partly of the fault of the person suffering the damage” from section 28 (1).

Insert instead “taken to have been suffered as the result partly of a wrong by the owner of the dog and partly of the contributory negligence of the person who suffered the damage”.

District Court Act 1973 No 9[1]Section 76 Amount recoverable

Omit “section 10” wherever occurring. Insert instead “Part 3”.

[2]Section 76

Omit “if the successful party had not been at fault” wherever occurring.

Insert instead “if there had been no contributory negligence by the successful party”.

Motor Accidents Act 1988 No 102Relatives Act 1897

Omit “Section 10 (4)”. Insert instead “Section 13”.

Motor Accidents Compensation Act 1999 No 41Compensation to Relatives Act 1897

Omit “Section 10 (4)”. Insert instead “Section 13”.

Workers Compensation Act 1987 No 70

Omit “section 10 (4)” from section 151N (5). Insert instead “section 13”.