Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic)
Wrongs and Other Acts (Public Liability Insurance
Reform) Act 2002
Act No. 49/2002
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purposes 1 2. Commencement 3
PART 2—WRONGS ACT 1958 5
3. Occupiers' liability 5 4. New section 14E inserted 5
14E. Transitional 5
5. Insertion of Part IIB 5 PART IIB—NEGLIGENCE—INTOXICATION AND ILLEGAL ACTIVITY 5
14F. Common law 5 14G. Consideration of intoxication and illegal activity 6 14H. Application 6
6. Insertion of Part IIC 6 PART IIC—APOLOGIES 6
14I. Definitions 6 14J. Apology not admission of liability 7 14K. Reduction or waiver of fees 8 14L. Application 9
7. Insertion of Part VB 9 PART VB—PERSONAL INJURY DAMAGES 9
28B. Definitions 9 28C. Application of Part 10 28D. General regulation of court awards 11 28E. Part does not give rise to any cause of action 12 28F. Damages for past or future economic loss—maximum for loss of earnings etc. 12 28G. Fixing damages for non-economic loss 13 28H. Indexation of maximum amount for non-economic loss 13
i
Section Page
28I. Damages for future economic loss—discount rate 15 28J. Supreme Court—limitation of jurisdiction 15 28K. Regulations 15 28L. Transitional 16
8. Insertion of Part VC 16 PART VC—STRUCTURED SETTLEMENTS 16
28M. Definitions 16 28N. Court may make order for structured settlement 17
9. Insertion of Part VIA 18 PART VIA—GOOD SAMARITAN PROTECTION 18
31A. Definition 18 31B. Protection of good samaritans 18 31C. Application of section 31B 19 31D. Supreme Court—limitation of jurisdiction 19
10. Insertion of Part VIB 19 PART VIB—FOOD DONOR PROTECTION 19
31E. Interpretation 19 31F. Protection of food donors 20 31G. Application of section 31F 21 31H. Supreme Court—limitation of jurisdiction 21
11. Insertion of Part IX 21 PART IX—VOLUNTEER PROTECTION 21
34. Definitions 21 35. Meaning of "volunteer" 22 36. Meaning of "community work" 24 37. Protection of volunteers from liability 24 38. Exceptions to section 37(1) 25 39. Provisions concerning the liability of community organisations 26 40. Certain indemnities etc. have no effect 26 41. Application of section 37 27 42. Regulations 27
PART 3—CORONERS ACT 1985 28
12. New section 18A inserted 28
18A. Apology or reduction or waiver of fees 28
PART 4—FOOD ACT 1984 29
13. Amendment of Food Act 1984 29
ii
Section Page PART 5—GOODS ACT 1958 30
14. Definitions 30 15. Application of Part 30 16. New section 97A inserted 30
97A. Limitation of liability in relation to sale of recreational
services 30
17. New section 119A inserted 33
119A. Transitional 33
PART 6—ESSENTIAL SERVICES COMMISSION ACT 2001 35
18. Amendment of purpose provision 35 19. Definitions 35 20. New sections 10A and 10B inserted 36
10A. Functions of the Commission in relation to the
insurance industry 36 10B. Functions of the Commission in relation to the
statutory insurers 37
21. Power to obtain information and documents 38
PART 7—COUNTRY FIRE AUTHORITY ACT 1958 39
22. Penalties in relation to returns 39 23. Inspection of documents 39 24. Adjustment of contributions by owners and insurance intermediaries 40 25. New section 81A inserted 41
81A. Disclosure of information by Authority 41
PART 8—METROPOLITAN FIRE BRIGADES ACT 1958 42
26. Penalties in relation to returns 42 27. Inspection of documents 42 28. Adjustment of contributions by owners and brokers 43 29. New section 45A inserted 44
45A. Disclosure of information by Board 44
═══════════════
ENDNOTES 46
iii
Victoria
No. 49 of 2002
Wrongs and Other Acts (Public
Liability Insurance Reform) Act 2002†
[Assented to 22 October 2002]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The purposes of this Act are—
(a) to amend the Wrongs Act 1958—
(i) to provide that issues of intoxication and illegal activity must be taken into consideration in certain claims in respect of death or personal injury; and
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 1 (ii) to provide that an apology does not constitute an admission of liability in civil proceedings where the death or injury of a person is in issue; and
(iii) to limit the amounts that may be recovered as damages for death or personal injury caused by the fault of a person; and
(iv) settlements as an alternative method for
to provide for the use of structured compensation; and
(v) assistance, advice or care at
to protect good samaritans providing liability for their actions; and
(vi) to protect food donors from civil of donated food; and
(vii)
to amend the Coroners Act 1985 to provide that an apology or waiver or reduction of fees does not constitute an admission for the purposes of coronial findings in an investigation of a death; andto protect volunteers providing services civil liability for their actions; and
(b)
(c) to amend the Food Act 1984 in relation to food donors; and (d) to amend the Goods Act 1958 to extend the operation of Part IV of that Act to additional services and to provide for waivers permitting self-assumption of risk by people who choose to participate in inherently risky activities;
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 2 | Act No. 49/2002 |
(e)
to amend the Essential Services Commission Act 2001 to confer functions on the Commission in relation to the insurance industry; and
(f)
to amend the Country Fire Authority Act 1958—
(i) make adjustments in respect of
to allow the Country Fire Authority to of that Act; and
(ii) to enable information about fire obtained from insurers and made available; and
(g)
to amend the Metropolitan Fire Brigades Act 1958—
(i) Emergency Services Board to make
to allow the Metropolitan Fire and made under section 44A of that Act; and
(ii) to enable information about fire obtained from insurers and made available.
2. Commencement
(1) This Act (except sections 8 and 11 and Part 5)
comes into operation on the day after the day on
which it receives the Royal Assent.
(2) Section 8 comes into operation on a day to be
proclaimed.
(3) Part 5 comes into operation on a day to be
proclaimed.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 2 (4) Subject to sub-section (5), section 11 comes into operation on a day to be proclaimed.
(5) If section 11 does not come into operation before
1 July 2003, it comes into operation on that day.
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 3 | Act No. 49/2002 |
PART 2—WRONGS ACT 1958
3. Occupiers' liability
See:
| Act No. | In section 14B(4) of the Wrongs Act 1958, after |
| 6420/1958. | paragraph (f) insert— |
| Reprint No. 7 | |
| as at | "(fa) whether the person entering the premises is |
| 19 November | |
| 1998 and | intoxicated by alcohol or drugs voluntarily |
| amending | consumed and the level of intoxication; |
Act No. 75/2000. LawToday: | (fb) whether the person entering the premises is |
| engaged in an illegal activity;". | |
dpc.vic. gov.au |
4. New section 14E inserted
After section 14D of the Wrongs Act 1958 insert—
"14E. Transitional
The amendment of section 14B by section 3 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 applies to claims brought under this Part in which the statement of claim or complaint is issued on or after the commencement of section 3 of that Act.".
5. Insertion of Part IIB
After Part IIA of the Wrongs Act 1958 insert—
"PART IIB—NEGLIGENCE—INTOXICATION
AND ILLEGAL ACTIVITY
14F. Common law
Except as provided by section 14G, this Part is not intended to affect the rules of common law applicable to negligence.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 6 14G. Consideration of intoxication and illegal
activity
(1) This section applies to a claim for damages
in respect of death or personal injury brought
by a person (the plaintiff) against another
person (the defendant) alleging negligence.
(2) In determining whether the plaintiff has
established a breach of the duty of care owed
by the defendant, the court must consider,
among other things—
(a) whether the plaintiff was intoxicated by and the level of intoxication;
(b)
whether the plaintiff was engaged in an illegal activity.
14H. Application
This Part applies to claims in which the statement of claim or complaint is issued on or after the commencement of section 5 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002.".
6. Insertion of Part IIC
Before Part III of the Wrongs Act 1958 insert—
'PART IIC—APOLOGIES
14I. Definitions
In this Part—
"apology" means an expression of sorrow,
regret or sympathy but does not include
a clear acknowledgment of fault;
"civil proceeding" includes—
(a)
a proceeding before a tribunal; and
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 6 | Act No. 49/2002 |
(b) a proceeding under an Act of a profession or occupation; and
(c) an inquiry by a board appointed or by a commission of inquiry issued under Division 5 of Part I of the Evidence Act 1958;
"injury" means personal or bodily injury
and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and(c) disease; and
(d) aggravation, acceleration or
recurrence of an injury or disease.
14J. Apology not admission of liability
(1) In a civil proceeding where the death or
injury of a person is in issue or is relevant to
an issue of fact or law, an apology does not
constitute—
(a) an admission of liability for the death or injury; or (b) conduct, carelessness, incompetence or
unsatisfactory professionalan admission of unprofessional the purposes of any Act regulating the practice or conduct of a profession or occupation.
(2) Sub-section (1) applies whether the
apology—
(a) is made orally or in writing; or
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 6
(b)
is made before or after the civil proceeding was in contemplation or commenced.
(3) Nothing in this section affects the
admissibility of a statement with respect to a
fact in issue or tending to establish a fact inissue.
14K. Reduction or waiver of fees
(1) In a civil proceeding where the death or
injury of a person is in issue or is relevant to
an issue of fact or law and it is alleged that
the death or injury occurred as a
consequence of the provision of a service, a
reduction or waiver of the fees payable for
the service or a related service does not
constitute—
(a) an admission of liability for the death or injury; or (b) conduct, carelessness, incompetence or
unsatisfactory professionalan admission of unprofessional the purposes of any Act regulating the practice or conduct of a profession or occupation.
(2) Sub-section (1) applies whether the reduction or waiver of fees—
(a) is made orally or in writing; or
(b)
is made before or after the civil proceeding was in contemplation or commenced.
(3) Nothing in this section affects the
admissibility of a statement with respect to a
fact in issue or tending to establish a fact in
issue.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 7 | Act No. 49/2002 |
14L. Application
This Part applies to an apology or reduction or waiver of fees made on or after the commencement of section 6 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002.'.
7. Insertion of Part VB
After Part VA of the Wrongs Act 1958 insert—
'PART VB—PERSONAL INJURY DAMAGES
28B. Definitions
In this Part—
"claimant" means a person who makes or is
entitled to make a claim for personal
injury damages;
"court" includes tribunal, and, in relation to
a claim for damages, means any court
or tribunal by or before which the claim
falls to be determined;
"damages" includes any form of monetary
compensation;
"fault" includes act or omission;
"injury" means personal or bodily injury
and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and(c) disease; and
(d) aggravation, acceleration or
recurrence of an injury or disease;
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 7 "non-economic loss" means any one or more of the following—
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
"personal injury damages" means
damages that relate to the death of or
injury to a person caused by the fault ofanother person.
28C. Application of Part
(1) This Part applies to an award of personal
injury damages, except an award that is
excluded by sub-section (2).
(2) The following awards of damages are
excluded from the operation of this Part—
(a) an award where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct; (b) an award to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies; (c) an award to which Part 4 of the Accident Compensation Act 1985 applies; (d) an award to which the Workers Compensation Act 1958 applies; (e) of the Country Fire Authority Act
1958 or an award of compensation
under a compensation schemean award of compensation under Part V under that Act;
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 7 | Act No. 49/2002 |
(f) an award of compensation under Part 3 of the Victoria State Emergency Service Act 1987; (g) an award of compensation under Part 6 of the Emergency Management Act 1986; (h) an award of compensation under the 1968;
(i) an award of assistance under the 1996;
(j) an award of compensation under the Equal Opportunity Act 1995; (k) an award of compensation under Part 8 of the Juries Act 2000 or Part VII of the Juries Act 1967; (l) an award of compensation under Division 6 of Part II of the Education Act 1958; (m) a sum payable under a superannuation scheme or any life or other insurance policy; (n) an award of damages of a class that is excluded by the regulations from the operation of this Part. (3) This Part extends to an award of personal
injury damages even if the damages are
recovered in an action for breach of contract
or in any other action.
28D. General regulation of court awards
A court cannot award damages to a claimant contrary to this Part.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 7 28E. Part does not give rise to any cause of
action
This Part does not create or confer any cause of civil action for the recovery of damages in respect of a death or injury caused by the
fault of a person.
28F. Damages for past or future economic loss— maximum for loss of earnings etc.
(1) This section applies to an award of
damages—
(a)
for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or
(b)
for future economic loss due to the deprivation or impairment of earning capacity; or
(c)
for the loss of expectation of financial support.
(2) In the case of any award to which this
section applies, the court is to disregard the
amount (if any) by which the claimant's
gross weekly earnings would (but for the
death or injury) have exceeded an amount
that is 3 times the amount of average weekly
earnings at the date of the award.(3) For the purposes of this section, the amount of average weekly earnings at the date of the award is—
(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Victoria for the most recent quarter occurring before the date of the award for which
such an amount has been estimated by
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 7 | Act No. 49/2002 |
| the Australian Statistician and that is, at that date, available to the court making the award; or |
(b)
if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
28G. Fixing damages for non-economic loss
The maximum amount of damages that may be awarded to a claimant for non-economic loss is $371 380.
28H. Indexation of maximum amount for non-
economic loss
(1) The amount that is to apply for the purposes of section 28G is to be varied, in respect of the financial year beginning on 1 July 2003 and each subsequent financial year, in
accordance with the formula—
E
D×
F
where—
D is the amount referred to in
section 28G.
E is the all groups consumer price index
for Melbourne as at 15 June in the
preceding financial year last published
by the Australian Statistician in respect
of the December quarter of that
financial year.
F is the all groups consumer price index
for Melbourne as at 15 June in the year preceding the preceding financial year
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 7 published by the Australian Statistician
in respect of the December quarter
preceding that 15 June.(2) If it is necessary for the purposes of this
section to calculate an amount that consists of or includes a fraction of a whole number, the amount is deemed to have been
calculated in accordance with this section ifthe calculation is made—
(a) if the amount is less than $1000, to the nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. (3) If an amount is varied in accordance with this section, section 28G and this section have effect as if a reference to the amount
were a reference to the amount as so varied.
(4) If the variation of an amount to which this section applies by operation of this section has the effect of reducing the amount—
(a) the variation is deemed not to have taken effect, except for the purposes of the application of this sub-section; and (b) increased by operation of this section in
respect of the next or a subsequent
financial year that variation has effectwhen the amount is varied and to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 7 | Act No. 49/2002 |
28I. Damages for future economic loss—
discount rate
(1) If an award of damages is to include any component, assessed as a lump sum, for economic loss that is referable to the future,
the present value of that future economic loss
is to be determined by adopting theprescribed discount rate.
(2) The prescribed discount rate is—
(a) a discount rate of the percentage prescribed by the regulations; or (b) if no percentage is so prescribed—a discount rate of 5%. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as
damages.
28J. Supreme Court—limitation of jurisdiction It is the intention of section 28D to alter or vary section 85 of the Constitution Act
1975.
28K. Regulations
(1) The Governor in Council may make
regulations generally prescribing any matter or thing required or permitted by this Part to be prescribed, or necessary or convenient to be prescribed to give effect to this Part.
(2) The regulations—
(a) may leave any matter to be determined by the Minister; and (b) may apply, adopt or incorporate, the regulations, any matter contained in any document as existing or in force—
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 8 (i) from time to time; or
(ii) at a particular time.
28L. Transitional
(1) This Part extends to an award of personal
injury damages that relates to an injury received, or to a death resulting from an injury received, whether before, on or after
the commencement day.
(2) Despite sub-section (1)—
(a)
sections 28F, 28G and 28H do not apply to an award of damages in proceedings commenced in a court before the commencement day;
(b)
section 28I does not apply to an award of damages made before the commencement day.
(3) In this section "commencement day"
means the day on which section 7 of the operation.'.
Wrongs and Other Acts (Public Liability
8. Insertion of Part VC
Before Part VI of the Wrongs Act 1958 insert—
'PART VC—STRUCTURED SETTLEMENTS
28M. Definitions
In this Part—
"claim" does not include a claim under the
Accident Compensation Act 1985;
"court", in relation to a claim, means—
(a)
if a proceeding based on the claim has been commenced in the Supreme Court or the County
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 8 | Act No. 49/2002 |
Court—the court hearing the
proceeding; or
(b) claim has been commenced—the
if no proceeding based on the Court;
"damages" includes any form of monetary
compensation;
"fault" includes an act or omission;
"injury" means personal or bodily injury
and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and(c) disease; and
(d) aggravation, acceleration or
recurrence of an injury or disease;"structured settlement" means an agreement that provides for the payment of all or part of an award of
damages in the form of periodic
payments funded by an annuity or otheragreed means.
28N. Court may make order for structured
settlement
(1) If the parties to a claim for damages that relate to injury to a person caused by the fault of another person agree to settle the claim by making a structured settlement, one
or more parties may apply to the court for an
order approving of, or in the terms of, the
structured settlement.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 9 (2) The court may make the order even though
the payment of damages is not in the form of
a lump sum award of damages.'.
9. Insertion of Part VIA
After Part VI of the Wrongs Act 1958 insert—
'PART VIA—GOOD SAMARITAN
PROTECTION
31A. Definition
In this Part, "injury" means personal or bodily injury and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric injury; and
(c) disease; and
(d) aggravation, acceleration or recurrence
of an injury or disease.
31B. Protection of good samaritans
(1) A good samaritan is an individual who
provides assistance, advice or care to another
person in relation to an emergency oraccident in circumstances in which—
(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and (b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured. (2) A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 10 | Act No. 49/2002 |
(a) in providing assistance, advice or care at the scene of the emergency or accident; or (b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.
(3) Sub-section (2) applies even if the
emergency or accident was caused by an act
or omission of the good samaritan.(4) Sub-section (2) does not apply to any act or
omission of a good samaritan that occurs
before the assistance, advice or care is
provided by the good samaritan.
31C. Application of section 31B
Section 31B applies in relation to assistance, advice or care provided on or after the commencement of section 9 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002.
31D. Supreme Court—limitation of jurisdiction It is the intention of section 31B to alter or vary section 85 of the Constitution Act
1975.'.
10. Insertion of Part VIB
Before Part VII of the Wrongs Act 1958 insert—
'PART VIB—FOOD DONOR PROTECTION
31E. Interpretation
(1) In this Part, "injury" means personal or bodily injury and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric injury; and
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 10 (c) disease; and
(d) aggravation, acceleration or recurrence
of an injury or disease.(2) Words and expressions used in this Part have the same meanings as they have in the Food Act 1984.
31F. Protection of food donors
(1) A person who donates food (the food
donor) in the circumstances listed in sub-
section (2) is not liable in any civil
proceeding for any death or injury thatresults from the consumption of the food.
(2) The circumstances are—
(a) that the food donor donated the food—
(i) in good faith for a charitable or benevolent purpose; and
(ii) with the intention that the have to pay for the food; and
(b)
that the food was safe to consume at the time it left the possession or control of the food donor; and
(c)
if the food was of a nature that required it to be handled in a particular way to ensure that it remained safe to consume after it left the possession or control of the food donor, that the food donor informed the person to whom the food donor gave the food of those handling requirements; and
(d)
if the food only remained safe to consume for a particular period of time after it left the possession or control of the food donor, that the food donor
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 11 | Act No. 49/2002 |
| informed the person to whom the food donor gave the food of that time limit. |
(3) For the purposes of this section, food is safe to consume if it is not unsafe food.
31G. Application of section 31F
Section 31F applies in relation to food
donated on or after the commencement of
section 10 of the Wrongs and Other Acts
(Public Liability Insurance Reform)Act 2002.
31H. Supreme Court—limitation of jurisdiction
It is the intention of section 31F to alter or
vary section 85 of the Constitution Act1975.'.
11. Insertion of Part IX
After Part VIII of the Wrongs Act 1958 insert—
'PART IX—VOLUNTEER PROTECTION
34. Definitions
In this Part—
"community organisation" means—
(a) an incorporated association under
the Associations Incorporation
Act 1981;(b) a municipal council or other body;
(c) any other body corporate;
(d) within the meaning of the Public
any public authority or Agency Employment Act 1998 or other
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 11 person or body acting on behalf of
the State—
that organises the doing of community
work by volunteers;
"community work" has the meaning set out
in section 36;
"organise" includes to direct and to
supervise;
"volunteer" has the meaning set out in
section 35.
35. Meaning of "volunteer"
(1) A volunteer is an individual who provides a service in relation to community work on a voluntary basis.
(2) A person is still a volunteer even if, in
providing a service, he or she receives—
(a) remuneration that he or she would receive whether or not he or she provided that service; or (b) out-of-pocket expenses incurred in
relation to providing that service; or(c) remuneration that is not more than the amount (if any) specified in the regulations for the purposes of this section. (3) For the purposes of this Part, the following people are not volunteers—
(a) the meaning of the Country Fire
Authority Act 1958 while exercising
any power conferred, or performing anya volunteer officer or member within under that Act or the Dangerous Goods Act 1985;
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 11 | Act No. 49/2002 |
(b) an officer or member of an industry brigade within the meaning of the Country Fire Authority Act 1958 while exercising any power conferred, or performing any duty imposed, on him or her by or under that Act or the Dangerous Goods Act 1985; (c) meaning of the Country Fire
a volunteer auxiliary worker within the authorized activity under that Act;
(d) a person complying with a direction given to him or her under the Country Fire Authority Act 1958; (e) the meaning of the Emergency
Management Act 1986 engaged in ana volunteer emergency worker within of that Act;
(f) the meaning of the Emergency
Management Act 1986 exercising anya volunteer emergency worker within duty imposed, by or under the Victoria State Emergency Service Act 1987;
(g) volunteer under this Part while he or
any person who would otherwise be a of which an Act absolves him or her from civil liability for anything done, or not done, while he or she is so engaged;
(h)
a person who does community work under an order imposed by a court.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 11 36. Meaning of "community work"
(1) Community work is any work that is done, or to be done—
(a) for a religious, educational, charitable or benevolent purpose; (b) for the purpose of promoting or arts;
(c)
for the purpose of sport, recreation, tourism or amusement;
(d)
for the purpose of conserving or protecting the environment;
(e)
for the purpose of establishing, carrying on or improving a community, social or cultural centre;
(f) for a political purpose;
(g) for the purpose of promoting the common interests of the community generally or of a particular section of the community; (h) for any other purpose specified in the regulations for the purposes of this section. (2) For the purposes of this Part, community work does not include any work of a kind that is specified in the regulations as work that is not community work for the purposes
of this Part.
37. Protection of volunteers from liability
(1) A volunteer is not liable in any civil
proceeding for anything done, or not done, in
good faith by him or her in providing a
service in relation to community work
organised by a community organisation.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 11 | Act No. 49/2002 |
(2) Any liability resulting from an act or
omission that would but for sub-section (1)
attach to the volunteer attaches instead to thecommunity organisation.
38. Exceptions to section 37(1)
(1) Section 37(1) does not apply to a
volunteer—
(a)
who knew, or who ought reasonably to have known, that at the relevant time he or she was acting—
(i) outside the scope of the community organisation; or
(ii) contrary to any instructions given by the community organisation in relation to the providing of the
service; or
(b) proper manner was, at the relevant
whose ability to provide the service in a or drugs.
(2) Section 37(1) also does not apply to a
volunteer—
(a) in respect of any claim to recover damages in respect of defamation; or (b) in respect of any proceedings that are brought under the Transport Accident Act 1986. (3) A reference to drugs in sub-section (1)(b) does not include a reference to drugs that were taken for a therapeutic purpose or that
were not taken voluntarily.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 11 (4) A reference to alcohol in sub-section (1)(b) does not include a reference to alcohol that was not consumed voluntarily.
39. Provisions concerning the liability of community organisations
(1) Section 37(2) does not override any
protection from liability that would have
applied to a community organisation if the
thing done, or not done, by the volunteer had
been done, or not done, by the community
organisation.(2) If more than one community organisation is involved in organising particular community work, section 37(2) applies to the community organisation or organisations that principally organised that work.
(3) In the case of a community organisation that
is a public authority or Agency within the
meaning of the Public Sector Management
and Employment Act 1998 or another
person or body acting on behalf of the State,
any liability incurred by the community
organisation under section 37(2) is incurred
by the State.
40. Certain indemnities etc. have no effect has no effect to the extent that it provides for a volunteer to give a community organisation an indemnity against, or to make a contribution to a community organisation in relation to, a liability—
(a)
that the volunteer would incur but for the operation of section 37(1); and
(b)
that the community organisation incurs under section 37(2).
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 11 | Act No. 49/2002 |
41. Application of section 37 provided on or after the commencement of section 11 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002.
42. Regulations
(1) The Governor in Council may make
regulations generally prescribing any matter or thing required or permitted by this Part to be prescribed, or necessary or convenient to be prescribed to give effect to this Part.
(2) The regulations—
(a)
may be of general or limited application; and
(b)
may differ according to differences in time, place or circumstance; and
(c)
may apply, adopt or incorporate any matter contained in any document as in force at a particular time either wholly, or partially, or as amended by the regulations.'.
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 12
PART 3—CORONERS ACT 1985
12. New section 18A inserted
See:
After section 18 of the Coroners Act 1985 Act No. insert—
10257/1985. Reprint No. 3
'18A. Apology or reduction or waiver of fees as at
1 October
(1) In this section, "apology" means an
1998 and
expression of sorrow, regret or sympathy but amending does not include a clear acknowledgment of Act Nos 7/1999, fault. 27/2001,
45/2001 and(2) In an investigation of a death— 4/2002.
LawToday:(a) an apology; or
dpc.vic.
(b) a reduction or waiver of fees payable gov.au for a service provided to the person
who died—does not constitute an admission as to how
death occurred or the cause of death, for the
purposes of findings under section 19.(3) Sub-section (2) applies whether the apology or the reduction or waiver of fees—
(a) is made orally or in writing; or
(b)
is made before or after the investigation commenced.
(4) Nothing in this section affects the
admissibility of a statement with respect to a
fact in issue or tending to establish a fact inissue.
(5) This section applies to an apology or
reduction or waiver of fees made on or after the commencement of Part 3 of the Wrongs and Other Acts (Public Liability
Insurance Reform) Act 2002.'.
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 13 | Act No. 49/2002 |
PART 4—FOOD ACT 1984
13. Amendment of Food Act 1984
See:
| Act No. | After section 4(3)(a) of the Food Act 1984 |
| 10082/1984. | insert— |
| Reprint No. 6 | |
| as at | "(b) food that is donated to a person who |
| 1 January |
2002. distributes food for a charitable or
| LawToday: | benevolent purpose is not to be taken to be | |
| dpc.vic. | food that was given away for the purpose of | |
| gov.au | advertisement or in furtherance of trade or business;". |
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 14
PART 5—GOODS ACT 1958
14. Definitions
See:
In section 84(1) of the Goods Act 1958 for the Act No. definition of "services" substitute— 6265/1958.
Reprint No. 9' "services" has the same meaning as it has in the as at
8 October
Fair Trading Act 1999;'
1998 and
amending
Act Nos27/2001 and
44/2001.LawToday:
dpc.vic. gov.au
15. Application of Part
(1) In sections 85(1) and 85(5) of the Goods Act
1958 for "$15 000" (wherever occurring)
substitute "$40 000".
(2) In section 85 of the Goods Act 1958 for sub-
section (7) substitute—
"(7) If an amount greater than $40 000 is prescribed by the regulations for the purposes of this section, a reference in this
section to $40 000 is a reference to the
prescribed amount.".
16. New section 97A inserted
After section 97 of the Goods Act 1958 insert—
'97A. Limitation of liability in relation to sale of recreational services
(1) Subject to sub-section (2), a term of a sale of
recreational services is not void under
section 95 or 97 by reason only that the term
excludes, restricts or modifies, or has the
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 16 | Act No. 49/2002 |
effect of excluding, restricting or
modifying—
(a) the application in relation to that sale of recreational services of section 91 or 92; or (b) the exercise of a right conferred by section 91 or 92 in relation to that sale of recreational services; or (c) any liability of the seller for a breach of condition implied by section 91 or 92 in relation to that sale of recreational services.
(2) Sub-section (1) only applies if—
(a) the sale of recreational services was made on or after the commencement of Part 5 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002; and (b) the exclusion, restriction or limited to liability for death or personal injury; and
(c)
the term is in the prescribed form (if any) and contains the prescribed particulars (if any); and
(d)
if there is a prescribed form for the term, the seller has not made a false or misleading statement as to a material particular in or in relation to the term; and
(e)
the term was signed by the purchaser prior to the sale of the recreational services.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 16 (3) Despite sub-section (1), a person is not
entitled to rely on a term of a sale of
recreational services which complies withsub-section (2) if—
(a) the person has done or omitted to do something in relation to the sale of those recreational services that but for sub-section (1) would— (i) be an act or omission to which section 91 or 92 would apply; or
(ii) give rise to the exercise of a right conferred by section 91 or 92; or
(iii) be a breach of a condition implied by section 91 or 92; and
(b) the act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission.
(4) In this section—
"disease" includes any physical or mental
ailment, disorder, defect or morbid
condition, whether of sudden onset or
gradual development and whether of
genetic or other origin;
"injury" means any physical or mental
injury;
"personal injury" means—
(a) (including the aggravation,
an injury of an individual injury of the individual); or
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 17 | Act No. 49/2002 |
(b) the contraction, aggravation,
acceleration or recurrence of a
disease of an individual; or(c) aggravation, acceleration or
recurrence of any other condition,
circumstance, occurrence, activity,
form of behaviour, course of
conduct or state of affairs in
relation to an individual that is or
may be harmful orthe coming into existence, the harm or disadvantage to—
(i) the individual; or
(ii) the community;
"recreational services" means services that consist of participation in—
(a)
a sporting activity or a similar leisure-time pursuit; or
(b) any other activity that—
(i) involves a significant degree
of physical exertion or
physical risk; and(ii) is undertaken for the
purposes of recreation,
enjoyment or leisure.'.
17. New section 119A inserted
After section 119 of the Goods Act 1958 insert—
"119A. Transitional
Despite the amendment of this Part by Part 5 commencement of that Part 5, continues to
of the Wrongs and Other Acts (Public
Liability Insurance Reform) Act 2002, this
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 17 apply to a sale of goods or services or lease
of goods entered into before thatcommencement.".
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 18 | Act No. 49/2002 |
PART 6—ESSENTIAL SERVICES COMMISSION ACT 2001
18. Amendment of purpose provision
Act No.
| 62/2001 | In section 1(1) of the Essential Services |
| and | Commission Act 2001— |
| amending | |
| Act Nos | (a) in paragraph (b), for "industries." substitute |
| 11/2002 and | |
| 32/2002 | "industries; and"; |
| LawToday: |
(b) after paragraph (b) insert—
| | "(c) to provide a mechanism for monitoring and providing advice to Government on matters relating to the insurance |
industry and the operations of certain
statutory insurers in Victoria.".
19. Definitions
In section 3 of the Essential Services
Commission Act 2001 insert the following
definitions—
' "insurance" does not include reinsurance;"insurance business" means the business of
undertaking liability, by way of insurance, in
respect of any loss or damage, including
liability to pay damages or compensation,
contingent upon the happening of a specified
event, and includes any business incidentalto that business;
"insurance industry" means the industry
comprising—
(a)
persons or bodies carrying on insurance business in Victoria; and
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 20
(b) bodies established for the purpose of providing discretionary indemnities in Victoria for liability for loss or damage arising from the conduct of a profession or occupation— but does not include the statutory insurers or the Victorian Managed Insurance Authority established under the Victorian Managed
Insurance Authority Act 1996;
"statutory insurer" means—
(a) the Transport Accident Commission
established under the Transport
Accident Act 1986; or(b) the Victorian WorkCover Authority
established under the Accident
Compensation Act 1985;'.
20. New sections 10A and 10B inserted
After section 10 of the Essential Services
Commission Act 2001 insert—"10A. Functions of the Commission in relation to the insurance industry
(1) Without limiting section 10, the functions of
the Commission include the function of
advising the Minister (and any other Minister
that the Minister specifies in writing) on any
matter relating to the insurance industry that
the Minister refers to it for advice.
(2) The matters referred to the Commission
under this section may include matters
relating to the availability and affordability
of insurance and indemnities.
(3) Section 8 and Parts 5 and 6 do not apply to the functions of the Commission under this section.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 20 | Act No. 49/2002 |
(4) The Commission may only exercise its
powers under section 37 to require information from another State regulatory body or from a regulatory body of another State or Territory or of the Commonwealth.
information in relation to insurance if the
10B. Functions of the Commission in relation to the statutory insurers
(1) The Minister for the time being
administering the Transport Accident Act
1986 may request the Commission—
(a) to review any charges order made or proposed to be made under section 110 of that Act; and (b) to provide advice or make relation to that order or proposed order.
(2) The Minister for the time being
administering the Accident Compensation
(WorkCover Insurance) Act 1993 mayrequest the Commission—
(a) to review any premiums order made or proposed to be made under section 15 of that Act; and (b) to provide advice or make relation to that order or proposed order.
(3) The Commission may require a statutory
insurer to give the Commission any
information or a copy of any document that
the Commission considers will assist it in
carrying out a function under this section in
relation to that statutory insurer.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 21 (4) A statutory insurer must comply with a
requirement of the Commission under this section despite anything to the contrary in any other Act or law.
(5) Section 8 and Parts 3, 4, 5, 6 and 7 do not apply to the functions of the Commission under this section.".
21. Power to obtain information and documents
After section 37(5) of the Essential Services
Commission Act 2001 insert—"(5A) Despite anything to the contrary in any other Act or law, a person who is a member or employee of a statutory body is not to be found guilty of an offence or to be in breach
of a statutory duty by providing information or a copy of a document to the Commission if—
(a) the person provides information or a copy of a document to the Commission in compliance with a requirement under this section; and (b) the Commission made the requirement under section 10A; and
(c)
nothing in the information or document provided could lead to the identification of an individual insurance policy holder or indemnified person.".
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 22 | Act No. 49/2002 |
PART 7—COUNTRY FIRE AUTHORITY ACT 1958
22. Penalties in relation to returns
See:
| Act No. | In section 78(1) of the Country Fire Authority |
| 6228/1958. | Act 1958 for "10 penalty units and a further |
| Reprint No. 10 | |
| as at | penalty of 1 penalty unit for each day after |
| 24 May 2001 | 15 August during which the return is not lodged" |
| and | |
| amending | substitute "60 penalty units". |
| Act Nos 50/1989, 27/2001, 32/2001 and | |
| 9/2002. LawToday: dpc.vic. gov.au |
23. Inspection of documents
(1) After section 79(1)(a) of the Country Fire Authority Act 1958 insert—
"(aa) reconciling amounts paid by a body to the
Authority as contributions with amounts specified in invoices issued by that body for insurance of property against fire as being payable for a fire service contribution (however described); or".
(2) In section 79(3) of the Country Fire Authority
Act 1958 for "5 penalty units and a further penalty of 1 penalty unit for each day that the failure to comply continues" substitute "60 penalty units".
(3) After section 79(3) of the Country Fire
Authority Act 1958 insert—
"(4) A person must not, without reasonable
excuse, hinder or obstruct an officer
appointed by the Authority who is exercising
a power under sub-section (2).
Penalty: 120 penalty units.".
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 24 24. Adjustment of contributions by owners and insurance intermediaries
At the end of section 81 of the Country Fire
Authority Act 1958 insert—"(2) Despite anything in this Act, if the Authority
is satisfied that, because of exceptional
circumstances, the contribution to be paid by
an insurance intermediary or the owner of a
property calculated under section 80A
exceeds an amount that the Authority
determines to be equitable, the Authority
may, at its absolute discretion, determine an
amount of contribution for that insurance
intermediary or owner that is less than the
contribution calculated under section 80A.
(3) If a new amount of contribution is
determined under sub-section (2), the
Authority may—
(a) if the contribution under section 80A has not yet been paid, require the insurance intermediary or the owner to pay that new amount instead of the amount payable under section 80A; or (b) if the contribution under section 80A has been paid to the Authority, refund to the insurance intermediary or owner the difference between the contribution paid under section 80A and the new amount.
(4) It is sufficient compliance with section
80A(3)(b) if an insurance intermediary or the owner of a property pays an amount required under sub-section (3) to be paid by that
insurance intermediary or owner.".
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 25 | Act No. 49/2002 |
25. New section 81A inserted
After section 81 of the Country Fire Authority
Act 1958 insert—
"81A. Disclosure of information by Authority
(1) The Authority may disclose to the Secretary to the Department of Justice, the Secretary to the Department of Treasury and Finance or
the Emergency Services Commissioner or
otherwise publish in any manner the
Authority thinks fit any information obtained
by the Authority under section 77, 78, 79,
80A or 81.(2) The Secretary to the Department of Justice, the Secretary to the Department of Treasury and Finance or the Emergency Services
Commissioner may publish in any manner the Secretary or Commissioner thinks fit any information disclosed to the Secretary or Commissioner by the Authority under sub- section (1).
(3) Nothing in sub-section (1) or (2) permits the disclosure or publication of information that could lead to the identification of an
individual.
(4) The Authority may disclose to a member of the police force any information obtained by the Authority under section 77, 78, 79, 80A or 81 if the Authority is satisfied that the
disclosure is reasonably necessary for the purpose of the investigation of an offence against this Act or any other Act or law.".
__________________
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 26
PART 8—METROPOLITAN FIRE BRIGADES ACT 1958
26. Penalties in relation to returns
See:
In section 41(1) of the Metropolitan Fire Act No. Brigades Act 1958 for "10 penalty units and a 6315/1958.
Reprint No. 8further penalty of 1 penalty unit for each day after as at 15 August during which the return is not lodged" 25 March
1999substitute "60 penalty units". and
amendingAct Nos 50/1989,
86/1998
48/2000 and9/2002.
LawToday:
dpc.vic.gov.au 27. Inspection of documents
(1) After section 42(1)(a) of the Metropolitan Fire Brigades Act 1958 insert—
"(aa) reconciling amounts paid by a body to the
Board as contributions with amounts specified in invoices issued by that body for insurance of property against fire as being payable for a fire service contribution (however described); or".
(2) In section 42(3) of the Metropolitan Fire
Brigades Act 1958 for "5 penalty units and a
further penalty of 1 penalty unit for each day that
the failure to comply continues" substitute
"60 penalty units".
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 28 | Act No. 49/2002 |
(3) After section 42(3) of the Metropolitan Fire
Brigades Act 1958 insert—
"(4) A person must not, without reasonable
excuse, hinder or obstruct an officer
appointed by the Board who is exercising a
power under sub-section (2).Penalty: 120 penalty units.".
28. Adjustment of contributions by owners and brokers
At the end of section 45 of the Metropolitan Fire
Brigades Act 1958 insert—"(2) Despite anything in this Act, if the Board is
satisfied that, because of exceptional
circumstances, the contribution to be paid by
an insurance intermediary or the owner of a
property calculated under section 44A
exceeds an amount that the Board determines
to be equitable, the Board may, at its
absolute discretion, determine an amount of
contribution for that insurance intermediary
or owner that is less than the contribution
calculated under section 44A.
(3) If a new amount of contribution is
determined under sub-section (2), the Board
may—
(a)
if the contribution under section 44A has not yet been paid, require the insurance intermediary or the owner to pay that new amount instead of the amount payable under section 44A; or
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 s. 29
(b) if the contribution under section 44A has been paid to the Board, refund to the insurance intermediary or owner the difference between the contribution paid under section 44A and the new amount.
(4) It is sufficient compliance with section
44A(3)(b) if an insurance intermediary or the owner of a property pays an amount required under sub-section (3) to be paid by that
insurance intermediary or owner.".
29. New section 45A inserted
After section 45 of the Metropolitan Fire
Brigades Act 1958 insert—
"45A. Disclosure of information by Board
(1) The Board may disclose to the Secretary to the Department of Justice, the Secretary to the Department of Treasury and Finance or the Emergency Services Commissioner or
otherwise publish in any manner the Board
thinks fit any information obtained by the
Board under section 38, 40, 41, 42, 44A or
45.(2) The Secretary to the Department of Justice, the Secretary to the Department of Treasury and Finance or the Emergency Services
Commissioner may publish in any manner the Secretary or Commissioner thinks fit any information disclosed to the Secretary or Commissioner by the Board under sub- section (1).
(3) Nothing in sub-section (1) or (2) permits the disclosure or publication of information that could lead to the identification of an
individual.
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
| s. 29 | Act No. 49/2002 |
(4) The Board may disclose to a member of the police force any information obtained by the Board under section 38, 40, 41, 42, 44A or
45 if the Board is satisfied that the disclosure
is reasonably necessary for the purpose of
the investigation of an offence against thisAct or any other Act or law.".
═══════════════
Wrongs and Other Acts (Public Liability Insurance Reform) Act
2002
Act No. 49/2002 Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 12 September 2002
Legislative Council: 10 October 2002
The long title for the Bill for this Act was "to amend the Wrongs Act
1958, the Coroners Act 1985, the Food Act 1984, the Goods Act 1958,
the Essential Services Commission Act 2001, the Country Fire
Authority Act 1958 and the Metropolitan Fire Brigades Act 1958 andfor other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 12 September 2002
Legislative Council: 10 October 2002
Absolute majorities:
Legislative Assembly: 9 October 2002
Legislative Council: 16 October 2002
0
0
0