Civil Liability Act 2002

This Act is the Civil Liability Act 2002.

This Act is taken to have commenced on 20 March 2002.

In this Act—

affected agreement, for Part 1C—see section 7C.

applicant, for Part 1C—see section 7D.

cognitive impairment has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

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 but does not include—

any payment authorised or required to be made under a State industrial instrument, or

any payment authorised or required to be made under a superannuation scheme, or

any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

mental health impairment has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

non-economic loss means any one or more of the following—

pain and suffering,

loss of amenities of life,

loss of expectation of life,

disfigurement.

special verdict of act proven but not criminally responsible has the same meaning as in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.

This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision.

Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract.

The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows—

civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except—

Part 1B (Child abuse—liability of organisations), and

section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and

Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

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

civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989—the whole Act except sections 15A and 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),

civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products—the whole Act except section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),

civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents,

civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988)—the whole Act except the provisions that subsection (2) provides apply to motor accidents,

civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents,

civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies—the whole Act (other than Part 1B),

Note.

Section 151E(2A) of the Workers Compensation Act 1987 provides that Division 3 of Part 5 of that Act does not apply to an award of damages that arises from abuse against a child (whether arising under Part 1B of this Act or the common law).

civil liability for compensation under the Workers Compensation Act 1987, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, the Workers’ Compensation (Dust Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978—the whole Act,

civil liability for financial assistance for economic loss under the Victims Support Act 2013—the whole Act.

The following provisions apply to motor accidents—

Divisions 1–4 and 8 of Part 1A (Negligence),

section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies,

section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies,

section 17A (Tariffs for damages for non-economic loss),

section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),

Division 7 (Structured settlements) of Part 2,

Part 3 (Mental harm),

section 49 (Effect of intoxication on duty and standard of care),

Part 7 (Self-defence and recovery by criminals),

Part 8 (Good samaritans).

The regulations may exclude a specified class or classes of civil liability (and awards of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation.

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.

Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Notes Notes included in this Act do not form part of this Act.

Savings and transitional provisions Schedule 1 has effect.

In this Part—

harm means harm of any kind, including the following—

personal injury or death,

damage to property,

economic loss.

negligence means failure to exercise reasonable care and skill.

personal injury includes—

pre-natal injury, and

impairment of a person’s physical or mental condition, and

disease.

This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

A person is not negligent in failing to take precautions against a risk of harm unless—

the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

the risk was not insignificant, and

in the circumstances, a reasonable person in the person’s position would have taken those precautions.

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

the probability that the harm would occur if care were not taken,

the likely seriousness of the harm,

the burden of taking precautions to avoid the risk of harm,

the social utility of the activity that creates the risk of harm.

In proceedings relating to liability for negligence—

the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

A determination that negligence caused particular harm comprises the following elements—

that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.