Law Reform Act 1995

This Act, as in force at the commencement of this section, is, in part, a consolidation of provisions of the Law Reform (Abolition of the Rule of Common Employment) Act 1951 (the existing provisions) and provisions relocated from the following Acts (the relocated provisions)—

The Act is also a consolidation of provisions of the law about the age of majority and the legal capacity of persons whose relationship is husband and wife.

To remove any doubt, it is declared that the relocated provisions were not re-enacted by the Statute Law Revision Act (No. 2) 1995, but merely moved (without re-enactment) from the Acts in which they were enacted to this Act.

Without limiting subsections (1) and (3) and to further remove any doubt, it is also declared that the relocation to this Act of the relocated provisions did not impliedly repeal or amend, or otherwise affect the operation of, the existing provisions, the relocated provisions or the provisions of any other law and, in particular, did not affect the meaning or effect that the existing or relocated provisions, or the provisions of the other law, had because of the respective times when they were enacted.

In addition, it is declared that the relocation did not—

affect any jurisdiction or power of a court or judge; or

affect any principle or rule of law or equity; or

affect any right, privilege or liability; or

revive anything not existing or in force.

It shall not be a defence to an employer who is sued in respect of any injury or damage caused by the wrongful act, neglect, or default of a person employed by him or her, that that person was at the time the injury or damage was caused in common employment with the person suffering that injury or damage.

Any provision contained in a contract of service or apprenticeship, or in an agreement collateral thereto (including a contract or agreement entered into before the commencement of this section), shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the wrongful act, neglect, or default of any persons in common employment with him or her.

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

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

judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;

if more than 1 action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the dependants of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise)—the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;

any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.

for a judgment reversed on appeal—the first judgment given that is not later reversed on appeal; or

for a judgment varied on appeal—the judgment as varied.

This division does not—

apply to a tort committed before 12 January 1953; orEditor’s note—

affect a criminal prosecution against a person; or

render enforceable an agreement for indemnity that would not otherwise have been enforceable.

However, subsection (1)(c) does not apply to a claim for contribution or any liability arising from that claim if—

the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952, repealed section 7, would have applied to the claim apart from its repeal; and

the act or omission giving rise to the claim happened before 1 June 1968.

If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else—

a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and

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

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

If a contract or enactment providing for the limitation of liability applies to the claim, the amount of damages recoverable by the claimant because of subsection (1) is not to exceed the maximum limit applying to the claim.

Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence.

Division 2 shall apply in any case where 2 or more persons are liable or would, if they had all been sued, be liable by virtue of subsection (1) in respect of the damage suffered by any person.

Where any person dies as the result partly of his or her own failure to take reasonable care and partly of the wrong of any other person or persons, and accordingly if an action were brought for the benefit of the estate under the Succession Act 1981, section 66 the damages recoverable would be reduced under subsection (1), any damages recoverable in an action brought for the benefit of the dependants of that person under the Civil Proceedings Act 2011, part 10 must be reduced to a proportionate extent.

Where, in any case to which subsection (1) applies, one of the persons responsible for the damage avoids liability to any other such person or the person’s personal representative by pleading the Limitation of Actions Act 1974 or another Act limiting the time within which proceedings may be taken, the person shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection.

Where any case to which subsection (1) applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced.