Civil Liability Act 2002

Civil Liability Act 2002

This Act may be cited as the Civil Liability Act 2002.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears –

adult average weekly earnings means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading "AVERAGE WEEKLY EARNINGS, Australia: Original" in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time;

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;

duty means – a duty of care in tort; or a duty of care under contract that is co-extensive with a duty of care in tort; or another duty under statute or otherwise that is co-extensive with a duty of care referred to in paragraph (a) or (b);

future loss means all or any of the following:future economic loss; future general expenses; future medical expenses; future gratuitous services;

gratuitous services means services of a domestic nature or services relating to nursing or attendance provided to a person for which that person does not pay or is not liable to pay;

non-economic loss means any one or more of the following:pain or suffering; loss of amenities of life; loss of enjoyment of life; curtailment of life expectancy; bodily or mental harm;

personal injury includes – pre-natal injury; and impairment of a person's physical or mental condition; and disease.

This Act does not create or confer any cause of civil action for the recovery of damages.

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, other than Part 7, does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract in relation to any matter to which this Act applies and does not limit or otherwise affect the operation of such an express provision.

Subsection (3) extends to any provision of this Act even if the provision applies to liability in contract.

This Act is not a codification of the law relating to civil claims for damages for harm.

This Act does not apply to or in respect of civil liability – in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct; or relating to an award of damages for personal injury or death where the injury or death concerned resulted from smoking or other use of tobacco products.

Despite subsection (1), Parts 4 and 10C apply in respect of an intentional act that is child abuse, within the meaning of section 49J(3).

This Act, except Parts 2, 3, 5 and 5A, Divisions 1, 2, 3, 4 and 7 of Part 6 and Parts 7 and 8, does not apply to or in respect of civil liability relating to an injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies.

This Act does not apply to civil liability relating to an injury to which Division 2 of Part X of the Workers Rehabilitation and Compensation Act 1988 applies.

This Act does not apply to liability for compensation under the Workers Rehabilitation and Compensation Act 1988, the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011, the Criminal Injuries Compensation Act 1976 or the Anti-Discrimination Act 1998 or a scheduled benefit under the Motor Accidents (Liabilities and Compensation) Act 1973.

The regulations may exclude a specified class or classes of civil liability from the operation of all or any provisions of this Act.

Regulations referred to in subsection (5) may make transitional provision with respect to claims relating to acts or omissions which occurred before the commencement of the regulations.

This Act applies to a claim for damages for breach of a non-delegable duty.

Parts 2, 3 and 4 do not apply to a cause of action accrued before the commencement of this Act.

Part 5 and section 12 apply to a cause of action accrued whether before or after the commencement of this Act.

Part 5A applies to a cause of action accrued, and an action commenced, whether before or after the commencement of section 7 of the Civil Liability Amendment Act 2013.

However, Part 5A does not apply to an action commenced before the commencement of section 7 of the Civil Liability Amendment Act 2013 if – the hearing of the action had commenced before that commencement; or damages had been awarded in that action before that commencement; or a settlement had been reached in that action before that commencement, other than a settlement that only relates to damages that, if they had been awarded by a court, would be provisional damages within the meaning of section 8B(1).

Part 6, other than section 12, and Parts 7, 8, 9, 10 and 11 do not apply to a cause of action accrued before 4 July 2003.

Sections 28A, 28B, 28C and 28D do not apply to a cause of action accrued before the commencement of the Civil Liability Amendment Act 2005.

Section 28BA does not apply to a cause of action accrued before the commencement of section 9 of the Civil Liability Amendment Act 2013.

The amendment to section 28C effected by section 10 of the Civil Liability Amendment Act 2013 does not apply to a cause of action accrued before the commencement of section 10 of that Act.

Part 9A does not apply to a cause of action accrued before the commencement of the Civil Liability Amendment (Proportionate Liability) Act 2005.

Parts 8A and 8B do not apply in relation to a cause of action accrued before the commencement of the Civil Liability Amendment Act 2008.

Part 10B applies to a cause of action accrued after the commencement of that Part .

Section 49H applies only in respect of child abuse perpetrated after the commencement of that section.

Section 49J applies only in respect of child abuse perpetrated after the commencement of that section.

Division 4 of Part 10C extends to child abuse proceedings in respect of child abuse perpetrated before the commencement of that Division.

In this section – child abuse has the same meaning as in section 49J(3); child abuse proceedings has the same meaning as in section 49L.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B.

If it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was, at the time of the act or omission that caused the death, injury or damage, intoxicated to the extent that the person's capacity to exercise due care and skill was impaired, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage.

If there is a presumption of contributory negligence, the court is to assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater or lesser percentage determined by the court to be appropriate in the circumstances of the case.

The onus of satisfying the court that damages ought to be reduced on account of contributory negligence by a percentage of less than 25% is on the person whose death, injury or damage is the subject of the proceedings for the recovery of damages.

This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

Subject to subsection (6), a reference in this section to a person being "intoxicated" is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).

A person who has taken a drug for a medicinal purpose is not to be taken to be intoxicated for the purposes of this section if the person satisfies the court that he or she was not aware of the effect of the drug taken.

This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B.