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  • What Impact Has Civil Liability Act 2002 (NSW) Had On Damages and Personal Responsibility?

What Impact Has Civil Liability Act 2002 (NSW) Had On Damages and Personal Responsibility?

Date: February 12, 2006

Authors: LAC Lawyers

Essentially the change has been profound as people are now required to look after themselves and take responsibility for their actions.  The Civil Liability Act mainly deals with the question of damages whereas the amending Act deals with liability, but, with that said, the courts now pay proper respect for the concept of personal responsibility as required under the Civil Liability Act 2002 (NSW) ("the Act") and the Civil Liability Amendment (Personal Responsibility) Act 2003 ("the Amending Act"). The Act extends to cover personal injury damages even if they are recovered for breach of contract, breach of statutory duty or any other action.  Claims for economic and non-economic loss are defeated if the claimant does not suffer from at least 15% whole of body impairment or serious mental disorder.

The Act attempts to limit damages for economic loss to no more than three times the amount of average weekly earnings.  It caps gratuitous attendant care damages.  Likewise the maximum award for non-economic loss (general damages) has been capped.  Under the Amending Act the general principles of duty of care have been somewhat restricted as has the test of causation.  The onus falls on the plaintiff to prove the facts are relevant to the issue of causation on the balance of probabilities.

These Acts were introduced to promote the notion of personal responsibility and as a result they make it far more difficult for a plaintiff to succeed.  The Amending Act seeks to limit liability arising from recreational activities where there is either a risk warning or a disclaimer of liability and furthermore the warning is deemed to be sufficient even if it is only a general warning. In addition contributory negligence is now also applied more strictly.  Under Division 4; voluntary assumption of risk is now an effective defence and therefore it is now harder to succeed in negligence claims where injuries arise when an obvious risk can be voluntarily assumed. 

One of the fundamental changes in the law is that defendants now no longer owe a duty of care for failure to warn of obvious risks unless asked and they are therefore not liable for harm suffered as a result.  The duty of care owed by professional persons has been modified as it is now a defence too an allegation of professional negligence that if the professional acted in a manner which was widely accepted in Australia at the time by peer professional opinion as competent professional practice then that person is deemed competent. Professionals are still required to advise their clients/patients etc of all material risks involved. Compensation has been severely reduced and capped at approximately $400,000 for non-pecuniary loss. Under section 5S the court is able to discount an award for damages by 100% for contributory negligence.  In addition, contributory negligence also applies to claims for damages under the Compensation to Relatives Act 1987.

The Amending Act limits the class of claimants who can recover damages for psychiatric injury to persons who were at the scene and witnessed the harm which befell the plaintiff. The legislation sets out rules and the limits covering everything from mental harm, proportional liability, liability of public and other authorities, intoxication, self-defence, recovery by criminals, good samaritans, apologies, food donors, volunteers and damages for the birth of a child.

Previously the courts were awarding excessive damages and were looking to find fault where none existed.  The purpose of these Acts is to control the awarding of damages in personal injury matters by capping some heads of damage and abolishing others including exemplary or punitive damages.

The Amending Act does not protect persons who dive off a ledge at low water mark as they should have been aware of an obvious risk and any statutory authority involved now no longer has a pro-active duty to warn the plaintiff of obvious risks.  Plaintiffs must now pay proper regard to their own safety and the defendant no longer has a duty in these circumstances.  The court has applied this reasoning in the case of Vairy and Mulligan where they found that the plaintiff had undertaken an obvious risk which they were presumed to know and that the relevant authority was not liable for the failure to warn of these risks.  The same principal has applied in Waverley Municipal Council with Swain (2003) NSW CA61.  It is clear from the above decisions that where a person assumes an obvious risk, that is where the courts will let it lie.  They are reluctant to shift responsibility to an  authority as they see no reason for doing so in cases of individual choice Cole vs South Tweed Rugby League (2004) 8CA. 

Insurance Law - Insurance Claims - Property Claims - Denied/Rejected Insurance Claims - Large Losses

Date: November 05, 2013
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)

Insurance Law - Insurance Claims - The Process - Fraud - Denials - Good Faith - Fraudulent Claims - Insurance Contracts ACT 1984 As Amended - Part 1

Date: July 10, 2013
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)

Insurance Law - Insurance Claims - The Process - Fraud - Denials - Good Faith - Fraudulent Claims - Insurance Contracts ACT 1984 As Amended - Part 2

Date: July 10, 2013
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)

The Consequences When Convicted of A Criminal Offence

Date: July 12, 2012
Author(s): Steven Sher B.A., LL.B., LL.M. (Taxation)
This series of articles discusses the offences under Australian Law that can be classified as a criminal act and the consequent sanctions that may imposed by the Courts. Part 1 deal with the category of sanctions imposed, particularly monetary penalties.

Insurance Law - Queensland Flood Claims - Insurers Response

Date: January 25, 2011
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
On Friday 21 January 2011 an article appeared in the Sydney Morning Herald written by Eric Johnstone, Kirsty Needham and Josephine Tovey to which we refer you. The article is headed “Insurers say no to Brisbane” and we quote as follows

Insurance Law - Queensland, New South Wales and Victorian Flood Claims - Part 1

Date: January 21, 2011
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
During the course of the current storm disaster catastrophic damage has been experienced in all of the eastern states of Australia. Interestingly we have all heard of estimates of $500M, $1B, $5B and now $20B from the ANZ’s economists. In other words the rebuilding costs for floods will be substantial. As the Queensland Premier says, the damage bill will be noteworthy and that 28,000 homes will need to be rebuilt at a cost of approximately $8B out of a total rebuilding cost of $20B.

Insurance Law - Queensland, New South Wales and Victorian Flood Claims - Part 2

Date: January 21, 2011
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
In all such cases where there has been catastrophic water damage through the incident of storm and/or flood it is obvious that the full benefits of an insurance policy are more fully available where the cause of the damage is storm. That is, even where an insured does not have the benefit of flood cover and they can rely upon their policy of insurance for storm cover they are far better off irrespective of the type of building damaged without extending the policy.

Insurance Law - New South Wales and Queensland Emergency Flood Claims

Date: January 06, 2011
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Recently Eastern Australia has been swept by massive storms which have caused extensive storm and/or flood damage to both domestic and business establishments. The problem when it comes to flood damge is that many insureds fail to understand what their rights are and that under many policies flood damage is either not covered or only nominally.

Insurance Contracts Act - Changes to Insurance Law and Practice for Insureds, Insurers and Brokers

Date: August 02, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Important amendments to the Insurance Contracts Act 1984 (Commonwealth) (“the ICA”) were expected to be passed by the Commonwealth Government in the Spring session of the 2010 Parliament. Their passage will now have to await the sitting of the new Parliament in late 2010.

Insurance Law - Product Liability

Date: May 10, 2010
Author(s): LAC Lawyers
Generally product liability in law refers to the responsibility or the liability of manufacturers, distributors, suppliers, retailers, and others who produce and supply goods/products to the public which result in damages or injury caused by the use of a defective product.

Home Warranty Insurance

Date: December 31, 2008
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
There is an approved list of insurers who sell home warranty insurance for residential building work in NSW under the Home Building Act 1989. Essentially home warranty insurance is required for residential building work including the supply of a kit home where the value of the work exceeds $12,000. Previously minimum cover was stipulated at $200,000 but from 1st March 2007 this was increased to $300,000.

Insurance Law and Business Interruption Insurance

Date: December 05, 2007
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
People in business insure their premises, contents and stock against the material damage risks of fire, explosion and other perils, but have they given the same thought to the other problems which would arise following any of these events, the problems which manifest themselves when the fire engines have driven away.

Insurance Law - Storm Claims and the Newcastle/Hunter Region

Date: June 21, 2007
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Although underinsurance or the lack of insurance is a major problem for the community in both good and bad times its importance is critical in times of natural disasters including storms and cyclones. Every time there is a major storm either general or localised flooding is a problem.

What to expect when you call LAC Lawyers

Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.

Insurance Law - The different types of Insurance Claims and why they are sometimes denied

Date: October 09, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Claims are often denied by insurers for a variety of reasons. They may have been denied for anything from non-disclosure of material fact through to fraud or over-capitalisation of loss. Interestingly, there has been a fundamental change over the last ten years in the approach taken by insurers with the denial of claims.

The Benefits of Hiring A Lawyer

Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.

Australian General Insurance Claims Practice

Date: August 02, 2006
Author(s): LAC Lawyers

Why stay with your lawyer

Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.

Does The Duty of Utmost Good Faith Apply to Claims

Date: May 04, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Originally the duty of utmost good faith was a common law concept which applied directly to contracts of insurance.

Claim Brokers

Date: May 02, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Many corporate, commercial and business insureds shrug off the idea that they won’t get a fair deal from their insurer because of their buying power and they have an Insurance & Risk Manager, a Company Secretary/Finance Director and/or an Insurance Broker who are there to ensure this can’t and won’t happen. Think again.

Why Insurance Claims Are Not Paid

Date: May 02, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)

What Insurance Crisis - Is There Really One Following The Collapse Of HIH and FAI?

Date: February 12, 2006
Author(s): LAC Lawyers
Many commentators have gone out of their way to suggest there was an insurance crisis and that it arose out of increased litigation, more successful claims and higher awarded damages which led to the unaffordability of public, products and professional indemnity insurance.

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