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

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.


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