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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:
(a) any payment authorised or required to be made under a State industrial instrument, or
(b) any payment authorised or required to be made under a superannuation scheme, or
(c) 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:
(a) pain and suffering,
(b) loss of amenities of life,
(c) loss of expectation of life,
(d) 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.
The appellant estate continued proceedings claiming damages for mesothelioma due to exposure in the Dust Diseases Tribunal. On appeal, there was a question as to whether the widow of the deceased had previously recovered “damages” for the purposes of s 15B(6).
Despite the apparently expansive form of the definition of “damages” in s 3, it does not extend beyond the heads of damages capable of being awarded by a tribunal dealing with a claim. [20]- [22]
The District Court awarded the respondent
$10,000 in nominal damages for breach of a deed. On appeal, the respondent argued that the Act does not preclude the award of nominal damages as nominal damages do not fall within the definition of “damages” in s 3.
Section 3 defines “damages” to include, subject to stated exceptions, “any form of monetary compensation”. Nominal damages could be awarded as they are not “monetary compensation”, being vindicatory and not compensatory. They are awarded because the plaintiff has established liability but has not established that any damages flowed from the relevant breach. However, the assessment of damages made by the trial judge was erroneous and a revised sum of $100 was awarded as a token of the appellant’s breach of the deed. [25]- [26], [36]-[37]
(1) 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.
(2) 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.
(3) Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract.
Three civil suits were brought against the State of NSW with respect to the shooting of Justin McMaster by a police officer. On appeal, the State challenged a number of the primary judge’s findings relating to whether the police officer was acting in defence of another officer. A question was raised as to whether there is any difference between the test of self-defence at common law and that under s 52 of the Act.
The immediate answer is that s 3A(1) does not limit protection from liability given by another provision or by another Act or law and, accordingly, the common law of self-defence remains. Given the terms of s 3A(1), s 52 does not purport to impinge on the common law and the common law is not to be construed by reference to s 52. [210]-[211]
Note: Special leave to the High Court of Australia was refused.
The respondent was found liable for a breach of its obligations of care under a mortgage origination deed. It submitted that its liability was limited by the apportionment provision contained in s 35 of the Act. There was a question as to whether the parties had made express provision for their rights, obligations and liabilities in a manner which differed from that provided by Part 4 of the Act so as to attract the application of s 3A(2).
The relevant clause made express provision for the rights and liabilities of the parties under the contract and was inconsistent with the application of the apportionment provision in Part 4 of the Act. Accordingly, s 3A(2) of the Act applied, the apportionment provision was inapplicable and the respondent’s liability was not limited. Section 3A does not require any particular form of wording to effect a contracting out and no reference needs to be made to the Act. Rather, all that matters is that the contractual indemnity is inconsistent with the provisions of Part 4. [9]-[16]
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) 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:
(ia) Part 1B (Child abuse—liability of organisations), and
(i) 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
(ii) 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
(iii) Part 2A (Special provisions for offenders in custody),
(b) 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)),
(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)),
(d) 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,
(e) 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,
(e1) 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,
(f) 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),
(g) 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,
(h) civil liability for financial assistance for economic loss under the Victims Rights and Support Act 2013 –the whole Act.
(2) The following provisions apply to motor accidents:
(a) Divisions 1-4 and 8 of Part 1A (Negligence),
(a1) 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,
(b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies,
(c) section 17A (Tariffs for damages for non- economic loss),
(c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)),
(d) Division 7 (Structured settlements) of Part 2,
(e) Part 3 (Mental harm),
(f) section 49 (Effect of intoxication on duty and standard of care),
(g) Part 7 (Self-defence and recovery by criminals),
(h) Part 8 (Good samaritans).
(3) 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.
A coal miner was driving home after three successive 12-hour shifts. He suffered serious injury when the car drove off the road across oncoming lanes and collided head on with a tree. The primary judge found that the employer, Coalroc Contractors, was negligent in failing to require Mr Matinca to submit for its approval a personal travel management plan specifying his proposal for managing fatigue on his journey home which would have required Mr Matinca to stop and rest for about 20-30 minutes which would have prevented the accident. The Court of appeal allowed the appeal.
On s 3B
The Civil Liability Act did not apply to this claim under s 3B(1)(f): [10]. Consequently, although s 5D(3)(b) prohibits evidence as to what a plaintiff would have done in a particular situation, unless it is against the plaintiff’s interests, the prohibition does not apply: [76].
The appellant and respondent were in a de facto relationship for about 17 years. The respondent alleged that the appellant assaulted her in their home where he grabbed and shook her and pushed her, causing her to fall and strike her head on a coffee table. The primary judge awarded the respondent $163,786.46 in damages. The appellant appealed that decision. The Court of Appeal dismissed the appeal.
On s 3B:
The claim was not governed by the CLA by function of s 3B(1)(a) because the evidence established that the appellant formed an intention to injure the respondent when he pushed her: [34]-[43].
NSWCA decisions referred to in discussion:
Dickson v Northern Lakes Rugby League
Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294
Mr Cavanagh suffered serious injury to his cervical spine and right shoulder due to the nature and conditions of his work as the course manager at the Bushland Drive Racecourse at Taree between around 1999 and February 2011. Mr Cavanagh sued his employer. It was agreed that Mr Cavanagh’s employer owed him a duty of care. It was further agreed that Mr Cavanagh’s employment substantially contributed to his injuries. The primary judge dismissed the claim on the basis that Mr Cavanagh’s employer had not breached their duty of care, but notionally assessed the damages at $1,004,111,04. Mr Cavanagh appealed the decision. The Court of Appeal allowed the appeal.
On s 3B: The Civil Liability Act 2002 (NSW) is disapplied by s 3B(1)(f), because Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) is applicable: [5].
The respondent, Ms Skinner, was employed as a police officer in the New South Wales Police Force. She commenced training in 1992. Her career was marked by several traumatic events and both personal and work-related issues. She received psychological and psychiatric counselling and assessment on several occasions from 1998 some of which were initiated by her and some by the Police Force. In January 2008, she sought to join the mounted police and was assessed by a police psychologist. Ms Skinner did not disclose any symptoms of post-traumatic stress disorder (PTSD). In February 2010, Ms Skinner was discharged on medical grounds and was suffering from a major depressive disorder and PTSD. In 2017, Ms Skinner commenced proceedings seeking work injury damages from the State. Ms Skinner alleged that the Police Force owed her a duty of care and was negligent in failing to provide adequate support for her psychiatric conditions.
The primary judge found that the Police Force breached its duty of care by failing to conduct a thorough mental health assessment of Ms Skinner from May 2007. This breach caused Ms Skinner to suffer major depression, but not her PTSD. A 40% reduction was made for the contingency that her disability would have arisen in any event from non- tortious PTSD and a pre-existing disposition to depression and anxiety. A 10% reduction was also made for Ms Skinner’s contributory negligence in failing to report her psychological condition to Ms Hanna. The trial judge awarded her damages of $743,780. The Court of Appeal dismissed the appeal.
On s 3B: The claim was not subject to the provisions of the Civil Liability Act as it was a claim for work injury damages and was therefore governed by the Workers Compensation Act 1987 (NSW).
The first respondent, Mr Metri, was employed by the appellant, Nestlé Australia Ltd (“Nestlé”) as a picker and forklift driver. On 16 August 2012, a forklift which Mr Metri was operating inexplicably accelerated beyond its usual speed, then suddenly decelerated, throwing Mr Metri to the ground. The forklift continued moving and ran over his left leg. Mr Metri suffered injury resulting in the amputation of his left leg below the knee. The forklift was manufactured by the second respondent, Linde Material Handling Pty Ltd (“Linde”) who also serviced and repaired the forklift. When a fault was detected, the vehicle would be “tagged out” by Nestlé and Linde would repair the forklift before returning it. Six days before Mr Metri’s accident, the forklift was involved in a similar accident. The uninjured driver “tagged out” the forklift and reported the incident to his Nestlé supervisor. The Linde technician was informed that the “speed is playing up”, tested the vehicle, and believing that the fault had been addressed, returned it. The forklift was not fitted with a seatbelt and Nestlé had not retrofitted a seatbelt. In 2015, Mr Metri commenced proceedings against Nestlé alleging negligence. Linde was eventually joined as second defendant. The primary judge upheld Mr Metri’s claim against Nestlé but dismissed his claim and Nestlé’s cross- claim against Linde. The Court of Appeal dismissed Nestlé’s appeal and also dismissed Mr Metri’s cross-appeal against Linde.
On s 3B: Ordinarily, a claim for workplace injury damages is subject to the Workers Compensation Act 1987 (NSW) and therefore exempt from the operation of the Civil Liability Act by s 3B(1)(f) of that Act: [7]. However, a claim for “motor accident damages” is excluded from the definition of “workplace injury” by s 205 of the Workplace Injury Management and Workplace Compensation Act 1998 (NSW): [8]. Instead, the Motor Accident Compensation Act 1999 (NSW) applies. Various provisions of the Civil Liability Act do not apply to motor accident compensation claims, under s 3B(1); however, under s 3B(2) various other provisions are explicitly applied to such claims: [9]. In this case, it was relevant that , Pt 1A (Negligence), Divs 1-4 and 8, applied to motor accidents, and in particular Div 2 (Duty of care),Div 3 (Causation), and Div 8 (Contributory negligence):[9]. Since there was no dispute about the quantum of damages, there was no need to consider Ch 5 of the Motor Accident Compensation Act 1999 (NSW).
On s 5B: Section 5B provides a structure for the analysis of breach of duty by requiring the identification of, first, the relevant risk of harm and, secondly, relevant precautions: [70].
Ms Walker (the first respondent) injured herself by falling off a step while entering an accommodation hut at a grazing property in July 2015. The step consisted of a plank of wood resting on two timber stump blocks. Ms Walker was employed as a shearer’s cook by the second respondent, Shear Away Pty Ltd (“Shear Away”). Ms Walker sued the occupier of the premises, Top Hut Banoon Pastoral Co Pty Ltd (“Top Hut”) for damages. Top Hut admitted liability. Top Hut cross-claimed for contribution or indemnity against Shear Away, contending that Shear Away had failed to take care of Ms Walker’s safety by not conducting a sufficiently careful safety assessment. The primary judge dismissed the cross-claim and awarded Ms Walker damages in the sum of $992,866.34. Top Hut appealed that decision. The Court of Appeal dismissed the appeal.
On s 3B: The civil liability of an employer for injury to a worker would give rise to an award of damages to which Pt 5 Div 3 of the Workers Compensation Act 1987 (NSW) applied: s 151E.
Accordingly, the Civil Liability Act did not apply: Civil Liability Act, s 3B(1)(f): [18]. Instead, the principles of the general law apply to determining the liability of the employer (in this case Shear Away).
On s 13: The Civil Liability Act applied to the assessment of damages against Top Hut, including s 13 in relation to an award for future economic loss: [37], [52]-[53]. Under s 13, a trial judge is entitled to make an “evaluative decision” about what size of adjustment to an award for future economic loss might best reflect the claimant’s future prospects: [57]. An appellate court will approach that evaluative decision with caution and will interfere with it only if there was an error of fact or law or manifest unreasonableness or injustice: [57].
Mr Dickson was subjected to a spear tackle, or dangerous throw, by Mr Fletcher in the course of a rugby league match. He asserted that the Respondent rugby league club was vicariously liable for the loss caused by the Mr Fletcher’s dangerous tackle. Mr Fletcher conceded at trial that the spear tackle was an intentional act, but denied that he intended to cause injury in a way that would exclude the operation of the CLA by reason of s 3B(1)(a). If governed by the CLA, the claim would fail by reason of s 5L, as Mr Dickson’s injuries were the materialisation of an obvious risk of a dangerous recreational activity. The primary judge held that Mr Dickson had failed to establish that Mr Fletcher intended to cause injury.
On s 3B: There appears to be no authoritative determination of the meaning of the phrase “intent to cause injury” in s 3B(1)(a): [171]-[172]. The phrase in the context of the CLA means actual, subjective and formulated intention, to which the defendant has turned his or her mind. It does not include recklessness, imputed or presumed intention: [4]-[9], [19], [181]-[186]. The provision is not engaged where the intent is to cause an injury which is not the subject of the claim: [15].
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.
(1) 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.
(2) 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.
(3) Notes Notes included in this Act do not form part of this Act.
(4) Savings and transitional provisions Schedule 1 has effect.
23 Nov 2024
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.