Introduction

The following information is meant as a guide only, for consumers to better understand changes made, and those changes being considered, to laws in Australia, which concern "personal liability".

In effect, State Governments have moved to tighten up existing laws to make persons more responsible for their own actions rather then allowing such a long bow to be drawn if finding someone with deep pockets to blame for something.

The unfortunate side affect to this is that some people will be left with no recourse because governments while quick to stop the "rort's" have not paid much attention to creating a safety net for those genuine matters that pop up from time to time but, for some reason or another don't meet the criteria.

Time will sort it out but, in the meantime we have noticed a reluctance for solicitors to engage in "suck it and see" litigation where they have a long history of prosecuting claims regardless of merit with the intention to create nuisance to an insurer and thus, extract nuisance monies from the insurer who in the past seem to have been only too willing to pay because, in many instances it would cost more to fight it than pay.

Well, solicitors are in the firing line now which means that they run a very real risk of being caught with the bill themselves if the claim is found to be without sufficient merit.

There are other areas on this website well worth examining in respect of the workings of insurance. If we can be of any further assistance to readers please do not hesitate to contact us with any query.

Acts reforming civil liability law introduced to date are:

• Personal Injuries Proceedings Act 2002 (Qld)
• Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 (SA)
• Civil Liability Act 2002 (Tas)
• Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic)
• Civil Liability Act 2002 (WA)
• Civil Law (Wrongs) Act 2002 (ACT)

The Northern Territory has deferred debate on its proposed legislative reform until February 2003.

A summary of the reforms introduced by these Acts follows:
Pre-court claim procedures

Queensland

Before legal proceedings are commenced, the parties must:

• provide a notice of claim and response;
• exchange information and documents relating to the claim (legal professional privilege will not apply in respect of certain documents);
• engage in a compulsory conference to clarify issues and attempt to resolve the matter; and
• exchange mandatory final offers of settlement if the claim is not settled at the compulsory conference.

Further bills introduced in Victoria and the Northern Territory foreshadow the introduction of pre-court claim procedures.

Damages
General damages

South Australia has introduced a threshold of seven days' impairment and a maximum cap on general damages of $240,000.00.

Victoria has introduced a cap of $371,380.00. Western Australia has introduced a threshold (of $12,000.00) and a sliding scale on the awarding of general damages. Queensland, Tasmania and the ACT have not introduced thresholds or caps.

Damages for economic loss

Damages for economic loss in Queensland, Victoria, Western Australia and the ACT are capped at 3 times average weekly earnings.

In South Australia, no damages will be awarded for the first week of incapacity, and there is a cap on damages of $2.2 million for past and future economic loss.

Discount rate

The prescribed discount rate in Queensland, South Australia and Victoria is now 5%.

Damages for gratuitous services

In Queensland, damages are not to be awarded for gratuitous services unless the services are provided for a minimum of six hours per week and for a minimum of six months. In South Australia, damages for gratuitous services are capped based on the allowance for average weekly earnings and are limited to services provided by a parent, spouse or child. Western Australia has introduced a $5,000.00 threshold with a cap on hourly rates (linked to average weekly earnings).

Exemplary, punitive or aggravated damages

In Queensland, a court cannot award exemplary, punitive or aggravated damages.

Structured settlements

All jurisdictions have introduced provisions allowing for a court to make consent orders for structured settlements.

Liability
Apologies

In Queensland, South Australia, Tasmania and Victoria an apology may be made without this constituting an admission of liability.

Mental or nervous shock

(a)	was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
(b)	is a parent, spouse or child of a person killed, injured or endangered in the accident.

Criminal activity

In South Australia, Tasmania and the ACT, no liability for damages arises if a court is satisfied that the accident occurred while the injured person was engaged in conduct constituting an indictable offence (in SA and the ACT) or a serious offence (in Tasmania) and that the injured person's conduct contributed materially to the risk of injury. Courts have a discretion to award damages in exceptional circumstances.

In Victoria, courts are to consider whether a plaintiff was engaged in an illegal activity in determining whether a defendant's duty of care has been discharged.

Intoxication

In South Australia, Tasmania, and the ACT, where a person is injured while intoxicated, contributory negligence is presumed. The injured person may rebut the presumption.

In Victoria, courts are to give consideration as to whether a plaintiff was intoxicated and the level of intoxication in determining whether a defendant's duty of care has been discharged.

Good Samaritans

Good samaritans are protected from liability:

• in South Australia, where they have rendered assistance in good faith and without recklessness;
• in Victoria, where they have rendered assistance in good faith; and
• in the ACT, where they have rendered assistance honestly and without recklessness.

Volunteers

In Queensland, ambulance officers, fire and rescue officers, and other designated persons are exempt from liability when rendering assistance in good faith and without recklessness.

In Victoria and Western Australia, volunteers are exempt from liability while carrying out community work in good faith.

In the ACT volunteers are exempt from liability while carrying out community work honestly and without recklessness.

Costs

In Queensland, where a court awards $30,000.00 or less in damages, no costs are to be awarded unless the amount awarded is equal to, or more than a plaintiff's mandatory final settlement offer. Where the damages awarded are more than $30,000.00 but less than $50,000.00, limited costs are to be awarded.

In the ACT, where a court awards $50,000.00 or less in damages, the maximum costs that may be awarded to:

• a plaintiff is 20% of the amount recovered or $10,000.00, whichever is the greater;
• a defendant is 20% of the amount that a court (or taxing officer) decides is the amount sought to be recovered by the plaintiff or $10,000.00, whichever is the greater.