Civil Law – Commemorating 20 years of the Civil Liability (New South Wales) Act 2002: overview of liability principles and leading case law

Arguably one of the most significant civil compensation reforms in New South Wales, the start of the Civil Liability Act 2002 (NSW) (CLA) March 20, 2002 (s 2) in retrospect has dramatically changed the landscape of negligence law.

In recognition of the 20th anniversary of the CLA’s coming into force, we’ve put together some of the most significant changes that have occurred in tort law reform, along with a list of the most significant cases during of the last 20 years in which the courts have discussed, interpreted and applied various provisions of the CLA.

Overview of liability principles under the Civil Liability Act 2002 (NSW)

Having proved that he has suffered an injury of the damages type, a plaintiff will establish his liability for negligence with proof of three elements: that the defendant owed the plaintiff a duty of care; that the defendant breached this obligation; and that such breach of duty has caused or materially contributed to the plaintiff’s injury. If a duty of care is found to have been owed to the plaintiff, that duty requires the defendant to exercise reasonable care (standard of care) with a view to avoiding or otherwise lessening foreseeable harm.

The CLA contains a wide range of provisions which restate and regulate the common law principles of liability for negligence: see ss. 5B, 5C, 5D and 5E.

There is now a rather complex interplay between the common law principles of negligence and statutory provisions.

Generally, the CLA does not alter the common law principles that determine the existence of a duty of care. Rather, at a general level, the CLA rather modifies the principles governing breach of duty and causation.

Whether or not there is a duty of care in a particular case is a matter that depends almost entirely on the common law, except in very specific circumstances such as in relation to public authorities, moral wrongs, recreational activities , professional negligence, intoxication and criminal acts. business. However, when the question is whether this duty has been breached or whether such breach has resulted in damage or injury, the CLA should be the first port of call.

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See also:

¶7-460 Roadmap – Commemoration of 20 years of the Civil Liability Act 2002 (NSW)

¶7-463 Roadmap – principles of liability under the Civil Liability Act 2002 (NSW)

Assessment of damages under the Civil Liability Act 2002 (NSW)

The CLA imposes restrictions on certain aspects of the recovery of personal injury damages, forever changing the common law approach to assessing damages.

The main areas where Part 2 of the CLA changed common law principles are loss of earnings (ss. 12 and 13), the discount rate applied to determine the present value of future economic loss (s. 14), non-economic loss (art. 16) and free aid (art. 15, 15A, 15B).

As for the discount rate, the discount rate of 3% set by the Tribunal de Grande Instance in Todorovic vs. Waller (1981) 150 CLR 402 no longer applies since the CLA prescribes a discount rate of 5%: s. 14.

Other restrictions include:

  • No exemplary or punitive damages can be awarded in an action for bodily injury caused by negligence: art 21.
  • Interest is excluded from damages for non-economic loss: s. 18.
  • A plaintiff cannot claim damages in a medical negligence case for the loss of a chance for a better result. To see Tabet versus Gett (2010) Aust Torts Reports ¶82-057; [2010] HCA 12.

Part 2A contains provisions for offenders in custody with respect to claims of inmate negligence against protected defendants, defined in section 26A as including the Crown, a government department and staff members, a health organization public and staff members, and any person with public powers. official duties or acting as a public official

Another important restriction introduced by the CLA relates to the damages awarded for the birth of a child. Part 11, s. 70 and 71 apply to any claim for damages in a civil suit for the birth of a child. It does not apply to any claim for damages by a child in civil proceedings for bodily injury suffered by the child before birth or during birth.

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See also:

¶7-487 Roadmap – Assessment of Damages under the Civil Liability Act 2002 (NSW)

¶29-050 CCH Personal Injury — Comparative Verdicts Finder (key practice tool).

Case definitions from the last 20 years

In recognition of the 20th anniversary of the coming into force of the CLA, we have compiled a list of some of the most significant cases in New South Wales over the past 20 years in which the courts have discussed and interpreted various provisions of the CLA.

This is not an exhaustive list of all cases, but rather a curated list of cases that highlight the application of the CLA, its interaction with the common law, and the interpretation of key provisions of the CLA.

Also included in the curated list are cases involving institutional responsibility for past child sexual abuse, as well as applications for permanent residence under Article 6A of the Limitation Act 1969 (NSW). Although not all of these cases involve the CLA (due to Section 3B(1)(a)), it is nonetheless important to note that these cases are part of an emerging area of ​​civil compensation law. .

The selected cases are grouped as follows:

¶7-496.1 Illegal Business; organized list of important cases.

¶7-496.2 Institutional Accountability and Abuse Act; organized list of important cases.

¶7-496.3 Medical negligence; organized list of important cases.

¶7-496.4 Mental impairment; organized list of important cases.

¶7-496.5 Traffic Accidents; organized list of important cases.

¶7-496.6 Liability of occupants; organized list of important cases.

¶7-496.7 Public authorities; organized list of important cases.

¶7-496.8 Recreational activities, obvious risk; organized list of important cases.

¶7-496.9 School authorities; organized list of important cases.

¶7-496.10 Workers’ Compensation; organized list of important cases.

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