{"id":"qld:act-2003-016","name":"Civil Liability Act 2003","slug":"civil-liability-act-2003","collection":"act","jurisdiction":"qld","status":"in_force","isInForce":true,"actNumber":"16 of 2003","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":44187,"registerId":"qld-act-2003-016-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"ch.1-pt.1","sectionType":"part","heading":"Introduction","content":"# Introduction","sortOrder":0},{"sectionNumber":"sec.1","sectionType":"section","heading":"Short title","content":"### sec.1 Short title\n\nThis Act may be cited as the Civil Liability Act 2003 .","sortOrder":1},{"sectionNumber":"sec.2","sectionType":"section","heading":"Commencement","content":"### sec.2 Commencement\n\nSubject to subsections (2) and (3) , this Act is taken to have commenced on 2 December 2002.\nThe following provisions commence on assent—\nchapter 2 , part 1 , division 7 , part 3 , division 2 and part 4\nchapter 3 , parts 2 and 4\nsections 53 , 54 and 56 to 60\nchapter 4 , parts 1 and 2\nchapter 5\nchapter 6 and schedule 1 .\nChapter 2 , part 2 commences on a day to be fixed by proclamation.\n(sec.2-ssec.1) Subject to subsections (2) and (3) , this Act is taken to have commenced on 2 December 2002.\n(sec.2-ssec.2) The following provisions commence on assent— chapter 2 , part 1 , division 7 , part 3 , division 2 and part 4 chapter 3 , parts 2 and 4 sections 53 , 54 and 56 to 60 chapter 4 , parts 1 and 2 chapter 5 chapter 6 and schedule 1 .\n(sec.2-ssec.3) Chapter 2 , part 2 commences on a day to be fixed by proclamation.\n- • chapter 2 , part 1 , division 7 , part 3 , division 2 and part 4\n- • chapter 3 , parts 2 and 4\n- • sections 53 , 54 and 56 to 60\n- • chapter 4 , parts 1 and 2\n- • chapter 5\n- • chapter 6 and schedule 1 .","sortOrder":2},{"sectionNumber":"sec.3","sectionType":"section","heading":"Notes in text","content":"### sec.3 Notes in text\n\nA note in the text of this Act is part of this Act.","sortOrder":3},{"sectionNumber":"ch.1-pt.2","sectionType":"part","heading":"Application of Act","content":"# Application of Act","sortOrder":4},{"sectionNumber":"sec.4","sectionType":"section","heading":"Application of Act","content":"### sec.4 Application of Act\n\nSubject to section 5 , this Act applies to any civil claim for damages for harm.\nThe following provisions apply only in relation to a breach of duty happening on or after 2 December 2002—\nchapter 2 , part 1 , divisions 1 to 6\nchapter 2 , part 3 , division 1\nsection 55 .\nChapter 2 , part 2 applies only in relation to a breach of duty happening on or after the commencement of this subsection.\nThe following provisions apply in relation to a breach of duty happening on or after the day this Act receives assent—\nchapter 2 , part 4\nsections 52 , 54 , 56 , 57 , 58 , 59 , 60 , 72 .\nChapter 2 , part 5 applies only in relation to a breach of duty happening on or after the commencement of this subsection.\nSections 64 , 65 , 66 , 67 and 73 apply in relation to personal injuries damages regardless of when the injury happened.\ns 4 amd 2003 No. 77 s 40 ; 2004 No. 23 s 74\n(sec.4-ssec.1) Subject to section 5 , this Act applies to any civil claim for damages for harm.\n(sec.4-ssec.2) The following provisions apply only in relation to a breach of duty happening on or after 2 December 2002— chapter 2 , part 1 , divisions 1 to 6 chapter 2 , part 3 , division 1 section 55 .\n(sec.4-ssec.3) Chapter 2 , part 2 applies only in relation to a breach of duty happening on or after the commencement of this subsection.\n(sec.4-ssec.4) The following provisions apply in relation to a breach of duty happening on or after the day this Act receives assent— chapter 2 , part 4 sections 52 , 54 , 56 , 57 , 58 , 59 , 60 , 72 .\n(sec.4-ssec.5) Chapter 2 , part 5 applies only in relation to a breach of duty happening on or after the commencement of this subsection.\n(sec.4-ssec.6) Sections 64 , 65 , 66 , 67 and 73 apply in relation to personal injuries damages regardless of when the injury happened.\n- • chapter 2 , part 1 , divisions 1 to 6\n- • chapter 2 , part 3 , division 1\n- • section 55 .\n- • chapter 2 , part 4\n- • sections 52 , 54 , 56 , 57 , 58 , 59 , 60 , 72 .","sortOrder":5},{"sectionNumber":"sec.5","sectionType":"section","heading":"Civil liability excluded from Act","content":"### sec.5 Civil liability excluded from Act\n\nThis Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes—\nan injury for which compensation is payable under the WorkCover Queensland Act 1996 , other than an injury to which section 36 (1) (c) or 37 of that Act applies; or\nA worker employed under a contract of service with a labour hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996 , section 34 . This Act does not apply to any of the claims for damages.\nan injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 , other than an injury to which section 34 (1) (c) or 35 of that Act applies; or\nan injury that is a dust-related condition; or\nan injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.\nFor subsection (1) (a) or (b) , the following is immaterial—\nwhether compensation for the injury is actually claimed under the relevant Workers’ Compensation Act;\nwhether the entitlement to seek damages for the injury is regulated under that Act.\nDespite subsection (1) (c) and (d) , this Act applies for deciding awards of section 59A damages relating to an injury mentioned in subsection (1) (c) or (d) .\nTo remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.\nIn this section—\ncompensation for injury, under a relevant Workers’ Compensation Act, includes payment of—\nreasonable expenses for medical treatment or attendance; and\nfuneral expenses.\nrelevant Workers’ Compensation Act means—\nfor compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (a) —the WorkCover Queensland Act 1996 ; or\nfor compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (b) —the Workers’ Compensation and Rehabilitation Act 2003 .\ns 5 amd 2004 No. 43 s 22 ; 2007 No. 14 s 8 (retro); 2010 No. 9 s 4\n(sec.5-ssec.1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes— an injury for which compensation is payable under the WorkCover Queensland Act 1996 , other than an injury to which section 36 (1) (c) or 37 of that Act applies; or A worker employed under a contract of service with a labour hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996 , section 34 . This Act does not apply to any of the claims for damages. an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 , other than an injury to which section 34 (1) (c) or 35 of that Act applies; or an injury that is a dust-related condition; or an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.\n(sec.5-ssec.2) For subsection (1) (a) or (b) , the following is immaterial— whether compensation for the injury is actually claimed under the relevant Workers’ Compensation Act; whether the entitlement to seek damages for the injury is regulated under that Act.\n(sec.5-ssec.3) Despite subsection (1) (c) and (d) , this Act applies for deciding awards of section 59A damages relating to an injury mentioned in subsection (1) (c) or (d) .\n(sec.5-ssec.4) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.\n(sec.5-ssec.5) In this section— compensation for injury, under a relevant Workers’ Compensation Act, includes payment of— reasonable expenses for medical treatment or attendance; and funeral expenses. relevant Workers’ Compensation Act means— for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (a) —the WorkCover Queensland Act 1996 ; or for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (b) —the Workers’ Compensation and Rehabilitation Act 2003 .\n- (a) an injury for which compensation is payable under the WorkCover Queensland Act 1996 , other than an injury to which section 36 (1) (c) or 37 of that Act applies; or Example for paragraph (a) — A worker employed under a contract of service with a labour hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996 , section 34 . This Act does not apply to any of the claims for damages.\n- (b) an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 , other than an injury to which section 34 (1) (c) or 35 of that Act applies; or\n- (c) an injury that is a dust-related condition; or\n- (d) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.\n- (a) whether compensation for the injury is actually claimed under the relevant Workers’ Compensation Act;\n- (b) whether the entitlement to seek damages for the injury is regulated under that Act.\n- (a) reasonable expenses for medical treatment or attendance; and\n- (b) funeral expenses.\n- (a) for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (a) —the WorkCover Queensland Act 1996 ; or\n- (b) for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1) (b) —the Workers’ Compensation and Rehabilitation Act 2003 .","sortOrder":6},{"sectionNumber":"sec.6","sectionType":"section","heading":"Act binds all persons","content":"### sec.6 Act binds all persons\n\nThis Act binds all persons including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.","sortOrder":7},{"sectionNumber":"sec.7","sectionType":"section","heading":"Provisions relating to operation of Act","content":"### sec.7 Provisions relating to operation of Act\n\nSubject to sections 5 (3) and 59A , this Act does not create or confer any cause of civil action for the recovery of damages.\nA 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.\nSee, for example, the following provisions giving protection from civil liability to particular persons—\nthe Forestry Act 1959 , sections 96E , 96F and 96G\nthe Marine Parks Act 2004 , section 147\nthe Nature Conservation Act 1992 , section 142\nthe Recreation Areas Management Act 2006 , section 228 .\nThis Act, other than chapter 2 , part 2 and chapter 3 , does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract (the express provision ) in relation to any matter to which this Act applies and does not limit or otherwise affect the operation of the express provision.\nSubsection (3) extends to any provision of this Act even if the provision applies to liability in contract.\nThis Act is not a codification of the law relating to civil claims for damages for harm.\ns 7 amd 2004 No. 23 s 75 ; 2010 No. 9 s 5 ; 2013 No. 55 s 8\n(sec.7-ssec.1) Subject to sections 5 (3) and 59A , this Act does not create or confer any cause of civil action for the recovery of damages.\n(sec.7-ssec.2) 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. See, for example, the following provisions giving protection from civil liability to particular persons— the Forestry Act 1959 , sections 96E , 96F and 96G the Marine Parks Act 2004 , section 147 the Nature Conservation Act 1992 , section 142 the Recreation Areas Management Act 2006 , section 228 .\n(sec.7-ssec.3) This Act, other than chapter 2 , part 2 and chapter 3 , does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract (the express provision ) in relation to any matter to which this Act applies and does not limit or otherwise affect the operation of the express provision.\n(sec.7-ssec.4) Subsection (3) extends to any provision of this Act even if the provision applies to liability in contract.\n(sec.7-ssec.5) This Act is not a codification of the law relating to civil claims for damages for harm.\n- • the Forestry Act 1959 , sections 96E , 96F and 96G\n- • the Marine Parks Act 2004 , section 147\n- • the Nature Conservation Act 1992 , section 142\n- • the Recreation Areas Management Act 2006 , section 228 .","sortOrder":8},{"sectionNumber":"ch.1-pt.3","sectionType":"part","heading":"Interpretation","content":"# Interpretation","sortOrder":9},{"sectionNumber":"sec.8","sectionType":"section","heading":"Definitions","content":"### sec.8 Definitions\n\nThe dictionary in schedule 2 defines particular words used in this Act.","sortOrder":10},{"sectionNumber":"ch.2-pt.1","sectionType":"part","heading":"Breach of duty","content":"# Breach of duty","sortOrder":11},{"sectionNumber":"ch.2-pt.1-div.1","sectionType":"division","heading":"General standard of care","content":"## General standard of care","sortOrder":12},{"sectionNumber":"sec.9","sectionType":"section","heading":"General principles","content":"### sec.9 General principles\n\nA person does not breach a duty to take precautions against a risk of harm unless—\nthe risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and\nthe risk was not insignificant; and\nin the circumstances, a reasonable person in the position of the person would have taken the precautions.\nIn deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—\nthe probability that the harm would occur if care were not taken;\nthe likely seriousness of the harm;\nthe burden of taking precautions to avoid the risk of harm;\nthe social utility of the activity that creates the risk of harm.\n(sec.9-ssec.1) A person does not breach a duty to take precautions against a risk of harm unless— the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and the risk was not insignificant; and in the circumstances, a reasonable person in the position of the person would have taken the precautions.\n(sec.9-ssec.2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)— the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; the social utility of the activity that creates the risk of harm.\n- (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and\n- (b) the risk was not insignificant; and\n- (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.\n- (a) the probability that the harm would occur if care were not taken;\n- (b) the likely seriousness of the harm;\n- (c) the burden of taking precautions to avoid the risk of harm;\n- (d) the social utility of the activity that creates the risk of harm.","sortOrder":13},{"sectionNumber":"sec.10","sectionType":"section","heading":"Other principles","content":"### sec.10 Other principles\n\nIn a proceeding relating to liability for breach of duty happening on or after 2 December 2002—\nthe burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and\nthe fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and\nthe subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.\n- (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and\n- (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and\n- (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.","sortOrder":14},{"sectionNumber":"ch.2-pt.1-div.2","sectionType":"division","heading":"Causation","content":"## Causation","sortOrder":15},{"sectionNumber":"sec.11","sectionType":"section","heading":"General principles","content":"### sec.11 General principles\n\nA decision that a breach of duty caused particular harm comprises the following elements—\nthe breach of duty was a necessary condition of the occurrence of the harm ( factual causation );\nit is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ( scope of liability ).\nIn deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1) (a) —should be accepted as satisfying subsection (1) (a) , the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.\nIf it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—\nthe matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b) ; and\nany statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.\nFor the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.\n(sec.11-ssec.1) A decision that a breach of duty caused particular harm comprises the following elements— the breach of duty was a necessary condition of the occurrence of the harm ( factual causation ); it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ( scope of liability ).\n(sec.11-ssec.2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1) (a) —should be accepted as satisfying subsection (1) (a) , the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.\n(sec.11-ssec.3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach— the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b) ; and any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.\n(sec.11-ssec.4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.\n- (a) the breach of duty was a necessary condition of the occurrence of the harm ( factual causation );\n- (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ( scope of liability ).\n- (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b) ; and\n- (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.","sortOrder":16},{"sectionNumber":"sec.12","sectionType":"section","heading":"Onus of proof","content":"### sec.12 Onus of proof\n\nIn deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.","sortOrder":17},{"sectionNumber":"ch.2-pt.1-div.3","sectionType":"division","heading":"Assumption of risk","content":"## Assumption of risk","sortOrder":18},{"sectionNumber":"sec.13","sectionType":"section","heading":"Meaning of obvious risk","content":"### sec.13 Meaning of obvious risk\n\nFor this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.\nObvious risks include risks that are patent or a matter of common knowledge.\nA risk of something occurring can be an obvious risk even though it has a low probability of occurring.\nA risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.\nTo remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.\nA motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.\nA bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.\n(sec.13-ssec.1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.\n(sec.13-ssec.2) Obvious risks include risks that are patent or a matter of common knowledge.\n(sec.13-ssec.3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.\n(sec.13-ssec.4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.\n(sec.13-ssec.5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious. A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.\n- 1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.\n- 2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.","sortOrder":19},{"sectionNumber":"sec.14","sectionType":"section","heading":"Persons suffering harm presumed to be aware of obvious risks","content":"### sec.14 Persons suffering harm presumed to be aware of obvious risks\n\nIf, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.\n‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.\nFor this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.\n(sec.14-ssec.1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk. ‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.\n(sec.14-ssec.2) For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.","sortOrder":20},{"sectionNumber":"sec.15","sectionType":"section","heading":"No proactive duty to warn of obvious risk","content":"### sec.15 No proactive duty to warn of obvious risk\n\nA person ( defendant ) does not owe a duty to another person ( plaintiff ) to warn of an obvious risk to the plaintiff.\nSubsection (1) does not apply if—\nthe plaintiff has requested advice or information about the risk from the defendant; or\nthe defendant is required by a written law to warn the plaintiff of the risk; or\nthe defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.\nIn relation to paragraphs (a) and (b) , see section 21 for the duty of a doctor to warn of risk.\nSubsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.\nIn this section—\na professional has the same meaning as it has in division 5 .\n(sec.15-ssec.1) A person ( defendant ) does not owe a duty to another person ( plaintiff ) to warn of an obvious risk to the plaintiff.\n(sec.15-ssec.2) Subsection (1) does not apply if— the plaintiff has requested advice or information about the risk from the defendant; or the defendant is required by a written law to warn the plaintiff of the risk; or the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. In relation to paragraphs (a) and (b) , see section 21 for the duty of a doctor to warn of risk.\n(sec.15-ssec.3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.\n(sec.15-ssec.4) In this section— a professional has the same meaning as it has in division 5 .\n- (a) the plaintiff has requested advice or information about the risk from the defendant; or\n- (b) the defendant is required by a written law to warn the plaintiff of the risk; or\n- (c) the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.","sortOrder":21},{"sectionNumber":"sec.16","sectionType":"section","heading":"No liability for materialisation of inherent risk","content":"### sec.16 No liability for materialisation of inherent risk\n\nA person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.\nAn inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.\nThis section does not operate to exclude liability in connection with a duty to warn of a risk.\n(sec.16-ssec.1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.\n(sec.16-ssec.2) An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.\n(sec.16-ssec.3) This section does not operate to exclude liability in connection with a duty to warn of a risk.","sortOrder":22},{"sectionNumber":"ch.2-pt.1-div.4","sectionType":"division","heading":"Dangerous recreational activities","content":"## Dangerous recreational activities","sortOrder":23},{"sectionNumber":"sec.17","sectionType":"section","heading":"Application of div 4","content":"### sec.17 Application of div 4\n\nThis division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.\nThis division does not limit the operation of division 3 in relation to a recreational activity.\n(sec.17-ssec.1) This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.\n(sec.17-ssec.2) This division does not limit the operation of division 3 in relation to a recreational activity.","sortOrder":24},{"sectionNumber":"sec.18","sectionType":"section","heading":"Definitions for div 4","content":"### sec.18 Definitions for div 4\n\nIn this division—\ndangerous recreational activity means an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person.\nobvious risk has the same meaning as it has in division 3 .","sortOrder":25},{"sectionNumber":"sec.19","sectionType":"section","heading":"No liability for personal injury suffered from obvious risks of dangerous recreational activities","content":"### sec.19 No liability for personal injury suffered from obvious risks of dangerous recreational activities\n\nA person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.\nThis section applies whether or not the person suffering harm was aware of the risk.\n(sec.19-ssec.1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.\n(sec.19-ssec.2) This section applies whether or not the person suffering harm was aware of the risk.","sortOrder":26},{"sectionNumber":"ch.2-pt.1-div.5","sectionType":"division","heading":"Duty of professionals","content":"## Duty of professionals","sortOrder":27},{"sectionNumber":"sec.20","sectionType":"section","heading":"Definition for div 5","content":"### sec.20 Definition for div 5\n\nIn this division—\na professional means a person practising a profession.","sortOrder":28},{"sectionNumber":"sec.21","sectionType":"section","heading":"Proactive and reactive duty of doctor to warn of risk","content":"### sec.21 Proactive and reactive duty of doctor to warn of risk\n\nA doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk—\ninformation that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice;\ninformation that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.\nIn this section—\npatient , when used in a context of giving or being given information, includes a person who has the responsibility for making a decision about the medical treatment to be undergone by a patient if the patient is under a legal disability.\nthe responsibility a parent has for an infant child\ns 21 amd 2003 No. 77 s 40A\n(sec.21-ssec.1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk— information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.\n(sec.21-ssec.2) In this section— patient , when used in a context of giving or being given information, includes a person who has the responsibility for making a decision about the medical treatment to be undergone by a patient if the patient is under a legal disability. the responsibility a parent has for an infant child\n- (a) information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice;\n- (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.","sortOrder":29},{"sectionNumber":"sec.22","sectionType":"section","heading":"Standard of care for professionals","content":"### sec.22 Standard of care for professionals\n\nA professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.\nHowever, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.\nThe fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.\nPeer professional opinion does not have to be universally accepted to be considered widely accepted.\nThis section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.\n(sec.22-ssec.1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.\n(sec.22-ssec.2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.\n(sec.22-ssec.3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.\n(sec.22-ssec.4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.\n(sec.22-ssec.5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.","sortOrder":30},{"sectionNumber":"ch.2-pt.1-div.6","sectionType":"division","heading":"Contributory negligence","content":"## Contributory negligence","sortOrder":31},{"sectionNumber":"sec.23","sectionType":"section","heading":"Standard of care in relation to contributory negligence","content":"### sec.23 Standard of care in relation to contributory negligence\n\nThe principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.\nFor that purpose—\nthe standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and\nthe matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.\n(sec.23-ssec.1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.\n(sec.23-ssec.2) For that purpose— the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.\n- (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and\n- (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.","sortOrder":32},{"sectionNumber":"sec.24","sectionType":"section","heading":"Contributory negligence can defeat claim","content":"### sec.24 Contributory negligence can defeat claim\n\nIn deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.","sortOrder":33},{"sectionNumber":"ch.2-pt.1-div.7","sectionType":"division","heading":"Enhancement of public safety","content":"## Enhancement of public safety","sortOrder":34},{"sectionNumber":"sec.25","sectionType":"section","heading":"Definition for div 7","content":"### sec.25 Definition for div 7\n\nIn this division—\nperson in distress includes—\na person who is injured, apparently injured or at risk of injury; and\na person who is suffering, or apparently suffering, from an illness.\n- (a) a person who is injured, apparently injured or at risk of injury; and\n- (b) a person who is suffering, or apparently suffering, from an illness.","sortOrder":35},{"sectionNumber":"sec.26","sectionType":"section","heading":"Protection of persons performing duties for entities to enhance public safety","content":"### sec.26 Protection of persons performing duties for entities to enhance public safety\n\nCivil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—\nthe first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and\nthe first aid or other aid or assistance is given in circumstances of emergency; and\nthe act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.\nSubsection (1) does not limit or affect the Law Reform Act 1995 , part 5 .\n(sec.26-ssec.1) Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if— the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and the first aid or other aid or assistance is given in circumstances of emergency; and the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.\n(sec.26-ssec.2) Subsection (1) does not limit or affect the Law Reform Act 1995 , part 5 .\n- (a) the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and\n- (b) the first aid or other aid or assistance is given in circumstances of emergency; and\n- (c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.","sortOrder":36},{"sectionNumber":"sec.27","sectionType":"section","heading":"Protection of prescribed entities performing duties to enhance public safety","content":"### sec.27 Protection of prescribed entities performing duties to enhance public safety\n\nCivil liability does not attach to an entity, prescribed under a regulation, that provides services to enhance public safety in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—\nthe first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and\nthe first aid or other aid or assistance is given in circumstances of emergency; and\nthe act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.\nSubsection (1) does not limit or affect the Law Reform Act 1995 , part 5 .\n(sec.27-ssec.1) Civil liability does not attach to an entity, prescribed under a regulation, that provides services to enhance public safety in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if— the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and the first aid or other aid or assistance is given in circumstances of emergency; and the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.\n(sec.27-ssec.2) Subsection (1) does not limit or affect the Law Reform Act 1995 , part 5 .\n- (a) the first aid or other aid or assistance is given by the entity while performing duties to enhance public safety; and\n- (b) the first aid or other aid or assistance is given in circumstances of emergency; and\n- (c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.","sortOrder":37},{"sectionNumber":"ch.2-pt.2","sectionType":"part","heading":"Proportionate liability","content":"# Proportionate liability","sortOrder":38},{"sectionNumber":"sec.28","sectionType":"section","heading":"Application of pt 2","content":"### sec.28 Application of pt 2\n\nThis part applies to either or both of the following claims ( apportionable claim )—\na claim for economic loss or damage to property in an action for damages arising from a breach of a duty of care;\na claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1989 for a contravention of the Australian Consumer Law (Queensland), section 18 .\nFor this part, if more than 1 claim of a kind mentioned in subsection (1) (a) or (1) (b) or both provisions is based on the same loss or damage, the claims must be treated as a single apportionable claim.\nThis part does not apply to a claim—\narising out of personal injury; or\nby a consumer.\nAlso, this part does not apply to a claim to the extent that an Act provides that liability for an amount payable in relation to the claim is joint and several.\nA provision of this part that gives protection from civil liability does not limit or otherwise affect any protection from liability given by any other provision of this Act or by another Act or law.\ns 28 sub 2004 No. 23 s 76\namd 2010 No. 54 s 67 sch\n(sec.28-ssec.1) This part applies to either or both of the following claims ( apportionable claim )— a claim for economic loss or damage to property in an action for damages arising from a breach of a duty of care; a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1989 for a contravention of the Australian Consumer Law (Queensland), section 18 .\n(sec.28-ssec.2) For this part, if more than 1 claim of a kind mentioned in subsection (1) (a) or (1) (b) or both provisions is based on the same loss or damage, the claims must be treated as a single apportionable claim.\n(sec.28-ssec.3) This part does not apply to a claim— arising out of personal injury; or by a consumer.\n(sec.28-ssec.4) Also, this part does not apply to a claim to the extent that an Act provides that liability for an amount payable in relation to the claim is joint and several.\n(sec.28-ssec.5) A provision of this part that gives protection from civil liability does not limit or otherwise affect any protection from liability given by any other provision of this Act or by another Act or law.\n- (a) a claim for economic loss or damage to property in an action for damages arising from a breach of a duty of care;\n- (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1989 for a contravention of the Australian Consumer Law (Queensland), section 18 .\n- (a) arising out of personal injury; or\n- (b) by a consumer.","sortOrder":39},{"sectionNumber":"sec.29","sectionType":"section","heading":"Definitions for pt 2","content":"### sec.29 Definitions for pt 2\n\nIn this part—\napportionable claim see section 28 (1) .\nconsumer means an individual whose claim is based on rights relating to goods or services, or both, in circumstances where the particular goods or services—\nare being acquired for personal, domestic or household use or consumption; or\nrelate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.\ncourt , in relation to a claim for damages, means any court by or before which the claim falls to be decided.\ndefendant includes any person joined as a defendant or other party in the proceeding (except as a plaintiff) whether joined under this part, under rules of court or otherwise.\ns 29 sub 2004 No. 23 s 76\n- (a) are being acquired for personal, domestic or household use or consumption; or\n- (b) relate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.","sortOrder":40},{"sectionNumber":"sec.30","sectionType":"section","heading":"Who is a concurrent wrongdoer","content":"### sec.30 Who is a concurrent wrongdoer\n\nA concurrent wrongdoer, in relation to a claim, is a person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim.\nFor this part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.\ns 30 sub 2004 No. 23 s 76\n(sec.30-ssec.1) A concurrent wrongdoer, in relation to a claim, is a person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim.\n(sec.30-ssec.2) For this part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.","sortOrder":41},{"sectionNumber":"sec.31","sectionType":"section","heading":"Proportionate liability for apportionable claims","content":"### sec.31 Proportionate liability for apportionable claims\n\nIn any proceeding involving an apportionable claim—\nthe liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant’s responsibility for the loss or damage; and\njudgment must not be given against the defendant for more than that amount in relation to the claim.\nIf the proceeding involves both an apportionable claim and a claim that is not an apportionable claim—\nliability for the apportionable claim, to the extent it involves concurrent wrongdoers, is to be decided in accordance with this part; and\nliability for the other claim, and the apportionable claim to the extent it is not provided for under paragraph (a) , is to be decided in accordance with the legal rules, if any, that, apart from this part, are relevant.\nIn apportioning responsibility between defendants in a proceeding the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.\nThis section applies to a proceeding in relation to an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding.\ns 31 sub 2004 No. 23 s 76\n(sec.31-ssec.1) In any proceeding involving an apportionable claim— the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant’s responsibility for the loss or damage; and judgment must not be given against the defendant for more than that amount in relation to the claim.\n(sec.31-ssec.2) If the proceeding involves both an apportionable claim and a claim that is not an apportionable claim— liability for the apportionable claim, to the extent it involves concurrent wrongdoers, is to be decided in accordance with this part; and liability for the other claim, and the apportionable claim to the extent it is not provided for under paragraph (a) , is to be decided in accordance with the legal rules, if any, that, apart from this part, are relevant.\n(sec.31-ssec.3) In apportioning responsibility between defendants in a proceeding the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.\n(sec.31-ssec.4) This section applies to a proceeding in relation to an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding.\n- (a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant’s responsibility for the loss or damage; and\n- (b) judgment must not be given against the defendant for more than that amount in relation to the claim.\n- (a) liability for the apportionable claim, to the extent it involves concurrent wrongdoers, is to be decided in accordance with this part; and\n- (b) liability for the other claim, and the apportionable claim to the extent it is not provided for under paragraph (a) , is to be decided in accordance with the legal rules, if any, that, apart from this part, are relevant.","sortOrder":42},{"sectionNumber":"sec.32","sectionType":"section","heading":"Onus of parties to identify all relevant parties","content":"### sec.32 Onus of parties to identify all relevant parties\n\nA person ( claimant ) who makes a claim to which this part applies is to make the claim against all persons the claimant has reasonable grounds to believe may be liable for the loss or damage.\nA concurrent wrongdoer, in relation to a claim involving an apportionable claim, must give the claimant any information that the concurrent wrongdoer has—\nthat is likely to help the claimant to identify and locate any other person (not being a concurrent wrongdoer known to the claimant) who the concurrent wrongdoer has reasonable grounds to believe is also a concurrent wrongdoer in relation to the claim; and\nabout the circumstances that make the concurrent wrongdoer believe the other person is or may be a concurrent wrongdoer in relation to the claim.\nThe concurrent wrongdoer must give the information to the claimant, in writing, as soon as practicable after becoming aware of the claim being made or of the information, whichever is the later.\nIf the claimant fails to comply with the claimant’s obligations under this section, a court may, on a concurrent wrongdoer’s application, make orders as it considers just and equitable in the circumstances of the case on the following—\napportionment of damages proven to have been claimable;\ncosts thrown away as a result of the failure to comply.\nIf a concurrent wrongdoer fails to comply with the concurrent wrongdoer’s obligations under this section, a court may on application, if it considers it just and equitable to do so, make either or both of the following orders—\nan order that the concurrent wrongdoer is severally liable for any award of damages made;\nan order that the concurrent wrongdoer pay costs thrown away as a result of the failure to comply.\nHowever if, as a result of information given by a concurrent wrongdoer under subsection (2) , the claimant joins another party to the proceeding for the claim, and that party is found not to be liable to the claimant, the court may make orders about costs as it considers just and equitable in the circumstances of the case.\ns 32 sub 2004 No. 23 s 76\n(sec.32-ssec.1) A person ( claimant ) who makes a claim to which this part applies is to make the claim against all persons the claimant has reasonable grounds to believe may be liable for the loss or damage.\n(sec.32-ssec.2) A concurrent wrongdoer, in relation to a claim involving an apportionable claim, must give the claimant any information that the concurrent wrongdoer has— that is likely to help the claimant to identify and locate any other person (not being a concurrent wrongdoer known to the claimant) who the concurrent wrongdoer has reasonable grounds to believe is also a concurrent wrongdoer in relation to the claim; and about the circumstances that make the concurrent wrongdoer believe the other person is or may be a concurrent wrongdoer in relation to the claim.\n(sec.32-ssec.3) The concurrent wrongdoer must give the information to the claimant, in writing, as soon as practicable after becoming aware of the claim being made or of the information, whichever is the later.\n(sec.32-ssec.4) If the claimant fails to comply with the claimant’s obligations under this section, a court may, on a concurrent wrongdoer’s application, make orders as it considers just and equitable in the circumstances of the case on the following— apportionment of damages proven to have been claimable; costs thrown away as a result of the failure to comply.\n(sec.32-ssec.5) If a concurrent wrongdoer fails to comply with the concurrent wrongdoer’s obligations under this section, a court may on application, if it considers it just and equitable to do so, make either or both of the following orders— an order that the concurrent wrongdoer is severally liable for any award of damages made; an order that the concurrent wrongdoer pay costs thrown away as a result of the failure to comply.\n(sec.32-ssec.6) However if, as a result of information given by a concurrent wrongdoer under subsection (2) , the claimant joins another party to the proceeding for the claim, and that party is found not to be liable to the claimant, the court may make orders about costs as it considers just and equitable in the circumstances of the case.\n- (a) that is likely to help the claimant to identify and locate any other person (not being a concurrent wrongdoer known to the claimant) who the concurrent wrongdoer has reasonable grounds to believe is also a concurrent wrongdoer in relation to the claim; and\n- (b) about the circumstances that make the concurrent wrongdoer believe the other person is or may be a concurrent wrongdoer in relation to the claim.\n- (a) apportionment of damages proven to have been claimable;\n- (b) costs thrown away as a result of the failure to comply.\n- (a) an order that the concurrent wrongdoer is severally liable for any award of damages made;\n- (b) an order that the concurrent wrongdoer pay costs thrown away as a result of the failure to comply.","sortOrder":43},{"sectionNumber":"sec.32A","sectionType":"section","heading":"Contribution not recoverable from concurrent wrongdoer","content":"### sec.32A Contribution not recoverable from concurrent wrongdoer\n\nSubject to this part, a concurrent wrongdoer against whom judgment is given under this part in relation to an apportionable claim—\ncan not be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer for the apportionable claim, whether or not the damages are recovered or recoverable in the same proceeding in which the judgment is given; and\ncan not be required to indemnify the other concurrent wrongdoer.\ns 32A ins 2004 No. 23 s 76\n- (a) can not be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer for the apportionable claim, whether or not the damages are recovered or recoverable in the same proceeding in which the judgment is given; and\n- (b) can not be required to indemnify the other concurrent wrongdoer.","sortOrder":44},{"sectionNumber":"sec.32B","sectionType":"section","heading":"Subsequent actions","content":"### sec.32B Subsequent actions\n\nIn relation to an apportionable claim, nothing in this part prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage.\nHowever, in any proceeding in relation to the other action, the plaintiff can not recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in relation to the loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the plaintiff.\ns 32B ins 2004 No. 23 s 76\n(sec.32B-ssec.1) In relation to an apportionable claim, nothing in this part prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage.\n(sec.32B-ssec.2) However, in any proceeding in relation to the other action, the plaintiff can not recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in relation to the loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the plaintiff.","sortOrder":45},{"sectionNumber":"sec.32C","sectionType":"section","heading":"Joining non-party concurrent wrongdoer in the action","content":"### sec.32C Joining non-party concurrent wrongdoer in the action\n\nSubject to subsection (2) , the court may give leave for any 1 or more persons who are concurrent wrongdoers in relation to an apportionable claim to be joined as defendants in a proceeding in relation to that claim.\nThe court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim.\ns 32C ins 2004 No. 23 s 76\n(sec.32C-ssec.1) Subject to subsection (2) , the court may give leave for any 1 or more persons who are concurrent wrongdoers in relation to an apportionable claim to be joined as defendants in a proceeding in relation to that claim.\n(sec.32C-ssec.2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim.","sortOrder":46},{"sectionNumber":"sec.32D","sectionType":"section","heading":"What if a concurrent wrongdoer is fraudulent","content":"### sec.32D What if a concurrent wrongdoer is fraudulent\n\nDespite sections 31 and 32A , a concurrent wrongdoer in a proceeding in relation to an apportionable claim who is found liable for damages and against whom a finding of fraud is made is severally liable for the damages awarded against any other concurrent wrongdoer to the apportionable claim.\ns 32D ins 2004 No. 23 s 76","sortOrder":47},{"sectionNumber":"sec.32E","sectionType":"section","heading":"What if a concurrent wrongdoer intends to cause loss or damage","content":"### sec.32E What if a concurrent wrongdoer intends to cause loss or damage\n\nDespite sections 31 and 32A , a concurrent wrongdoer in a proceeding in relation to an apportionable claim who is found to have intended to cause the loss or damage suffered, and is found liable for damages, is severally liable for the damages awarded against any other concurrent wrongdoer to the apportionable claim.\ns 32E ins 2004 No. 23 s 76","sortOrder":48},{"sectionNumber":"sec.32F","sectionType":"section","heading":"What if a concurrent wrongdoer is proved to have engaged in misleading or deceptive conduct under the Fair Trading Act","content":"### sec.32F What if a concurrent wrongdoer is proved to have engaged in misleading or deceptive conduct under the Fair Trading Act\n\nDespite sections 31 and 32A , a concurrent wrongdoer in a proceeding in relation to an apportionable claim who contravenes the Australian Consumer Law (Queensland), section 18 is severally liable for the damages awarded against any other concurrent wrongdoer to the apportionable claim.\ns 32F ins 2004 No. 23 s 76\namd 2010 No. 54 s 67 sch","sortOrder":49},{"sectionNumber":"sec.32G","sectionType":"section","heading":"Liability for contributory negligence not affected","content":"### sec.32G Liability for contributory negligence not affected\n\nIn apportioning responsibility as between concurrent wrongdoers, the court is to exclude the proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law.\ns 32G ins 2004 No. 23 s 76","sortOrder":50},{"sectionNumber":"sec.32H","sectionType":"section","heading":"Concurrent wrongdoer may seek contribution from person not a party to the original proceeding","content":"### sec.32H Concurrent wrongdoer may seek contribution from person not a party to the original proceeding\n\nNothing in this part prevents a concurrent wrongdoer from seeking, in another proceeding, contribution from someone else in relation to the apportionable claim.\ns 32H ins 2004 No. 23 s 76","sortOrder":51},{"sectionNumber":"sec.32I","sectionType":"section","heading":"Part not to affect other liability","content":"### sec.32I Part not to affect other liability\n\nNothing in this part—\nprevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or\nprevents a person from being held jointly and severally liable for the damages awarded against another person as agent of the person; or\nprevents a partner from being held jointly and severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or\nprevents a court from awarding exemplary or punitive damages against a defendant in a proceeding.\ns 32I ins 2004 No. 23 s 76\n- (a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or\n- (b) prevents a person from being held jointly and severally liable for the damages awarded against another person as agent of the person; or\n- (c) prevents a partner from being held jointly and severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or\n- (d) prevents a court from awarding exemplary or punitive damages against a defendant in a proceeding.","sortOrder":52},{"sectionNumber":"sec.33","sectionType":"section","heading":"Court may give directions","content":"### sec.33 Court may give directions\n\nThis section applies for the purposes of this part in relation to a claim for damages.\nTo the extent a matter about the court’s procedure is not provided for by rules of court, the matter may be dealt with by a direction under subsection (3) .\nOn application by a party, the court may give directions about the way a matter not dealt with by the rules is to proceed.\ns 33 sub 2004 No. 23 s 76\n(sec.33-ssec.1) This section applies for the purposes of this part in relation to a claim for damages.\n(sec.33-ssec.2) To the extent a matter about the court’s procedure is not provided for by rules of court, the matter may be dealt with by a direction under subsection (3) .\n(sec.33-ssec.3) On application by a party, the court may give directions about the way a matter not dealt with by the rules is to proceed.","sortOrder":53},{"sectionNumber":"ch.2-pt.2A","sectionType":"part","heading":"Liability of institutions for child abuse","content":"# Liability of institutions for child abuse","sortOrder":54},{"sectionNumber":"ch.2-pt.2A-div.1","sectionType":"division","heading":"Preliminary","content":"## Preliminary","sortOrder":55},{"sectionNumber":"sec.33A","sectionType":"section","heading":"Definitions for part","content":"### sec.33A Definitions for part\n\nIn this part—\nabuse , of a child—\nfor division 2 —means sexual abuse or serious physical abuse of the child; or\notherwise, means—\nsexual abuse or serious physical abuse of the child; or\npsychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.\nabuse claim means a claim arising from the abuse of a child by a person associated with an institution while the child was under the care, supervision, control or authority of the institution.\nassociated trust , of an institution, see section 33B .\nassociated with , an institution, see section 33C .\ncurrent office holder see section 33G (2) .\nhead , of an institution, means the person who—\nis acknowledged by the institution as its head; or\nif paragraph (a) does not apply—has overall responsibility for the institution.\ninstitution —\nmeans an entity that provides an activity, program or service of a kind that gives an opportunity for a person to have contact with a child; and\nincludes a public sector unit that is an entity mentioned in paragraph (a) ; and\ndoes not include a family.\nnominee , for an institution, means a person who is the institution’s nominee because of a nomination or court order under section 33H .\noffice of authority , in an institution, includes—\na position as a member of a management committee of the institution; and\na position in which the holder is concerned with, or takes part in, the management of the institution.\ns 33A ins 2019 No. 34 s 4\n- (a) for division 2 —means sexual abuse or serious physical abuse of the child; or\n- (b) otherwise, means— (i) sexual abuse or serious physical abuse of the child; or (ii) psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.\n- (i) sexual abuse or serious physical abuse of the child; or\n- (ii) psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.\n- (i) sexual abuse or serious physical abuse of the child; or\n- (ii) psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.\n- (a) is acknowledged by the institution as its head; or\n- (b) if paragraph (a) does not apply—has overall responsibility for the institution.\n- (a) means an entity that provides an activity, program or service of a kind that gives an opportunity for a person to have contact with a child; and\n- (b) includes a public sector unit that is an entity mentioned in paragraph (a) ; and\n- (c) does not include a family.\n- (a) a position as a member of a management committee of the institution; and\n- (b) a position in which the holder is concerned with, or takes part in, the management of the institution.","sortOrder":56},{"sectionNumber":"sec.33B","sectionType":"section","heading":"Meaning of associated trust","content":"### sec.33B Meaning of associated trust\n\nFor this part, a trust is an associated trust of an institution if the institution uses the trust to carry out its functions or activities and—\nthe institution has, directly or indirectly, any of the following powers—\na power to control the application of income of the trust or the distribution of property of the trust;\na power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of another entity;\na power to appoint or remove a trustee or beneficiary of the trust;\na power to determine the outcome of any other decision about the trust’s operations; or\na member or manager of the institution has, under the trust deed for the trust, a power mentioned in paragraph (a) ; or\na trustee is accustomed to acting, or is under a formal or informal obligation to act, according to the directions, instructions or wishes of the institution or a member or manager of the institution.\nAlso, a reference in division 4 or 5 to an associated trust of an institution includes a trust in relation to which an order is in force under section 33H (6) (in relation to any abuse claim against the institution).\ns 33B ins 2019 No. 34 s 4\n(sec.33B-ssec.1) For this part, a trust is an associated trust of an institution if the institution uses the trust to carry out its functions or activities and— the institution has, directly or indirectly, any of the following powers— a power to control the application of income of the trust or the distribution of property of the trust; a power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of another entity; a power to appoint or remove a trustee or beneficiary of the trust; a power to determine the outcome of any other decision about the trust’s operations; or a member or manager of the institution has, under the trust deed for the trust, a power mentioned in paragraph (a) ; or a trustee is accustomed to acting, or is under a formal or informal obligation to act, according to the directions, instructions or wishes of the institution or a member or manager of the institution.\n(sec.33B-ssec.2) Also, a reference in division 4 or 5 to an associated trust of an institution includes a trust in relation to which an order is in force under section 33H (6) (in relation to any abuse claim against the institution).\n- (a) the institution has, directly or indirectly, any of the following powers— (i) a power to control the application of income of the trust or the distribution of property of the trust; (ii) a power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of another entity; (iii) a power to appoint or remove a trustee or beneficiary of the trust; (iv) a power to determine the outcome of any other decision about the trust’s operations; or\n- (i) a power to control the application of income of the trust or the distribution of property of the trust;\n- (ii) a power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of another entity;\n- (iii) a power to appoint or remove a trustee or beneficiary of the trust;\n- (iv) a power to determine the outcome of any other decision about the trust’s operations; or\n- (b) a member or manager of the institution has, under the trust deed for the trust, a power mentioned in paragraph (a) ; or\n- (c) a trustee is accustomed to acting, or is under a formal or informal obligation to act, according to the directions, instructions or wishes of the institution or a member or manager of the institution.\n- (i) a power to control the application of income of the trust or the distribution of property of the trust;\n- (ii) a power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of another entity;\n- (iii) a power to appoint or remove a trustee or beneficiary of the trust;\n- (iv) a power to determine the outcome of any other decision about the trust’s operations; or","sortOrder":57},{"sectionNumber":"sec.33C","sectionType":"section","heading":"When is a person associated with an institution","content":"### sec.33C When is a person associated with an institution\n\nFor this part, the persons associated with an institution include—\nan officer, office holder, representative, leader, owner, member, employee, agent, volunteer or contractor of the institution; and\nfor an institution that is a religious organisation—a minister of religion, religious leader or member of the personnel of the organisation; and\nif the institution has delegated the care, supervision, control or authority over a child to another entity (the delegate )—\nif the delegate is an individual—the delegate; and\na person who would be a person mentioned in paragraph (a) or (b) if the delegate were the delegating institution; and\na person prescribed by regulation.\nTo remove any doubt, it is declared that a person is not a delegate mentioned in subsection (1) (c) only because a child protection order is made granting long-term guardianship of a child to the person.\nA person is not associated with an institution only because the person is associated with an entity that is funded or regulated by the institution.\ns 33C ins 2019 No. 34 s 4\n(sec.33C-ssec.1) For this part, the persons associated with an institution include— an officer, office holder, representative, leader, owner, member, employee, agent, volunteer or contractor of the institution; and for an institution that is a religious organisation—a minister of religion, religious leader or member of the personnel of the organisation; and if the institution has delegated the care, supervision, control or authority over a child to another entity (the delegate )— if the delegate is an individual—the delegate; and a person who would be a person mentioned in paragraph (a) or (b) if the delegate were the delegating institution; and a person prescribed by regulation.\n(sec.33C-ssec.2) To remove any doubt, it is declared that a person is not a delegate mentioned in subsection (1) (c) only because a child protection order is made granting long-term guardianship of a child to the person.\n(sec.33C-ssec.3) A person is not associated with an institution only because the person is associated with an entity that is funded or regulated by the institution.\n- (a) an officer, office holder, representative, leader, owner, member, employee, agent, volunteer or contractor of the institution; and\n- (b) for an institution that is a religious organisation—a minister of religion, religious leader or member of the personnel of the organisation; and\n- (c) if the institution has delegated the care, supervision, control or authority over a child to another entity (the delegate )— (i) if the delegate is an individual—the delegate; and (ii) a person who would be a person mentioned in paragraph (a) or (b) if the delegate were the delegating institution; and\n- (i) if the delegate is an individual—the delegate; and\n- (ii) a person who would be a person mentioned in paragraph (a) or (b) if the delegate were the delegating institution; and\n- (d) a person prescribed by regulation.\n- (i) if the delegate is an individual—the delegate; and\n- (ii) a person who would be a person mentioned in paragraph (a) or (b) if the delegate were the delegating institution; and","sortOrder":58},{"sectionNumber":"ch.2-pt.2A-div.2","sectionType":"division","heading":"Duty of institutions","content":"## Duty of institutions","sortOrder":59},{"sectionNumber":"sec.33D","sectionType":"section","heading":"Duty to prevent child abuse","content":"### sec.33D Duty to prevent child abuse\n\nAn institution has a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of the institution.\ns 33D ins 2019 No. 34 s 4","sortOrder":60},{"sectionNumber":"sec.33E","sectionType":"section","heading":"Proof of whether duty was breached","content":"### sec.33E Proof of whether duty was breached\n\nThis section applies if a person associated with an institution abuses a child while the child is under the care, supervision, control or authority of the institution.\nThe institution is taken to have breached its duty under section 33D unless the institution proves it took all reasonable steps to prevent the abuse.\nIn deciding whether the institution took all reasonable steps to prevent the abuse, the matters that are relevant include—\nthe nature of the institution; and\nthe resources that were reasonably available to the institution; and\nthe relationship between the institution and the child; and\nthe position in which the institution placed the person in relation to the child, including the extent to which the position gave the person—\nauthority, power or control over the child; or\nan ability to achieve intimacy with the child or gain the child’s trust.\ns 33E ins 2019 No. 34 s 4\n(sec.33E-ssec.1) This section applies if a person associated with an institution abuses a child while the child is under the care, supervision, control or authority of the institution.\n(sec.33E-ssec.2) The institution is taken to have breached its duty under section 33D unless the institution proves it took all reasonable steps to prevent the abuse.\n(sec.33E-ssec.3) In deciding whether the institution took all reasonable steps to prevent the abuse, the matters that are relevant include— the nature of the institution; and the resources that were reasonably available to the institution; and the relationship between the institution and the child; and the position in which the institution placed the person in relation to the child, including the extent to which the position gave the person— authority, power or control over the child; or an ability to achieve intimacy with the child or gain the child’s trust.\n- (a) the nature of the institution; and\n- (b) the resources that were reasonably available to the institution; and\n- (c) the relationship between the institution and the child; and\n- (d) the position in which the institution placed the person in relation to the child, including the extent to which the position gave the person— (i) authority, power or control over the child; or (ii) an ability to achieve intimacy with the child or gain the child’s trust.\n- (i) authority, power or control over the child; or\n- (ii) an ability to achieve intimacy with the child or gain the child’s trust.\n- (i) authority, power or control over the child; or\n- (ii) an ability to achieve intimacy with the child or gain the child’s trust.","sortOrder":61},{"sectionNumber":"ch.2-pt.2A-div.3","sectionType":"division","heading":"Liability of particular institutions and office holders","content":"## Liability of particular institutions and office holders","sortOrder":62},{"sectionNumber":"sec.33F","sectionType":"section","heading":"Liability of incorporated institution that was unincorporated at time of abuse","content":"### sec.33F Liability of incorporated institution that was unincorporated at time of abuse\n\nThis section applies if—\na person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and\nthe claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and\nthe institution was an unincorporated body when the cause of action accrued; and\nthe institution is an incorporated body; and\nthe claimant is able to maintain an action on the cause of action, or would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\nA proceeding for the claimant’s cause of action may be started or continued against the institution.\nThe following apply for the purpose of a proceeding started or continued under subsection (2) —\nany liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the institution;\nanything done by the former office holder is taken to have been done by the institution;\na duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the institution;\nthe institution may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding;\nany right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the institution.\ns 33F ins 2019 No. 34 s 4\n(sec.33F-ssec.1) This section applies if— a person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and the claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and the institution was an unincorporated body when the cause of action accrued; and the institution is an incorporated body; and the claimant is able to maintain an action on the cause of action, or would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\n(sec.33F-ssec.2) A proceeding for the claimant’s cause of action may be started or continued against the institution.\n(sec.33F-ssec.3) The following apply for the purpose of a proceeding started or continued under subsection (2) — any liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the institution; anything done by the former office holder is taken to have been done by the institution; a duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the institution; the institution may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding; any right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the institution.\n- (a) a person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and\n- (b) the claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and\n- (c) the institution was an unincorporated body when the cause of action accrued; and\n- (d) the institution is an incorporated body; and\n- (e) the claimant is able to maintain an action on the cause of action, or would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\n- (a) any liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the institution;\n- (b) anything done by the former office holder is taken to have been done by the institution;\n- (c) a duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the institution;\n- (d) the institution may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding;\n- (e) any right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the institution.","sortOrder":63},{"sectionNumber":"sec.33G","sectionType":"section","heading":"Liability of current office holder of unincorporated institution","content":"### sec.33G Liability of current office holder of unincorporated institution\n\nThis section applies if—\na person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and\nthe claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and\nthe institution was an unincorporated body when the cause of action accrued; and\nthe institution is an unincorporated body; and\nthe former office holder no longer holds the relevant office; and\nthe claimant would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\nA proceeding for the claimant’s cause of action may be started or continued against the current holder of the relevant office (the current office holder ) in the name of the office.\nThe following apply for the purpose of a proceeding started or continued under subsection (2) —\nany liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the current office holder;\nanything done by the former office holder is taken to have been done by the current office holder;\na duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the current office holder;\nthe current office holder may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding;\nany right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the current office holder.\ns 33G ins 2019 No. 34 s 4\n(sec.33G-ssec.1) This section applies if— a person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and the claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and the institution was an unincorporated body when the cause of action accrued; and the institution is an unincorporated body; and the former office holder no longer holds the relevant office; and the claimant would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\n(sec.33G-ssec.2) A proceeding for the claimant’s cause of action may be started or continued against the current holder of the relevant office (the current office holder ) in the name of the office.\n(sec.33G-ssec.3) The following apply for the purpose of a proceeding started or continued under subsection (2) — any liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the current office holder; anything done by the former office holder is taken to have been done by the current office holder; a duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the current office holder; the current office holder may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding; any right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the current office holder.\n- (a) a person (the claimant ) suffered abuse as a child by a person associated with an institution (the associated person ) while the claimant was under the care, supervision, control or authority of the institution; and\n- (b) the claimant has or had a cause of action against a person (the former office holder ) who held an office of authority in the institution (the relevant office ) when the cause of action accrued, founded on the former office holder’s responsibility for the institution or for the associated person; and\n- (c) the institution was an unincorporated body when the cause of action accrued; and\n- (d) the institution is an unincorporated body; and\n- (e) the former office holder no longer holds the relevant office; and\n- (f) the claimant would be able to maintain an action on the cause of action if the former office holder still held the relevant office.\n- (a) any liability that the former office holder has or would have had in relation to the cause of action is taken to be a liability of the current office holder;\n- (b) anything done by the former office holder is taken to have been done by the current office holder;\n- (c) a duty or obligation that the former office holder would have had in relation to the proceeding is a duty or obligation of the current office holder;\n- (d) the current office holder may rely on any defence or immunity that would have been available to the former office holder as a defendant in the proceeding;\n- (e) any right of the former office holder to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the current office holder.","sortOrder":64},{"sectionNumber":"sec.33H","sectionType":"section","heading":"Claim against unincorporated institution and nomination of appropriate defendant","content":"### sec.33H Claim against unincorporated institution and nomination of appropriate defendant\n\nThis section applies in relation to an institution that is an unincorporated body.\nA proceeding for an abuse claim may be started against the institution.\nA notice of a claim required to be given to the institution under the Personal Injuries Proceedings Act 2002 , section 9 (1) must be given to the head of the institution.\nThe institution may nominate a person, with the person’s consent, to be the appropriate defendant for the purposes of an abuse claim against the institution.\nSubsection (6) applies if—\nat least 120 days have passed since a proceeding for an abuse claim was started against the institution; and\neither—\nthere is no nominee for the institution; or\na court is satisfied the institution’s nominee does not have sufficient assets to satisfy a liability that may be found under a decision on the abuse claim.\nOn application by the claimant, a court may order that the trustee of a trust is the institution’s nominee if the court is satisfied—\nthe trust is, or used to be, an associated trust of the institution; and\nfor a trust that is no longer an associated trust of the institution—a reason for causing the trust to cease to be an associated trust was to try to avoid trust property being applied to satisfy a liability that may be found under a decision on an abuse claim; and\nthe order would be appropriate.\nA court may—\norder the institution to do the following within 28 days or any other period the court considers appropriate—\nidentify to the court any trusts that are, or used to be, associated trusts of the institution;\nprovide particular information about the financial capacity of the trusts; and\nmake any other orders, and give the directions, it considers appropriate for the purpose of establishing—\nwhether a trust is, or used to be, an associated trust of the institution; or\nthe financial capacity of a trust mentioned in subparagraph (i) ; or\nwhether a nominee of the institution has sufficient assets to satisfy a liability that may be found under a decision on the abuse claim; or\nwhether it would be appropriate to make an order in relation to a trustee under subsection (6) .\ns 33H ins 2019 No. 34 s 4\n(sec.33H-ssec.1) This section applies in relation to an institution that is an unincorporated body.\n(sec.33H-ssec.2) A proceeding for an abuse claim may be started against the institution.\n(sec.33H-ssec.3) A notice of a claim required to be given to the institution under the Personal Injuries Proceedings Act 2002 , section 9 (1) must be given to the head of the institution.\n(sec.33H-ssec.4) The institution may nominate a person, with the person’s consent, to be the appropriate defendant for the purposes of an abuse claim against the institution.\n(sec.33H-ssec.5) Subsection (6) applies if— at least 120 days have passed since a proceeding for an abuse claim was started against the institution; and either— there is no nominee for the institution; or a court is satisfied the institution’s nominee does not have sufficient assets to satisfy a liability that may be found under a decision on the abuse claim.\n(sec.33H-ssec.6) On application by the claimant, a court may order that the trustee of a trust is the institution’s nominee if the court is satisfied— the trust is, or used to be, an associated trust of the institution; and for a trust that is no longer an associated trust of the institution—a reason for causing the trust to cease to be an associated trust was to try to avoid trust property being applied to satisfy a liability that may be found under a decision on an abuse claim; and the order would be appropriate.\n(sec.33H-ssec.7) A court may— order the institution to do the following within 28 days or any other period the court considers appropriate— identify to the court any trusts that are, or used to be, associated trusts of the institution; provide particular information about the financial capacity of the trusts; and make any other orders, and give the directions, it considers appropriate for the purpose of establishing— whether a trust is, or used to be, an associated trust of the institution; or the financial capacity of a trust mentioned in subparagraph (i) ; or whether a nominee of the institution has sufficient assets to satisfy a liability that may be found under a decision on the abuse claim; or whether it would be appropriate to make an order in relation to a trustee under subsection (6) .\n- (a) at least 120 days have passed since a proceeding for an abuse claim was started against the institution; and\n- (b) either— (i) there is no nominee for the institution; or (ii) a court is satisfied the institution’s nominee does not have sufficient assets to satisfy a liability that may be found under a decision on the abuse claim.\n- (i) there is no nominee for the institution; or\n- (ii) a court is satisfied the institution’s nominee does not have sufficient assets to satisfy a liability that may be found under a decision on the abuse claim.\n- (i) there is no nominee for the institution; or\n- (ii) a court is satisfied the institution’s nominee does not have sufficient assets to satisfy a liability that may be found under a decision on the abuse claim.\n- (a) the trust is, or used to be, an associated trust of the institution; and\n- (b) for a trust that is no longer an associated trust of the institution—a reason for causing the trust to cease to be an associated trust was to try to avoid trust property being applied to satisfy a liability that may be found under a decision on an abuse claim; and\n- (c) the order would be appropriate.\n- (a) order the institution to do the following within 28 days or any other period the court considers appropriate— (i) identify to the court any trusts that are, or used to be, associated trusts of the institution; (ii) provide particular information about the financial capacity of the trusts; and\n- (i) identify to the court any trusts that are, or used to be, associated trusts of the institution;\n- (ii) provide particular information about the financial capacity of the trusts; and\n- (b) make any other orders, and give the directions, it considers appropriate for the purpose of establishing— (i) whether a trust is, or used to be, an associated trust of the institution; or (ii) the financial capacity of a trust mentioned in subparagraph (i) ; or (iii) whether a nominee of the institution has sufficient assets to satisfy a liability that may be found under a decision on the abuse claim; or (iv) whether it would be appropriate to make an order in relation to a trustee under subsection (6) .\n- (i) whether a trust is, or used to be, an associated trust of the institution; or\n- (ii) the financial capacity of a trust mentioned in subparagraph (i) ; or\n- (iii) whether a nominee of the institution has sufficient assets to satisfy a liability that may be found under a decision on the abuse claim; or\n- (iv) whether it would be appropriate to make an order in relation to a trustee under subsection (6) .\n- (i) identify to the court any trusts that are, or used to be, associated trusts of the institution;\n- (ii) provide particular information about the financial capacity of the trusts; and\n- (i) whether a trust is, or used to be, an associated trust of the institution; or\n- (ii) the financial capacity of a trust mentioned in subparagraph (i) ; or\n- (iii) whether a nominee of the institution has sufficient assets to satisfy a liability that may be found under a decision on the abuse claim; or\n- (iv) whether it would be appropriate to make an order in relation to a trustee under subsection (6) .","sortOrder":65},{"sectionNumber":"sec.33I","sectionType":"section","heading":"Proceeding against nominee of unincorporated institution","content":"### sec.33I Proceeding against nominee of unincorporated institution\n\nThe following apply if, under section 33H , there is a nominee for an institution—\na proceeding for an abuse claim may be started or continued against the nominee;\nany liability of the institution under the court’s decision on the abuse claim is incurred by the nominee;\nanything done by the institution is taken to have been done by the nominee;\na duty or obligation of the institution in relation to the proceeding is a duty or obligation of the nominee;\nthe institution must continue to participate in the proceeding and a court may make an order or give a direction relating to the institution as if it were a person;\na court may make a substantive finding in the proceeding against the institution as if it were a person;\nthe nominee may rely on any defence or immunity that would be available to the institution as a defendant in the proceeding if the institution were a person;\nany right of the institution to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the nominee;\nif there is more than 1 nominee, the nominees must file a single defence and proceed as a single defendant.\ns 33I ins 2019 No. 34 s 4\n- (a) a proceeding for an abuse claim may be started or continued against the nominee;\n- (b) any liability of the institution under the court’s decision on the abuse claim is incurred by the nominee;\n- (c) anything done by the institution is taken to have been done by the nominee;\n- (d) a duty or obligation of the institution in relation to the proceeding is a duty or obligation of the nominee;\n- (e) the institution must continue to participate in the proceeding and a court may make an order or give a direction relating to the institution as if it were a person;\n- (f) a court may make a substantive finding in the proceeding against the institution as if it were a person;\n- (g) the nominee may rely on any defence or immunity that would be available to the institution as a defendant in the proceeding if the institution were a person;\n- (h) any right of the institution to be indemnified (including under an insurance policy) in respect of damages awarded in an abuse claim extends to, and indemnifies, the nominee;\n- (i) if there is more than 1 nominee, the nominees must file a single defence and proceed as a single defendant.","sortOrder":66},{"sectionNumber":"ch.2-pt.2A-div.4","sectionType":"division","heading":"Satisfaction of liability","content":"## Satisfaction of liability","sortOrder":67},{"sectionNumber":"sec.33J","sectionType":"section","heading":"Assets available to satisfy liability of institution","content":"### sec.33J Assets available to satisfy liability of institution\n\nThis section applies if an institution has a liability under a judgment in, or settlement of, an abuse claim.\nThe institution may satisfy the liability out of the assets of the institution and the assets of an associated trust of the institution.\ns 33J ins 2019 No. 34 s 4\n(sec.33J-ssec.1) This section applies if an institution has a liability under a judgment in, or settlement of, an abuse claim.\n(sec.33J-ssec.2) The institution may satisfy the liability out of the assets of the institution and the assets of an associated trust of the institution.","sortOrder":68},{"sectionNumber":"sec.33K","sectionType":"section","heading":"Assets available to satisfy liability of nominee","content":"### sec.33K Assets available to satisfy liability of nominee\n\nThis section applies if an institution’s nominee has a liability under a judgment in, or settlement of, an abuse claim.\nIf the nominee is the trustee of an associated trust of the institution, the nominee may satisfy the liability out of the assets of the trust and the assets of the institution.\nOtherwise, the nominee may satisfy the liability out of its assets and the assets of the institution.\ns 33K ins 2019 No. 34 s 4\n(sec.33K-ssec.1) This section applies if an institution’s nominee has a liability under a judgment in, or settlement of, an abuse claim.\n(sec.33K-ssec.2) If the nominee is the trustee of an associated trust of the institution, the nominee may satisfy the liability out of the assets of the trust and the assets of the institution.\n(sec.33K-ssec.3) Otherwise, the nominee may satisfy the liability out of its assets and the assets of the institution.","sortOrder":69},{"sectionNumber":"sec.33L","sectionType":"section","heading":"Assets available to satisfy liability of current office holder","content":"### sec.33L Assets available to satisfy liability of current office holder\n\nThis section applies if, under section 33G (3) , a current office holder has a liability under a judgment in, or settlement of, an abuse claim.\nThe current office holder is not personally liable but may satisfy the liability out of the assets of the institution and the assets of an associated trust of the institution.\ns 33L ins 2019 No. 34 s 4\n(sec.33L-ssec.1) This section applies if, under section 33G (3) , a current office holder has a liability under a judgment in, or settlement of, an abuse claim.\n(sec.33L-ssec.2) The current office holder is not personally liable but may satisfy the liability out of the assets of the institution and the assets of an associated trust of the institution.","sortOrder":70},{"sectionNumber":"sec.33M","sectionType":"section","heading":"Satisfaction of liability by trustee of associated trust","content":"### sec.33M Satisfaction of liability by trustee of associated trust\n\nThis section applies in relation to a liability that, under section 33J , 33K or 33L , may be satisfied out of the assets of an associated trust of an institution.\nThe trustee of the associated trust may pay an amount in satisfaction of the liability and, for that purpose, may realise assets of the trust.\nThe satisfaction of the liability is a proper expense for which the trustee may be indemnified out of the trust property, irrespective of any limitation on any right of indemnity the trustee may have.\nThe liability of the trustee of the associated trust as the institution’s nominee is limited to the value of the trust property.\nThe trustee is not liable for a breach of trust only because of doing anything authorised by this section.\ns 33M ins 2019 No. 34 s 4\n(sec.33M-ssec.1) This section applies in relation to a liability that, under section 33J , 33K or 33L , may be satisfied out of the assets of an associated trust of an institution.\n(sec.33M-ssec.2) The trustee of the associated trust may pay an amount in satisfaction of the liability and, for that purpose, may realise assets of the trust.\n(sec.33M-ssec.3) The satisfaction of the liability is a proper expense for which the trustee may be indemnified out of the trust property, irrespective of any limitation on any right of indemnity the trustee may have.\n(sec.33M-ssec.4) The liability of the trustee of the associated trust as the institution’s nominee is limited to the value of the trust property.\n(sec.33M-ssec.5) The trustee is not liable for a breach of trust only because of doing anything authorised by this section.","sortOrder":71},{"sectionNumber":"sec.33MA","sectionType":"section","heading":"References to liability","content":"### sec.33MA References to liability\n\nA reference in this division to a liability under a judgment in, or settlement of, an abuse claim includes any costs associated with a proceeding for the claim.\ns 33MA ins 2019 No. 34 s 4","sortOrder":72},{"sectionNumber":"ch.2-pt.2A-div.5","sectionType":"division","heading":"Miscellaneous","content":"## Miscellaneous","sortOrder":73},{"sectionNumber":"sec.33N","sectionType":"section","heading":"Entities may act despite other laws and duties","content":"### sec.33N Entities may act despite other laws and duties\n\nAn institution, an institution’s nominee, a current office holder or the trustee of an associated trust of an institution may act under division 4 , and the trustee of an associated trust of an institution may consent to being the institution’s nominee, despite—\nanother law; or\nthe terms of the associated trust (including a trust for a charitable purpose); or\na duty, whether as the current holder of an office in the institution or as trustee or otherwise.\ns 33N ins 2019 No. 34 s 4\n- (a) another law; or\n- (b) the terms of the associated trust (including a trust for a charitable purpose); or\n- (c) a duty, whether as the current holder of an office in the institution or as trustee or otherwise.","sortOrder":74},{"sectionNumber":"sec.33O","sectionType":"section","heading":"Continuity of institutions","content":"### sec.33O Continuity of institutions\n\nFor this part, an institution (the current institution ) is taken to be the same institution as the institution that breached its duty under section 33D or was an institution mentioned in section 33F (1) (a) or 33G (1) (a) (the old institution ) if it is substantially the same as it was when the relevant cause of action accrued, even if—\nits name has changed; or\nits organisational structure has changed; or\nit has become incorporated; or\nits functions or activities are carried out at a different place.\nWithout limiting subsection (1) , the current institution is taken to be substantially the same as it was when the relevant cause of action accrued if the type of member, and its primary purposes or functions, are substantially the same as they were at that time.\nIf there is no institution that is the same institution, or substantially the same institution, as the old institution, a relevant successor of the old institution is taken to be the same institution as the old institution.\nFor subsection (3) , an institution (also the current institution ) is a relevant successor of the old institution if—\nall or part of the old institution merged into the current institution; or\nall or part of the old institution merged with 1 or more other entities to form the current institution; or\nthe current institution is the remainder of the old institution after part of the old institution ceased to be part of the old institution; or\nin a case in which there is at least 1 institution interposed, over time, between the old institution and the current institution—at least 1 of the following circumstances applies to each link in the chain between the old institution and the current institution—\nall or part of an earlier institution merged into another institution;\nall or part of an earlier institution merged with 1 or more other entities to form another institution;\nan institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution;\nan institution as it is at a particular time is substantially the same as it was at an earlier time; or\nthe current institution is prescribed by regulation to be the relevant successor of the old institution.\nThe Minister may recommend to the Governor in Council the making of a regulation under subsection (4) (e) only if satisfied that—\nthe current institution has a relevant connection to the old institution; or\nthe head of the current institution has agreed to the current institution being the relevant successor of the old institution for this section.\ns 33O ins 2019 No. 34 s 4\n(sec.33O-ssec.1) For this part, an institution (the current institution ) is taken to be the same institution as the institution that breached its duty under section 33D or was an institution mentioned in section 33F (1) (a) or 33G (1) (a) (the old institution ) if it is substantially the same as it was when the relevant cause of action accrued, even if— its name has changed; or its organisational structure has changed; or it has become incorporated; or its functions or activities are carried out at a different place.\n(sec.33O-ssec.2) Without limiting subsection (1) , the current institution is taken to be substantially the same as it was when the relevant cause of action accrued if the type of member, and its primary purposes or functions, are substantially the same as they were at that time.\n(sec.33O-ssec.3) If there is no institution that is the same institution, or substantially the same institution, as the old institution, a relevant successor of the old institution is taken to be the same institution as the old institution.\n(sec.33O-ssec.4) For subsection (3) , an institution (also the current institution ) is a relevant successor of the old institution if— all or part of the old institution merged into the current institution; or all or part of the old institution merged with 1 or more other entities to form the current institution; or the current institution is the remainder of the old institution after part of the old institution ceased to be part of the old institution; or in a case in which there is at least 1 institution interposed, over time, between the old institution and the current institution—at least 1 of the following circumstances applies to each link in the chain between the old institution and the current institution— all or part of an earlier institution merged into another institution; all or part of an earlier institution merged with 1 or more other entities to form another institution; an institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution; an institution as it is at a particular time is substantially the same as it was at an earlier time; or the current institution is prescribed by regulation to be the relevant successor of the old institution.\n(sec.33O-ssec.5) The Minister may recommend to the Governor in Council the making of a regulation under subsection (4) (e) only if satisfied that— the current institution has a relevant connection to the old institution; or the head of the current institution has agreed to the current institution being the relevant successor of the old institution for this section.\n- (a) its name has changed; or\n- (b) its organisational structure has changed; or\n- (c) it has become incorporated; or\n- (d) its functions or activities are carried out at a different place.\n- (a) all or part of the old institution merged into the current institution; or\n- (b) all or part of the old institution merged with 1 or more other entities to form the current institution; or\n- (c) the current institution is the remainder of the old institution after part of the old institution ceased to be part of the old institution; or\n- (d) in a case in which there is at least 1 institution interposed, over time, between the old institution and the current institution—at least 1 of the following circumstances applies to each link in the chain between the old institution and the current institution— (i) all or part of an earlier institution merged into another institution; (ii) all or part of an earlier institution merged with 1 or more other entities to form another institution; (iii) an institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution; (iv) an institution as it is at a particular time is substantially the same as it was at an earlier time; or\n- (i) all or part of an earlier institution merged into another institution;\n- (ii) all or part of an earlier institution merged with 1 or more other entities to form another institution;\n- (iii) an institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution;\n- (iv) an institution as it is at a particular time is substantially the same as it was at an earlier time; or\n- (e) the current institution is prescribed by regulation to be the relevant successor of the old institution.\n- (i) all or part of an earlier institution merged into another institution;\n- (ii) all or part of an earlier institution merged with 1 or more other entities to form another institution;\n- (iii) an institution is the remainder of an earlier institution after part of the earlier institution ceased to be part of the earlier institution;\n- (iv) an institution as it is at a particular time is substantially the same as it was at an earlier time; or\n- (a) the current institution has a relevant connection to the old institution; or\n- (b) the head of the current institution has agreed to the current institution being the relevant successor of the old institution for this section.","sortOrder":75},{"sectionNumber":"sec.33P","sectionType":"section","heading":"Continuity of offices","content":"### sec.33P Continuity of offices\n\nThis section applies for the purpose of section 33G .\nIt is sufficient that an office in the institution is substantially the same as it was when the relevant cause of action accrued.\nIf there is no current office in the institution that is the same or substantially the same as the relevant office mentioned in section 33G (1) (b) , the current head of the institution is taken to be the current office holder.\ns 33P ins 2019 No. 34 s 4\n(sec.33P-ssec.1) This section applies for the purpose of section 33G .\n(sec.33P-ssec.2) It is sufficient that an office in the institution is substantially the same as it was when the relevant cause of action accrued.\n(sec.33P-ssec.3) If there is no current office in the institution that is the same or substantially the same as the relevant office mentioned in section 33G (1) (b) , the current head of the institution is taken to be the current office holder.","sortOrder":76},{"sectionNumber":"sec.33Q","sectionType":"section","heading":"Corporations Act displacement","content":"### sec.33Q Corporations Act displacement\n\nSections 33I to 33N are declared to be Corporations legislation displacement provisions for the Corporations Act , section 5G in relation to the Corporations legislation generally.\ns 33Q ins 2019 No. 34 s 4","sortOrder":77},{"sectionNumber":"ch.2-pt.3","sectionType":"part","heading":"Liability of public and other authorities and volunteers","content":"# Liability of public and other authorities and volunteers","sortOrder":78},{"sectionNumber":"ch.2-pt.3-div.1","sectionType":"division","heading":"Public and other authorities","content":"## Public and other authorities","sortOrder":79},{"sectionNumber":"sec.34","sectionType":"section","heading":"Definitions for div 1","content":"### sec.34 Definitions for div 1\n\nIn this division—\nfunction includes power.\npublic or other authority means—\nthe Crown (within the meaning of the Crown Proceedings Act 1980 ); or\na local government; or\nany public authority constituted under an Act.\n- (a) the Crown (within the meaning of the Crown Proceedings Act 1980 ); or\n- (b) a local government; or\n- (c) any public authority constituted under an Act.","sortOrder":80},{"sectionNumber":"sec.35","sectionType":"section","heading":"Principles concerning resources, responsibilities etc. of public or other authorities","content":"### sec.35 Principles concerning resources, responsibilities etc. of public or other authorities\n\nThe following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty—\nthe functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;\nthe general allocation of financial or other resources by the authority is not open to challenge;\nthe functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);\nthe authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.\n- (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;\n- (b) the general allocation of financial or other resources by the authority is not open to challenge;\n- (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);\n- (d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.","sortOrder":81},{"sectionNumber":"sec.36","sectionType":"section","heading":"Proceedings against public or other authorities based on breach of statutory duty","content":"### sec.36 Proceedings against public or other authorities based on breach of statutory duty\n\nThis section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.\nFor the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.\n(sec.36-ssec.1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.\n(sec.36-ssec.2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.","sortOrder":82},{"sectionNumber":"sec.37","sectionType":"section","heading":"Restriction on liability of public or other authorities with functions of road authorities","content":"### sec.37 Restriction on liability of public or other authorities with functions of road authorities\n\nA public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority—\nto repair a road or to keep a road in repair; or\nto inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.\nSubsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.\nIn this section—\nroad see the Transport Operations (Road Use Management) Act 1995 , schedule 4 .\nroad authority means the entity responsible for carrying out any road work.\n(sec.37-ssec.1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority— to repair a road or to keep a road in repair; or to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.\n(sec.37-ssec.2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.\n(sec.37-ssec.3) In this section— road see the Transport Operations (Road Use Management) Act 1995 , schedule 4 . road authority means the entity responsible for carrying out any road work.\n- (a) to repair a road or to keep a road in repair; or\n- (b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.","sortOrder":83},{"sectionNumber":"ch.2-pt.3-div.2","sectionType":"division","heading":"Food donors and volunteers","content":"## Food donors and volunteers","sortOrder":84},{"sectionNumber":"sec.38","sectionType":"section","heading":"Interpretation","content":"### sec.38 Interpretation\n\nIn this division—\ncommunity organisation means any of the following that organises the doing of community work by volunteers—\na corporation;\na trustee acting in the capacity of trustee;\na church or other religious group;\na registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth) ;\na public or other authority as defined under section 34 ;\na parents and citizens association formed under the Education (General Provisions) Act 2006 , chapter 7 ;\nanother entity prescribed under a regulation.\ns 38(1) def community organisation amd 2010 No. 9 s 6\ncommunity work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose.\ns 38(1) def community work amd 2004 No. 43 s 23 (1)\nfood donor —\nmeans an entity that, in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, donates or distributes food with the intention that the consumer of the food will not have to pay for the food; but\ndoes not include—\nan entity that directly distributes the food to the consumer of the food; or\na volunteer.\ns 38(1) def food donor ins 2008 No. 59 s 14 (1)\norganised includes directed or supervised.\npossession includes control.\ns 38(1) def possession ins 2008 No. 59 s 14 (1)\nvolunteer means an individual who—\ndoes community work on a voluntary basis; or\ndonates food in the circumstances mentioned in section 39 (3) .\ns 38(1) def volunteer sub 2004 No. 43 s 23 (2)\namd 2008 No. 59 s 14 (2)\nwork includes any activity.\nFor the purposes of this division—\ncommunity work done by a person under an order of a court is not to be regarded as work done on a voluntary basis; and\ncommunity work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work is to be regarded as work done on a voluntary basis.\n(sec.38-ssec.1) In this division— community organisation means any of the following that organises the doing of community work by volunteers— a corporation; a trustee acting in the capacity of trustee; a church or other religious group; a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth) ; a public or other authority as defined under section 34 ; a parents and citizens association formed under the Education (General Provisions) Act 2006 , chapter 7 ; another entity prescribed under a regulation. s 38(1) def community organisation amd 2010 No. 9 s 6 community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose. s 38(1) def community work amd 2004 No. 43 s 23 (1) food donor — means an entity that, in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, donates or distributes food with the intention that the consumer of the food will not have to pay for the food; but does not include— an entity that directly distributes the food to the consumer of the food; or a volunteer. s 38(1) def food donor ins 2008 No. 59 s 14 (1) organised includes directed or supervised. possession includes control. s 38(1) def possession ins 2008 No. 59 s 14 (1) volunteer means an individual who— does community work on a voluntary basis; or donates food in the circumstances mentioned in section 39 (3) . s 38(1) def volunteer sub 2004 No. 43 s 23 (2) amd 2008 No. 59 s 14 (2) work includes any activity.\n(sec.38-ssec.2) For the purposes of this division— community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis; and community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work is to be regarded as work done on a voluntary basis.\n- (a) a corporation;\n- (b) a trustee acting in the capacity of trustee;\n- (c) a church or other religious group;\n- (d) a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth) ;\n- (e) a public or other authority as defined under section 34 ;\n- (f) a parents and citizens association formed under the Education (General Provisions) Act 2006 , chapter 7 ;\n- (g) another entity prescribed under a regulation.\n- (a) means an entity that, in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, donates or distributes food with the intention that the consumer of the food will not have to pay for the food; but\n- (b) does not include— (i) an entity that directly distributes the food to the consumer of the food; or (ii) a volunteer.\n- (i) an entity that directly distributes the food to the consumer of the food; or\n- (ii) a volunteer.\n- (i) an entity that directly distributes the food to the consumer of the food; or\n- (ii) a volunteer.\n- (a) does community work on a voluntary basis; or\n- (b) donates food in the circumstances mentioned in section 39 (3) .\n- (a) community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis; and\n- (b) community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work is to be regarded as work done on a voluntary basis.","sortOrder":85},{"sectionNumber":"sec.38A","sectionType":"section","heading":"Protection of food donors","content":"### sec.38A Protection of food donors\n\nA food donor does not incur any civil liability in relation to any act or omission done or made by the food donor, when donating or distributing food in the circumstances mentioned in subsection (2) , giving rise to harm resulting from the consumption of the food.\nThe circumstances are—\nthat the food was safe to consume at the time it left the food donor’s possession; and\nif the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the food donor’s possession—that the food donor informed the recipient of the food of the handling requirements; and\nif the food only remained safe to consume for a particular period of time after it left the food donor’s possession—that the food donor informed the recipient of the food of the time limit.\nIn this section—\nrecipient , of the food, means the entity directly receiving the food from the food donor.\ns 38A ins 2008 No. 59 s 15\n(sec.38A-ssec.1) A food donor does not incur any civil liability in relation to any act or omission done or made by the food donor, when donating or distributing food in the circumstances mentioned in subsection (2) , giving rise to harm resulting from the consumption of the food.\n(sec.38A-ssec.2) The circumstances are— that the food was safe to consume at the time it left the food donor’s possession; and if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the food donor’s possession—that the food donor informed the recipient of the food of the handling requirements; and if the food only remained safe to consume for a particular period of time after it left the food donor’s possession—that the food donor informed the recipient of the food of the time limit.\n(sec.38A-ssec.3) In this section— recipient , of the food, means the entity directly receiving the food from the food donor.\n- (a) that the food was safe to consume at the time it left the food donor’s possession; and\n- (b) if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the food donor’s possession—that the food donor informed the recipient of the food of the handling requirements; and\n- (c) if the food only remained safe to consume for a particular period of time after it left the food donor’s possession—that the food donor informed the recipient of the food of the time limit.","sortOrder":86},{"sectionNumber":"sec.38B","sectionType":"section","heading":"Liability not excluded if insurance required","content":"### sec.38B Liability not excluded if insurance required\n\nThis subdivision does not confer protection from liability on a food donor if the liability is a liability that is required under a written law of the State to be insured against.\ns 38B ins 2008 No. 59 s 15","sortOrder":87},{"sectionNumber":"sec.38C","sectionType":"section","heading":"Liability not excluded for motor accidents","content":"### sec.38C Liability not excluded for motor accidents\n\nThe protection from liability conferred on a food donor by this subdivision does not apply if the liability would, apart from this subdivision, be covered by a CTP insurance policy under the Motor Accident Insurance Act 1994 , or be recoverable from the Nominal Defendant under that Act.\ns 38C ins 2008 No. 59 s 15","sortOrder":88},{"sectionNumber":"sec.39","sectionType":"section","heading":"Protection of volunteers","content":"### sec.39 Protection of volunteers\n\nA volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—\norganised by a community organisation; or\nas an office holder of a community organisation.\nA person does not incur any personal civil liability in relation to any act or omission done or made by the person, when donating food in the circumstances mentioned in subsection (3) , giving rise to harm resulting from the consumption of the food.\nThe circumstances are—\nthat the person donated the food to a community organisation—\nin good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and\nwith the intention that the consumer of the food would not have to pay for the food; and\nthat the food was safe to consume at the time it left the person’s possession; and\nif the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the person’s possession—that the person informed the community organisation of the handling requirements; and\nif the food only remained safe to consume for a particular period of time after it left the person’s possession—that the person informed the community organisation of the time limit.\ns 39 amd 2004 No. 43 s 24 ; 2008 No. 59 s 16\n(sec.39-ssec.1) A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work— organised by a community organisation; or as an office holder of a community organisation.\n(sec.39-ssec.2) A person does not incur any personal civil liability in relation to any act or omission done or made by the person, when donating food in the circumstances mentioned in subsection (3) , giving rise to harm resulting from the consumption of the food.\n(sec.39-ssec.3) The circumstances are— that the person donated the food to a community organisation— in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and with the intention that the consumer of the food would not have to pay for the food; and that the food was safe to consume at the time it left the person’s possession; and if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the person’s possession—that the person informed the community organisation of the handling requirements; and if the food only remained safe to consume for a particular period of time after it left the person’s possession—that the person informed the community organisation of the time limit.\n- (a) organised by a community organisation; or\n- (b) as an office holder of a community organisation.\n- (a) that the person donated the food to a community organisation— (i) in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and (ii) with the intention that the consumer of the food would not have to pay for the food; and\n- (i) in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and\n- (ii) with the intention that the consumer of the food would not have to pay for the food; and\n- (b) that the food was safe to consume at the time it left the person’s possession; and\n- (c) if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the person’s possession—that the person informed the community organisation of the handling requirements; and\n- (d) if the food only remained safe to consume for a particular period of time after it left the person’s possession—that the person informed the community organisation of the time limit.\n- (i) in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and\n- (ii) with the intention that the consumer of the food would not have to pay for the food; and","sortOrder":89},{"sectionNumber":"sec.40","sectionType":"section","heading":"Liability not excluded for criminal acts","content":"### sec.40 Liability not excluded for criminal acts\n\nThis subdivision does not confer protection from personal liability on a volunteer in relation to an act or omission of the volunteer if it is established (on the balance of probabilities) that at the time of the act or omission the volunteer was engaged in conduct that constitutes an offence.\ns 40 amd 2008 No. 59 s 12 sch","sortOrder":90},{"sectionNumber":"sec.41","sectionType":"section","heading":"Liability of intoxicated volunteer not excluded","content":"### sec.41 Liability of intoxicated volunteer not excluded\n\nThe protection from personal liability conferred on a volunteer by this subdivision in connection with any community work does not apply if the volunteer—\nwas intoxicated when doing the work; and\nfailed to exercise due care and skill when doing the work.\ns 41 amd 2008 No. 59 s 12 sch\n- (a) was intoxicated when doing the work; and\n- (b) failed to exercise due care and skill when doing the work.","sortOrder":91},{"sectionNumber":"sec.42","sectionType":"section","heading":"Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions","content":"### sec.42 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions\n\nThis subdivision does not confer protection on a volunteer from personal liability in relation to an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting—\noutside the scope of the activities authorised by the community organisation concerned; or\ncontrary to instructions given by the community organisation.\ns 42 amd 2008 No. 59 s 12 sch\n- (a) outside the scope of the activities authorised by the community organisation concerned; or\n- (b) contrary to instructions given by the community organisation.","sortOrder":92},{"sectionNumber":"sec.43","sectionType":"section","heading":"Liability not excluded if insurance required","content":"### sec.43 Liability not excluded if insurance required\n\nThis subdivision does not confer protection from personal liability on a volunteer if the liability is a liability that the volunteer is required under a written law of the State to be insured against.\ns 43 amd 2008 No. 59 s 12 sch ; 2010 No. 9 s 7","sortOrder":93},{"sectionNumber":"sec.44","sectionType":"section","heading":"Liability not excluded for motor accidents","content":"### sec.44 Liability not excluded for motor accidents\n\nThe protection from personal liability conferred on a volunteer by this subdivision does not apply if the liability would, apart from this subdivision, be covered by a CTP insurance policy under the Motor Accident Insurance Act 1994 , or be recoverable from the Nominal Defendant under that Act.\ns 44 amd 2008 No. 59 s 12 sch","sortOrder":94},{"sectionNumber":"ch.2-pt.4","sectionType":"part","heading":"Exclusion from claiming damages because of particular behaviour","content":"# Exclusion from claiming damages because of particular behaviour","sortOrder":95},{"sectionNumber":"ch.2-pt.4-div.1","sectionType":"division","heading":"Criminal behaviour","content":"## Criminal behaviour","sortOrder":96},{"sectionNumber":"sec.45","sectionType":"section","heading":"Criminals not to be awarded damages","content":"### sec.45 Criminals not to be awarded damages\n\nA person does not incur civil liability if the court is satisfied on the balance of probabilities that—\nthe breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and\nthe person’s conduct contributed materially to the risk of the harm.\nDespite subsection (1) , the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.\nIf the court decides to award damages under subsection (2) , the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\nIt does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.\nIf the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.\n(sec.45-ssec.1) A person does not incur civil liability if the court is satisfied on the balance of probabilities that— the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and the person’s conduct contributed materially to the risk of the harm.\n(sec.45-ssec.2) Despite subsection (1) , the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.\n(sec.45-ssec.3) If the court decides to award damages under subsection (2) , the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\n(sec.45-ssec.4) It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.\n(sec.45-ssec.5) If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.\n- (a) the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and\n- (b) the person’s conduct contributed materially to the risk of the harm.","sortOrder":97},{"sectionNumber":"ch.2-pt.4-div.2","sectionType":"division","heading":"Intoxication","content":"## Intoxication","sortOrder":98},{"sectionNumber":"sec.46","sectionType":"section","heading":"Effect of intoxication on duty and standard of care","content":"### sec.46 Effect of intoxication on duty and standard of care\n\nThe following principles apply in relation to the effect that a person’s intoxication has on the duty and standard of care that the person is owed—\nin deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated;\na person is not owed a duty of care merely because the person is intoxicated;\nthe fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.\nSubsection (1) does not affect a liability arising out of conduct happening on licensed premises.\nIn this section—\nlicensed premises see the Liquor Act 1992 , section 4 .\n(sec.46-ssec.1) The following principles apply in relation to the effect that a person’s intoxication has on the duty and standard of care that the person is owed— in deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated; a person is not owed a duty of care merely because the person is intoxicated; the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.\n(sec.46-ssec.2) Subsection (1) does not affect a liability arising out of conduct happening on licensed premises.\n(sec.46-ssec.3) In this section— licensed premises see the Liquor Act 1992 , section 4 .\n- (a) in deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated;\n- (b) a person is not owed a duty of care merely because the person is intoxicated;\n- (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.","sortOrder":99},{"sectionNumber":"sec.47","sectionType":"section","heading":"Presumption of contributory negligence if person who suffers harm is intoxicated","content":"### sec.47 Presumption of contributory negligence if person who suffers harm is intoxicated\n\nThis section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.\nContributory negligence will, subject to this section, be presumed.\nThe person may only rebut the presumption by establishing on the balance of probabilities—\nthat the intoxication did not contribute to the breach of duty; or\nthat the intoxication was not self-induced.\nUnless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\nIf, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes—\nthat the concentration of alcohol in the driver’s blood was 150mg or more of alcohol in 100mL of blood; or\nthat the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;\nthe minimum reduction prescribed by subsection (4) is increased to 50%.\n(sec.47-ssec.1) This section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.\n(sec.47-ssec.2) Contributory negligence will, subject to this section, be presumed.\n(sec.47-ssec.3) The person may only rebut the presumption by establishing on the balance of probabilities— that the intoxication did not contribute to the breach of duty; or that the intoxication was not self-induced.\n(sec.47-ssec.4) Unless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\n(sec.47-ssec.5) If, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes— that the concentration of alcohol in the driver’s blood was 150mg or more of alcohol in 100mL of blood; or that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by subsection (4) is increased to 50%.\n- (a) that the intoxication did not contribute to the breach of duty; or\n- (b) that the intoxication was not self-induced.\n- (a) that the concentration of alcohol in the driver’s blood was 150mg or more of alcohol in 100mL of blood; or\n- (b) that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;","sortOrder":100},{"sectionNumber":"sec.48","sectionType":"section","heading":"Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated","content":"### sec.48 Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated\n\nThis section applies to a person who suffered harm ( plaintiff ) who—\nwas at least 16 years at the time of the breach of duty giving rise to the harm; and\nrelied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and\nwas aware, or ought reasonably to have been aware, that the defendant was intoxicated.\nIf the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.\nThe plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that—\nthe defendant’s intoxication did not contribute to the breach of duty; or\nthe plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.\nUnless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\nThe common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.\n‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.\n(sec.48-ssec.1) This section applies to a person who suffered harm ( plaintiff ) who— was at least 16 years at the time of the breach of duty giving rise to the harm; and relied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and was aware, or ought reasonably to have been aware, that the defendant was intoxicated.\n(sec.48-ssec.2) If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.\n(sec.48-ssec.3) The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that— the defendant’s intoxication did not contribute to the breach of duty; or the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.\n(sec.48-ssec.4) Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.\n(sec.48-ssec.5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies. ‘Voluntary assumption of risk’ is sometimes stated as ‘volenti non fit injuria’.\n- (a) was at least 16 years at the time of the breach of duty giving rise to the harm; and\n- (b) relied on the care and skill of a person who was intoxicated at the time of the breach of duty ( defendant ); and\n- (c) was aware, or ought reasonably to have been aware, that the defendant was intoxicated.\n- (a) the defendant’s intoxication did not contribute to the breach of duty; or\n- (b) the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.","sortOrder":101},{"sectionNumber":"sec.49","sectionType":"section","heading":"Additional presumption for motor vehicle accident","content":"### sec.49 Additional presumption for motor vehicle accident\n\nThis section applies to a plaintiff and defendant mentioned in section 48 .\nIf—\nthe breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and\nthe plaintiff was a passenger in the motor vehicle; and\nthe motor vehicle was driven by the defendant; and\neither—\nthe concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or\nthe defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;\nthe minimum reduction prescribed by section 48 (4) is increased to 50%.\nThe plaintiff is taken, for this section, to rely on the care and skill of the defendant.\n(sec.49-ssec.1) This section applies to a plaintiff and defendant mentioned in section 48 .\n(sec.49-ssec.2) If— the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and the plaintiff was a passenger in the motor vehicle; and the motor vehicle was driven by the defendant; and either— the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by section 48 (4) is increased to 50%.\n(sec.49-ssec.3) The plaintiff is taken, for this section, to rely on the care and skill of the defendant.\n- (a) the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and\n- (b) the plaintiff was a passenger in the motor vehicle; and\n- (c) the motor vehicle was driven by the defendant; and\n- (d) either— (i) the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or (ii) the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;\n- (i) the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or\n- (ii) the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;\n- (i) the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or\n- (ii) the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;","sortOrder":102},{"sectionNumber":"ch.2-pt.5","sectionType":"part","heading":"Awards for economic loss following sterilisation procedure or contraceptive procedure or advice","content":"# Awards for economic loss following sterilisation procedure or contraceptive procedure or advice","sortOrder":103},{"sectionNumber":"sec.49A","sectionType":"section","heading":"Failed sterilisation procedures","content":"### sec.49A Failed sterilisation procedures\n\nThis section applies if, following a procedure to effect the sterilisation of an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure.\ntubal ligation and vasectomy\nA court can not award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.\ns 49A ins 2003 No. 77 s 41\n(sec.49A-ssec.1) This section applies if, following a procedure to effect the sterilisation of an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure. tubal ligation and vasectomy\n(sec.49A-ssec.2) A court can not award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.","sortOrder":104},{"sectionNumber":"sec.49B","sectionType":"section","heading":"Failed contraceptive procedure or contraceptive advice","content":"### sec.49B Failed contraceptive procedure or contraceptive advice\n\nThis section applies if, following a contraceptive procedure on an individual or the giving of contraceptive advice to an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure or giving the advice.\nA court can not award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.\ns 49B ins 2003 No. 77 s 41\n(sec.49B-ssec.1) This section applies if, following a contraceptive procedure on an individual or the giving of contraceptive advice to an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure or giving the advice.\n(sec.49B-ssec.2) A court can not award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.","sortOrder":105},{"sectionNumber":"ch.3-pt.1","sectionType":"part","heading":"Preliminary","content":"# Preliminary","sortOrder":106},{"sectionNumber":"sec.50","sectionType":"section","heading":"Application of ch 3","content":"### sec.50 Application of ch 3\n\nSubject to section 5 , this chapter applies only in relation to an award of personal injury damages.","sortOrder":107},{"sectionNumber":"sec.51","sectionType":"section","heading":"Definitions for ch 3","content":"### sec.51 Definitions for ch 3\n\nIn this chapter—\ngeneral damages means damages for—\npain and suffering; or\nloss of amenities of life; or\nloss of expectation of life; or\ndisfigurement.\ninjury means personal injury.\n- (a) pain and suffering; or\n- (b) loss of amenities of life; or\n- (c) loss of expectation of life; or\n- (d) disfigurement.","sortOrder":108},{"sectionNumber":"ch.3-pt.2","sectionType":"part","heading":"Exemplary and similar damages","content":"# Exemplary and similar damages","sortOrder":109},{"sectionNumber":"sec.52","sectionType":"section","heading":"Exemplary, punitive or aggravated damages can not be awarded              ","content":"### sec.52 Exemplary, punitive or aggravated damages can not be awarded              \n\nA court can not award exemplary, punitive or aggravated damages in relation to a claim for personal injury damages.\nSubsection (1) does not apply to a claim for personal injury damages if the act that caused the personal injury was—\nan unlawful intentional act done with intent to cause personal injury; or\nan unlawful sexual assault or other unlawful sexual misconduct.\n(sec.52-ssec.1) A court can not award exemplary, punitive or aggravated damages in relation to a claim for personal injury damages.\n(sec.52-ssec.2) Subsection (1) does not apply to a claim for personal injury damages if the act that caused the personal injury was— an unlawful intentional act done with intent to cause personal injury; or an unlawful sexual assault or other unlawful sexual misconduct.\n- (a) an unlawful intentional act done with intent to cause personal injury; or\n- (b) an unlawful sexual assault or other unlawful sexual misconduct.","sortOrder":110},{"sectionNumber":"ch.3-pt.2A","sectionType":"part","heading":"Participants in national injury insurance scheme, Queensland","content":"# Participants in national injury insurance scheme, Queensland","sortOrder":111},{"sectionNumber":"sec.52A","sectionType":"section","heading":"Definitions for part","content":"### sec.52A Definitions for part\n\nIn this part—\ninsurance agency means the National Injury Insurance Agency, Queensland established under the National Injury Act .\ninsurance scheme means the national injury insurance scheme, Queensland established under the National Injury Act , chapter 2 .\nmotor accident see the National Injury Act , section 4 (1) (b) .\nNational Injury Act means the National Injury Insurance Scheme (Queensland) Act 2016 .\nserious personal injury see the National Injury Act , schedule 1 .\ns 52A ins 2016 No. 34 s 149","sortOrder":112},{"sectionNumber":"sec.52B","sectionType":"section","heading":"Restriction on damages for participants in insurance scheme","content":"### sec.52B Restriction on damages for participants in insurance scheme\n\nThis section applies to the awarding of damages for personal injury resulting from a motor accident if the person suffering the injury is, or was, a participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident.\nA court can not award damages in relation to the person’s treatment, care and support needs that—\nresult from the personal injury; and\narise, or arose, while the person is, or was, a participant in the insurance scheme.\nThis section applies—\nwhether or not the personal injury is a serious personal injury; and\nwhether or not the treatment, care and support needs are an approved service for the person under the National Injury Act ; and\nwhether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and\nwhether or not the treatment, care and support is provided without charge.\nAlso, this section applies subject to section 52C .\nIn this section—\nparticipant , in the insurance scheme, see the National Injury Act , section 14 (1) .\ntreatment, care and support needs see the National Injury Act , section 8 .\ns 52B ins 2016 No. 34 s 149\n(sec.52B-ssec.1) This section applies to the awarding of damages for personal injury resulting from a motor accident if the person suffering the injury is, or was, a participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident.\n(sec.52B-ssec.2) A court can not award damages in relation to the person’s treatment, care and support needs that— result from the personal injury; and arise, or arose, while the person is, or was, a participant in the insurance scheme.\n(sec.52B-ssec.3) This section applies— whether or not the personal injury is a serious personal injury; and whether or not the treatment, care and support needs are an approved service for the person under the National Injury Act ; and whether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and whether or not the treatment, care and support is provided without charge.\n(sec.52B-ssec.4) Also, this section applies subject to section 52C .\n(sec.52B-ssec.5) In this section— participant , in the insurance scheme, see the National Injury Act , section 14 (1) . treatment, care and support needs see the National Injury Act , section 8 .\n- (a) result from the personal injury; and\n- (b) arise, or arose, while the person is, or was, a participant in the insurance scheme.\n- (a) whether or not the personal injury is a serious personal injury; and\n- (b) whether or not the treatment, care and support needs are an approved service for the person under the National Injury Act ; and\n- (c) whether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and\n- (d) whether or not the treatment, care and support is provided without charge.","sortOrder":113},{"sectionNumber":"sec.52C","sectionType":"section","heading":"Damages if insurance agency is liable to contribute","content":"### sec.52C Damages if insurance agency is liable to contribute\n\nThis section applies to a claim for personal injury damages against an insurer under the Motor Accident Insurance Act 1994 if—\nthe personal injury resulted from a motor accident; and\nthe person suffering the personal injury is a lifetime participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident; and\na court decides—\nthe person is not guilty of contributory negligence in relation to the claim; or\nthe person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and\nthe insurance agency is liable, under the National Injury Act , section 42 , to contribute towards the insurer’s liability on the claim for treatment, care and support damages.\nThe court may award treatment, care and support damages.\nHowever, if the court awards treatment, care and support damages, the court must not, in assessing the amount of the treatment, care and support damages, take into account any contributory negligence of the person.\nIn this section—\nlifetime participant see the National Injury Act , section 14 (2) .\ntreatment, care and support damages see the National Injury Act , schedule 1 .\ns 52C ins 2016 No. 34 s 149\n(sec.52C-ssec.1) This section applies to a claim for personal injury damages against an insurer under the Motor Accident Insurance Act 1994 if— the personal injury resulted from a motor accident; and the person suffering the personal injury is a lifetime participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident; and a court decides— the person is not guilty of contributory negligence in relation to the claim; or the person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and the insurance agency is liable, under the National Injury Act , section 42 , to contribute towards the insurer’s liability on the claim for treatment, care and support damages.\n(sec.52C-ssec.2) The court may award treatment, care and support damages.\n(sec.52C-ssec.3) However, if the court awards treatment, care and support damages, the court must not, in assessing the amount of the treatment, care and support damages, take into account any contributory negligence of the person.\n(sec.52C-ssec.4) In this section— lifetime participant see the National Injury Act , section 14 (2) . treatment, care and support damages see the National Injury Act , schedule 1 .\n- (a) the personal injury resulted from a motor accident; and\n- (b) the person suffering the personal injury is a lifetime participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident; and\n- (c) a court decides— (i) the person is not guilty of contributory negligence in relation to the claim; or (ii) the person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and\n- (i) the person is not guilty of contributory negligence in relation to the claim; or\n- (ii) the person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and\n- (d) the insurance agency is liable, under the National Injury Act , section 42 , to contribute towards the insurer’s liability on the claim for treatment, care and support damages.\n- (i) the person is not guilty of contributory negligence in relation to the claim; or\n- (ii) the person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and","sortOrder":114},{"sectionNumber":"ch.3-pt.3","sectionType":"part","heading":"Assessment of damages","content":"# Assessment of damages","sortOrder":115},{"sectionNumber":"sec.53","sectionType":"section","heading":"Notice requiring mitigation of damages","content":"### sec.53 Notice requiring mitigation of damages\n\nIf a defendant is not satisfied with the action taken by a plaintiff to mitigate damages, the defendant may give the plaintiff written notice suggesting specified action the plaintiff should take to mitigate damages.\nThe notice may, for example, suggest that—\nthe plaintiff should undergo medical treatment of a specified kind; or\nthe plaintiff should return to work or take specified steps to obtain employment; or\nthe plaintiff should undergo rehabilitation therapy of a specified kind, or undertake specified programs of rehabilitation and training.\nSubsection (1) does not limit the plaintiff’s duty to mitigate damages.\nIn assessing damages for personal injury, the court must—\nconsider whether the plaintiff has failed to take reasonable steps to mitigate damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002 , section 26 ; and\nif the notice suggested that the plaintiff undergo medical treatment or rehabilitation therapy of a specified kind—consider whether the notice was accompanied by an offer by the defendant to pay for the cost of the treatment or therapy; and\nif it appears the plaintiff has failed to take steps to mitigate damages by not following the suggestions—reduce the plaintiff’s damages to an appropriate extent reflecting the failure if, in all the circumstances, the court considers that the plaintiff’s failure to follow the suggestions was not reasonable.\nSubsection (4) does not apply in assessing damages for personal injury if leave to start the proceeding was given under the Personal Injuries Proceedings Act 2002 , section 43 (1) and was not stayed under section 43 (3) of that Act because section 43 (4) of that Act applied.\nIn this section—\ndefendant means a person against whom a claim for personal injury damages is made whether or not a proceeding for the claim has been started.\nplaintiff means an injured person making a claim for personal injury damages whether or not a proceeding for the claim has been started.\n(sec.53-ssec.1) If a defendant is not satisfied with the action taken by a plaintiff to mitigate damages, the defendant may give the plaintiff written notice suggesting specified action the plaintiff should take to mitigate damages.\n(sec.53-ssec.2) The notice may, for example, suggest that— the plaintiff should undergo medical treatment of a specified kind; or the plaintiff should return to work or take specified steps to obtain employment; or the plaintiff should undergo rehabilitation therapy of a specified kind, or undertake specified programs of rehabilitation and training.\n(sec.53-ssec.3) Subsection (1) does not limit the plaintiff’s duty to mitigate damages.\n(sec.53-ssec.4) In assessing damages for personal injury, the court must— consider whether the plaintiff has failed to take reasonable steps to mitigate damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002 , section 26 ; and if the notice suggested that the plaintiff undergo medical treatment or rehabilitation therapy of a specified kind—consider whether the notice was accompanied by an offer by the defendant to pay for the cost of the treatment or therapy; and if it appears the plaintiff has failed to take steps to mitigate damages by not following the suggestions—reduce the plaintiff’s damages to an appropriate extent reflecting the failure if, in all the circumstances, the court considers that the plaintiff’s failure to follow the suggestions was not reasonable.\n(sec.53-ssec.5) Subsection (4) does not apply in assessing damages for personal injury if leave to start the proceeding was given under the Personal Injuries Proceedings Act 2002 , section 43 (1) and was not stayed under section 43 (3) of that Act because section 43 (4) of that Act applied.\n(sec.53-ssec.6) In this section— defendant means a person against whom a claim for personal injury damages is made whether or not a proceeding for the claim has been started. plaintiff means an injured person making a claim for personal injury damages whether or not a proceeding for the claim has been started.\n- (a) the plaintiff should undergo medical treatment of a specified kind; or\n- (b) the plaintiff should return to work or take specified steps to obtain employment; or\n- (c) the plaintiff should undergo rehabilitation therapy of a specified kind, or undertake specified programs of rehabilitation and training.\n- (a) consider whether the plaintiff has failed to take reasonable steps to mitigate damages by not following suggestions made under this section or a written notice given under the Personal Injuries Proceedings Act 2002 , section 26 ; and\n- (b) if the notice suggested that the plaintiff undergo medical treatment or rehabilitation therapy of a specified kind—consider whether the notice was accompanied by an offer by the defendant to pay for the cost of the treatment or therapy; and\n- (c) if it appears the plaintiff has failed to take steps to mitigate damages by not following the suggestions—reduce the plaintiff’s damages to an appropriate extent reflecting the failure if, in all the circumstances, the court considers that the plaintiff’s failure to follow the suggestions was not reasonable.","sortOrder":116},{"sectionNumber":"sec.54","sectionType":"section","heading":"Damages for loss of earnings","content":"### sec.54 Damages for loss of earnings\n\nIn making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2) .\nThe limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings.\nIn this section—\npresent value means the value when the award is made.\ns 54 sub 2005 No. 43 s 9\n(sec.54-ssec.1) In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2) .\n(sec.54-ssec.2) The limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings.\n(sec.54-ssec.3) In this section— present value means the value when the award is made.","sortOrder":117},{"sectionNumber":"sec.55","sectionType":"section","heading":"When earnings can not be precisely calculated","content":"### sec.55 When earnings can not be precisely calculated\n\nThis section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.\nThe court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.\nIf the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.\nThe limitation mentioned in section 54 (2) applies to an award of damages under this section.\n(sec.55-ssec.1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.\n(sec.55-ssec.2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.\n(sec.55-ssec.3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.\n(sec.55-ssec.4) The limitation mentioned in section 54 (2) applies to an award of damages under this section.","sortOrder":118},{"sectionNumber":"sec.56","sectionType":"section","heading":"Damages for loss of superannuation entitlements","content":"### sec.56 Damages for loss of superannuation entitlements\n\nThe maximum amount of damages that may be awarded to an employee for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this part) for the deprivation or impairment of the earning capacity on which the entitlement to the contributions is based.\nThe relevant percentage is the percentage of earnings that is the minimum percentage required by a written law to be paid on the employee’s behalf as employer superannuation contributions.\n(sec.56-ssec.1) The maximum amount of damages that may be awarded to an employee for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this part) for the deprivation or impairment of the earning capacity on which the entitlement to the contributions is based.\n(sec.56-ssec.2) The relevant percentage is the percentage of earnings that is the minimum percentage required by a written law to be paid on the employee’s behalf as employer superannuation contributions.","sortOrder":119},{"sectionNumber":"sec.57","sectionType":"section","heading":"Discount rate for calculating present value of future loss or gratuitous services","content":"### sec.57 Discount rate for calculating present value of future loss or gratuitous services\n\nWhen assessing an amount of damages as a lump sum for a future loss or gratuitous services, the amount must be the present value, calculated using the prescribed discount rate, of the future loss or gratuitous services.\nIn this section—\nprescribed discount rate , for an award, see the Civil Proceedings Act 2011 , section 61 .\ns 57 sub 2011 No. 45 s 111\n(sec.57-ssec.1) When assessing an amount of damages as a lump sum for a future loss or gratuitous services, the amount must be the present value, calculated using the prescribed discount rate, of the future loss or gratuitous services.\n(sec.57-ssec.2) In this section— prescribed discount rate , for an award, see the Civil Proceedings Act 2011 , section 61 .","sortOrder":120},{"sectionNumber":"sec.58","sectionType":"section","heading":"Damages for loss of consortium or loss of servitium","content":"### sec.58 Damages for loss of consortium or loss of servitium\n\nA court must not award damages for loss of consortium or loss of servitium unless—\nthe injured person died as a result of injuries suffered; or\ngeneral damages for the injured person are assessed (before allowing for contributory negligence) at the amount fixed by the Minister, by written notice under section 75 , for this provision, or more.\nThe court must not assess damages for loss of servitium above the limit fixed by subsection (3) .\nThe limit is 3 times average weekly earnings per week.\ns 58 amd 2010 No. 9 s 8 ; 2023 No. 23 s 32\n(sec.58-ssec.1) A court must not award damages for loss of consortium or loss of servitium unless— the injured person died as a result of injuries suffered; or general damages for the injured person are assessed (before allowing for contributory negligence) at the amount fixed by the Minister, by written notice under section 75 , for this provision, or more.\n(sec.58-ssec.2) The court must not assess damages for loss of servitium above the limit fixed by subsection (3) .\n(sec.58-ssec.3) The limit is 3 times average weekly earnings per week.\n- (a) the injured person died as a result of injuries suffered; or\n- (b) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount fixed by the Minister, by written notice under section 75 , for this provision, or more.","sortOrder":121},{"sectionNumber":"sec.59","sectionType":"section","heading":"Damages for gratuitous services provided to an injured person","content":"### sec.59 Damages for gratuitous services provided to an injured person\n\nDamages for gratuitous services provided to an injured person are not to be awarded unless—\nthe services are necessary; and\nthe need for the services arises solely out of the injury in relation to which damages are awarded; and\nthe services are provided, or are to be provided—\nfor at least 6 hours per week; and\nfor at least 6 months.\nDamages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.\nIn assessing damages for gratuitous services, a court must take into account—\nany offsetting benefit the service provider obtains through providing the services; and\nperiods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.\ns 59 amd 2010 No. 9 s 9\n(sec.59-ssec.1) Damages for gratuitous services provided to an injured person are not to be awarded unless— the services are necessary; and the need for the services arises solely out of the injury in relation to which damages are awarded; and the services are provided, or are to be provided— for at least 6 hours per week; and for at least 6 months.\n(sec.59-ssec.2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.\n(sec.59-ssec.3) In assessing damages for gratuitous services, a court must take into account— any offsetting benefit the service provider obtains through providing the services; and periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.\n- (a) the services are necessary; and\n- (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and\n- (c) the services are provided, or are to be provided— (i) for at least 6 hours per week; and (ii) for at least 6 months.\n- (i) for at least 6 hours per week; and\n- (ii) for at least 6 months.\n- (i) for at least 6 hours per week; and\n- (ii) for at least 6 months.\n- (a) any offsetting benefit the service provider obtains through providing the services; and\n- (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.","sortOrder":122},{"sectionNumber":"sec.59A","sectionType":"section","heading":"Damages for gratuitous domestic services provided by an injured person","content":"### sec.59A Damages for gratuitous domestic services provided by an injured person\n\nSubject to section 59B , damages ( section 59A damages ) may be awarded to an injured person for any loss of the person’s capacity to provide gratuitous domestic services to someone else (the recipient ) if subsection (2) or (4) applies.\nGenerally, the court may award section 59A damages only if it is satisfied of all of the following—\neither—\nthe injured person died as a result of the injuries suffered; or\ngeneral damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58 , or more;\nat the relevant time the recipient was—\na person who resided at the injured person’s usual residence; or\nan unborn child of the injured person;\nbefore the relevant time, the injured person—\nprovided the services to the recipient; or\nif the recipient was then an unborn child—would have provided services to the recipient had the recipient been born;\nthe recipient was, or will be, incapable of performing the services personally because of the recipient’s age or physical or mental incapacity;\nthere is a reasonable expectation that, if not for the relevant injury, the injured person would have provided the services to the recipient—\nfor at least 6 hours a week; and\nfor a period of at least 6 months;\nthere will be a need for the services for the hours and the period mentioned in paragraph (e) , and the need is reasonable in all the circumstances.\nSubsection (4) applies if—\nthe court is satisfied, as required under subsection (2) , in all respects other than that the injured person would have provided the services for the hours and the period mentioned in subsection (2) (e) and (f) ; and\nthe recipient was provided with accommodation by a parent other than the injured person or with other care to which all of the following apply—\nit included accommodation provided other than by the injured person;\nit was provided because the recipient is aged, frail or suffers from a mental or physical disability;\nits primary purpose was to give the recipient or the injured person a break from their usual care arrangements.\nThe court may award section 59A damages if it considers that—\nthe injured person would not have provided the services for the hours and the period because of the provision of the accommodation or the other care; and\nawarding the damages is reasonable in all the circumstances.\nThe injured person would have had custody of the recipient each alternate week for a full week at a time.\nThe recipient would have spent part of their school holidays with a non-custodial parent.\nThe recipient is an elderly parent and is placed in short-term or occasional respite care at a nursing home.\nIn this section—\ngratuitous domestic services means services of a domestic nature for which there has been, and will be, no payment or liability to pay.\nparent includes a person who stands in the place of a parent.\nrelevant time means—\ngenerally, when the relevant injury happened; or\nif the symptoms of the relevant injury were not immediately apparent when it happened, when the nature and extent of the injury becomes known.\ns 59A ins 2010 No. 9 s 10\n(sec.59A-ssec.1) Subject to section 59B , damages ( section 59A damages ) may be awarded to an injured person for any loss of the person’s capacity to provide gratuitous domestic services to someone else (the recipient ) if subsection (2) or (4) applies.\n(sec.59A-ssec.2) Generally, the court may award section 59A damages only if it is satisfied of all of the following— either— the injured person died as a result of the injuries suffered; or general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58 , or more; at the relevant time the recipient was— a person who resided at the injured person’s usual residence; or an unborn child of the injured person; before the relevant time, the injured person— provided the services to the recipient; or if the recipient was then an unborn child—would have provided services to the recipient had the recipient been born; the recipient was, or will be, incapable of performing the services personally because of the recipient’s age or physical or mental incapacity; there is a reasonable expectation that, if not for the relevant injury, the injured person would have provided the services to the recipient— for at least 6 hours a week; and for a period of at least 6 months; there will be a need for the services for the hours and the period mentioned in paragraph (e) , and the need is reasonable in all the circumstances.\n(sec.59A-ssec.3) Subsection (4) applies if— the court is satisfied, as required under subsection (2) , in all respects other than that the injured person would have provided the services for the hours and the period mentioned in subsection (2) (e) and (f) ; and the recipient was provided with accommodation by a parent other than the injured person or with other care to which all of the following apply— it included accommodation provided other than by the injured person; it was provided because the recipient is aged, frail or suffers from a mental or physical disability; its primary purpose was to give the recipient or the injured person a break from their usual care arrangements.\n(sec.59A-ssec.4) The court may award section 59A damages if it considers that— the injured person would not have provided the services for the hours and the period because of the provision of the accommodation or the other care; and awarding the damages is reasonable in all the circumstances. The injured person would have had custody of the recipient each alternate week for a full week at a time. The recipient would have spent part of their school holidays with a non-custodial parent. The recipient is an elderly parent and is placed in short-term or occasional respite care at a nursing home.\n(sec.59A-ssec.5) In this section— gratuitous domestic services means services of a domestic nature for which there has been, and will be, no payment or liability to pay. parent includes a person who stands in the place of a parent. relevant time means— generally, when the relevant injury happened; or if the symptoms of the relevant injury were not immediately apparent when it happened, when the nature and extent of the injury becomes known.\n- (a) either— (i) the injured person died as a result of the injuries suffered; or (ii) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58 , or more;\n- (i) the injured person died as a result of the injuries suffered; or\n- (ii) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58 , or more;\n- (b) at the relevant time the recipient was— (i) a person who resided at the injured person’s usual residence; or (ii) an unborn child of the injured person;\n- (i) a person who resided at the injured person’s usual residence; or\n- (ii) an unborn child of the injured person;\n- (c) before the relevant time, the injured person— (i) provided the services to the recipient; or (ii) if the recipient was then an unborn child—would have provided services to the recipient had the recipient been born;\n- (i) provided the services to the recipient; or\n- (ii) if the recipient was then an unborn child—would have provided services to the recipient had the recipient been born;\n- (d) the recipient was, or will be, incapable of performing the services personally because of the recipient’s age or physical or mental incapacity;\n- (e) there is a reasonable expectation that, if not for the relevant injury, the injured person would have provided the services to the recipient— (i) for at least 6 hours a week; and (ii) for a period of at least 6 months;\n- (i) for at least 6 hours a week; and\n- (ii) for a period of at least 6 months;\n- (f) there will be a need for the services for the hours and the period mentioned in paragraph (e) , and the need is reasonable in all the circumstances.\n- (i) the injured person died as a result of the injuries suffered; or\n- (ii) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58 , or more;\n- (i) a person who resided at the injured person’s usual residence; or\n- (ii) an unborn child of the injured person;\n- (i) provided the services to the recipient; or\n- (ii) if the recipient was then an unborn child—would have provided services to the recipient had the recipient been born;\n- (i) for at least 6 hours a week; and\n- (ii) for a period of at least 6 months;\n- (a) the court is satisfied, as required under subsection (2) , in all respects other than that the injured person would have provided the services for the hours and the period mentioned in subsection (2) (e) and (f) ; and\n- (b) the recipient was provided with accommodation by a parent other than the injured person or with other care to which all of the following apply— (i) it included accommodation provided other than by the injured person; (ii) it was provided because the recipient is aged, frail or suffers from a mental or physical disability; (iii) its primary purpose was to give the recipient or the injured person a break from their usual care arrangements.\n- (i) it included accommodation provided other than by the injured person;\n- (ii) it was provided because the recipient is aged, frail or suffers from a mental or physical disability;\n- (iii) its primary purpose was to give the recipient or the injured person a break from their usual care arrangements.\n- (i) it included accommodation provided other than by the injured person;\n- (ii) it was provided because the recipient is aged, frail or suffers from a mental or physical disability;\n- (iii) its primary purpose was to give the recipient or the injured person a break from their usual care arrangements.\n- (a) the injured person would not have provided the services for the hours and the period because of the provision of the accommodation or the other care; and\n- (b) awarding the damages is reasonable in all the circumstances.\n- 1 The injured person would have had custody of the recipient each alternate week for a full week at a time.\n- 2 The recipient would have spent part of their school holidays with a non-custodial parent.\n- 3 The recipient is an elderly parent and is placed in short-term or occasional respite care at a nursing home.\n- (a) generally, when the relevant injury happened; or\n- (b) if the symptoms of the relevant injury were not immediately apparent when it happened, when the nature and extent of the injury becomes known.","sortOrder":123},{"sectionNumber":"sec.59B","sectionType":"section","heading":"Circumstances in which section 59A damages can not be awarded             ","content":"### sec.59B Circumstances in which section 59A damages can not be awarded             \n\nTo remove any doubt, it is declared that section 59A damages can not be awarded if the recipient is not a person mentioned in section 59A (2) (b) .\nSection 59A damages can not be awarded for loss if, and to the extent—\nthe injured person can recover damages for gratuitous services mentioned in section 59 for the same injury that caused the loss; and\nthe provision of gratuitous services to the injured person also resulted, or would also result, in the recipient being provided with the domestic services that the person has lost the capacity to provide.\nSection 59A damages can not be awarded if, and to the extent—\nthe loss resulted from personal injury to which the Motor Accident Insurance Act 1994 applies; and\nFor when the Motor Accident Insurance Act 1994 applies, see section 5 of that Act.\nunder section 51 of that Act an insurer has paid, or is liable to pay, the cost of providing rehabilitation services to the injured person; and\nthe provision of the rehabilitation services resulted, or would result, in the recipient being provided with the domestic services that the injured person has lost the capacity to provide.\nAn injured person, or an injured person’s legal representative, can not be awarded section 59A damages for a loss if the recipient has previously recovered damages for a loss sustained because of the person’s loss of capacity.\ns 59B ins 2010 No. 9 s 10\n(sec.59B-ssec.1) To remove any doubt, it is declared that section 59A damages can not be awarded if the recipient is not a person mentioned in section 59A (2) (b) .\n(sec.59B-ssec.2) Section 59A damages can not be awarded for loss if, and to the extent— the injured person can recover damages for gratuitous services mentioned in section 59 for the same injury that caused the loss; and the provision of gratuitous services to the injured person also resulted, or would also result, in the recipient being provided with the domestic services that the person has lost the capacity to provide.\n(sec.59B-ssec.3) Section 59A damages can not be awarded if, and to the extent— the loss resulted from personal injury to which the Motor Accident Insurance Act 1994 applies; and For when the Motor Accident Insurance Act 1994 applies, see section 5 of that Act. under section 51 of that Act an insurer has paid, or is liable to pay, the cost of providing rehabilitation services to the injured person; and the provision of the rehabilitation services resulted, or would result, in the recipient being provided with the domestic services that the injured person has lost the capacity to provide.\n(sec.59B-ssec.4) An injured person, or an injured person’s legal representative, can not be awarded section 59A damages for a loss if the recipient has previously recovered damages for a loss sustained because of the person’s loss of capacity.\n- (a) the injured person can recover damages for gratuitous services mentioned in section 59 for the same injury that caused the loss; and\n- (b) the provision of gratuitous services to the injured person also resulted, or would also result, in the recipient being provided with the domestic services that the person has lost the capacity to provide.\n- (a) the loss resulted from personal injury to which the Motor Accident Insurance Act 1994 applies; and Note— For when the Motor Accident Insurance Act 1994 applies, see section 5 of that Act.\n- (b) under section 51 of that Act an insurer has paid, or is liable to pay, the cost of providing rehabilitation services to the injured person; and\n- (c) the provision of the rehabilitation services resulted, or would result, in the recipient being provided with the domestic services that the injured person has lost the capacity to provide.","sortOrder":124},{"sectionNumber":"sec.59C","sectionType":"section","heading":"Provisions for assessment of section 59A damages","content":"### sec.59C Provisions for assessment of section 59A damages\n\nIn deciding, for section 59A , the value of any gratuitous domestic services that an injured person has lost the capacity to provide to the recipient, the court must take into account—\nthe extent of the injured person’s capacity to provide the services before the relevant time under section 59A ; and\nthe extent to which provision of the services would, if not for the injury sustained by the injured person, have also benefited persons outside the injured person’s household; and\nthe vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.\nSection 59A damages must be assessed on the injured person’s life expectancy immediately before the relevant time under section 59A .\nHowever, if the injured person’s life is shortened by an unrelated event, section 59A damages can not be awarded for any period after the person’s death.\na life-limiting illness first suffered after the breach of duty happened\nIn deciding the amount of section 59A damages, if any, to be awarded to the injured person for a loss of capacity mentioned in section 59A , a court—\nmay only award damages for that loss as provided under section 59A ; and\nmust not include in any general damages awarded to the injured person a component that compensates the person for the loss of that capacity.\ns 59C ins 2010 No. 9 s 10\n(sec.59C-ssec.1) In deciding, for section 59A , the value of any gratuitous domestic services that an injured person has lost the capacity to provide to the recipient, the court must take into account— the extent of the injured person’s capacity to provide the services before the relevant time under section 59A ; and the extent to which provision of the services would, if not for the injury sustained by the injured person, have also benefited persons outside the injured person’s household; and the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.\n(sec.59C-ssec.2) Section 59A damages must be assessed on the injured person’s life expectancy immediately before the relevant time under section 59A .\n(sec.59C-ssec.3) However, if the injured person’s life is shortened by an unrelated event, section 59A damages can not be awarded for any period after the person’s death. a life-limiting illness first suffered after the breach of duty happened\n(sec.59C-ssec.4) In deciding the amount of section 59A damages, if any, to be awarded to the injured person for a loss of capacity mentioned in section 59A , a court— may only award damages for that loss as provided under section 59A ; and must not include in any general damages awarded to the injured person a component that compensates the person for the loss of that capacity.\n- (a) the extent of the injured person’s capacity to provide the services before the relevant time under section 59A ; and\n- (b) the extent to which provision of the services would, if not for the injury sustained by the injured person, have also benefited persons outside the injured person’s household; and\n- (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.\n- (a) may only award damages for that loss as provided under section 59A ; and\n- (b) must not include in any general damages awarded to the injured person a component that compensates the person for the loss of that capacity.","sortOrder":125},{"sectionNumber":"sec.59D","sectionType":"section","heading":"Restriction on damages if section 59A damages already recovered              ","content":"### sec.59D Restriction on damages if section 59A damages already recovered              \n\nThis section applies to anyone (the claimant ), including a recipient mentioned in section 59A (1) , who makes a claim for loss sustained because of personal injury suffered by an injured person.\nThe claimant can not be awarded damages for a loss sustained by the claimant because of the injured person’s loss of capacity to provide gratuitous domestic services if the injured person or the person’s legal representative has previously recovered section 59A damages for that loss.\ns 59D ins 2010 No. 9 s 10\n(sec.59D-ssec.1) This section applies to anyone (the claimant ), including a recipient mentioned in section 59A (1) , who makes a claim for loss sustained because of personal injury suffered by an injured person.\n(sec.59D-ssec.2) The claimant can not be awarded damages for a loss sustained by the claimant because of the injured person’s loss of capacity to provide gratuitous domestic services if the injured person or the person’s legal representative has previously recovered section 59A damages for that loss.","sortOrder":126},{"sectionNumber":"sec.60","sectionType":"section","heading":"Interest","content":"### sec.60 Interest\n\nA court can not order the payment of interest on—\nan award for general damages; or\nan award of damages for gratuitous services provided to an injured person.\nInterest awarded on damages compensating past monetary loss—\nmust not be more than interest at the appropriate rate; and\nmust be related in an appropriate way to the period over which the loss was incurred.\nThe appropriate rate is the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Capital Market Yields—Government Bonds—Daily—F2’ as at the beginning of the quarter in which the award of interest is made.\nSuppose that past monetary loss consists of medical expenses that have been incurred at a uniform rate over a particular period. The interest to be awarded would be calculated under the following formula—\nA = am/100 x p x 0.5\nwhere—\nA is the amount of the award of interest.\na is a percentage rate decided by the court subject to the limit fixed in subsection (2) .\nm is the aggregate of the medical expenses.\np is the period over which the medical expenses have been incurred (expressed in years).\ns 60 amd 2010 No. 9 s 11 ; 2010 No. 42 s 214 sch\n(sec.60-ssec.1) A court can not order the payment of interest on— an award for general damages; or an award of damages for gratuitous services provided to an injured person.\n(sec.60-ssec.2) Interest awarded on damages compensating past monetary loss— must not be more than interest at the appropriate rate; and must be related in an appropriate way to the period over which the loss was incurred.\n(sec.60-ssec.3) The appropriate rate is the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Capital Market Yields—Government Bonds—Daily—F2’ as at the beginning of the quarter in which the award of interest is made. Suppose that past monetary loss consists of medical expenses that have been incurred at a uniform rate over a particular period. The interest to be awarded would be calculated under the following formula— A = am/100 x p x 0.5 where— A is the amount of the award of interest. a is a percentage rate decided by the court subject to the limit fixed in subsection (2) . m is the aggregate of the medical expenses. p is the period over which the medical expenses have been incurred (expressed in years).\n- (a) an award for general damages; or\n- (b) an award of damages for gratuitous services provided to an injured person.\n- (a) must not be more than interest at the appropriate rate; and\n- (b) must be related in an appropriate way to the period over which the loss was incurred.","sortOrder":127},{"sectionNumber":"sec.61","sectionType":"section","heading":"Assessment by court of injury scale","content":"### sec.61 Assessment by court of injury scale\n\nIf general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows—\nthe injured person’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100;\nthe scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;\nin assessing the injury scale value, the court must—\nassess the injury scale value under any rules provided under a regulation; and\nhave regard to the injury scale values given to similar injuries in previous proceedings.\nIf a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1) (c) , the court must state the factors on which the assessment is based that justify the assessed injury scale value.\ns 61 amd 2004 No. 23 s 77\n(sec.61-ssec.1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows— the injured person’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100; the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind; in assessing the injury scale value, the court must— assess the injury scale value under any rules provided under a regulation; and have regard to the injury scale values given to similar injuries in previous proceedings.\n(sec.61-ssec.2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1) (c) , the court must state the factors on which the assessment is based that justify the assessed injury scale value.\n- (a) the injured person’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100;\n- (b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;\n- (c) in assessing the injury scale value, the court must— (i) assess the injury scale value under any rules provided under a regulation; and (ii) have regard to the injury scale values given to similar injuries in previous proceedings.\n- (i) assess the injury scale value under any rules provided under a regulation; and\n- (ii) have regard to the injury scale values given to similar injuries in previous proceedings.\n- (i) assess the injury scale value under any rules provided under a regulation; and\n- (ii) have regard to the injury scale values given to similar injuries in previous proceedings.","sortOrder":128},{"sectionNumber":"sec.62","sectionType":"section","heading":"Calculation of general damages","content":"### sec.62 Calculation of general damages\n\nFor an injury arising after 1 December 2002, general damages must be calculated under this section.\nThe Minister may make a notice under section 75 , for a financial year, fixing the following for each injury scale value—\na base amount, if any;\na variable amount.\nWithout limiting subsection (2) (b) , a notice is taken to fix a variable amount for an injury scale value if the notice states the way in which the variable amount is to be worked out.\nThe general damages for an injury are the sum of the following amounts, fixed by the notice under subsection (2) , for the period within which the injury arose—\nany base amount for the injury scale value for the injury;\nthe variable amount for the injury scale value for the injury.\ns 62 sub 2010 No. 9 s 12 ; 2023 No. 23 s 33\n(sec.62-ssec.1) For an injury arising after 1 December 2002, general damages must be calculated under this section.\n(sec.62-ssec.2) The Minister may make a notice under section 75 , for a financial year, fixing the following for each injury scale value— a base amount, if any; a variable amount.\n(sec.62-ssec.3) Without limiting subsection (2) (b) , a notice is taken to fix a variable amount for an injury scale value if the notice states the way in which the variable amount is to be worked out.\n(sec.62-ssec.4) The general damages for an injury are the sum of the following amounts, fixed by the notice under subsection (2) , for the period within which the injury arose— any base amount for the injury scale value for the injury; the variable amount for the injury scale value for the injury.\n- (a) a base amount, if any;\n- (b) a variable amount.\n- (a) any base amount for the injury scale value for the injury;\n- (b) the variable amount for the injury scale value for the injury.","sortOrder":129},{"sectionNumber":"ch.3-pt.4","sectionType":"part","heading":"Structured settlements","content":"# Structured settlements","sortOrder":130},{"sectionNumber":"sec.63","sectionType":"section","heading":"Definition for pt 4","content":"### sec.63 Definition for pt 4\n\nIn this part—\nstructured settlement means an agreement providing for the payment of all or part of an award of personal injury damages in the form of periodic payments funded by an annuity or other agreed means.","sortOrder":131},{"sectionNumber":"sec.64","sectionType":"section","heading":"Court required to inform parties of proposed award","content":"### sec.64 Court required to inform parties of proposed award\n\nThe purpose of this section is to enable the court to give the parties to a proceeding a reasonable opportunity to negotiate a structured settlement.\nA court that decides to make an award for future loss (not including interest) of more than the amount fixed by the Minister, by written notice under section 75 , for this section must first notify all the parties to the proceeding of the terms of the award it proposes to make.\ns 64 amd 2010 No. 9 s 13 ; 2023 No. 23 s 34\n(sec.64-ssec.1) The purpose of this section is to enable the court to give the parties to a proceeding a reasonable opportunity to negotiate a structured settlement.\n(sec.64-ssec.2) A court that decides to make an award for future loss (not including interest) of more than the amount fixed by the Minister, by written notice under section 75 , for this section must first notify all the parties to the proceeding of the terms of the award it proposes to make.","sortOrder":132},{"sectionNumber":"sec.65","sectionType":"section","heading":"Court may make consent order for structured settlement","content":"### sec.65 Court may make consent order for structured settlement\n\nA court may, on the application of the parties to a claim for personal injury damages, make an order approving of or in the terms of a structured settlement even though the payment of damages is not in the form of a lump sum award of damages.","sortOrder":133},{"sectionNumber":"sec.66","sectionType":"section","heading":"Obligation of legal practitioners to provide advice","content":"### sec.66 Obligation of legal practitioners to provide advice\n\nA lawyer engaged by a plaintiff must advise the plaintiff, in writing, about the following if the plaintiff proposes to negotiate a settlement of a claim for personal injury damages—\nthe availability of structured settlements;\nthe desirability of the plaintiff obtaining independent financial advice about structured settlements and lump sum settlements of the claim.\n- (a) the availability of structured settlements;\n- (b) the desirability of the plaintiff obtaining independent financial advice about structured settlements and lump sum settlements of the claim.","sortOrder":134},{"sectionNumber":"sec.67","sectionType":"section","heading":"Offer of structured settlement—legal costs","content":"### sec.67 Offer of structured settlement—legal costs\n\nThe Uniform Civil Procedure Rules 1999 , chapter 9 , part 5 extends to an offer of compromise by way of a structured settlement on a claim for personal injury damages.\nIn that case, the court is to have regard to the cost to the defendant of the proposed structured settlement as compared to the lump sum payment of damages when deciding whether a reasonable offer of compromise has been made.\ns 67 amd 2004 No. 23 s 78\n(sec.67-ssec.1) The Uniform Civil Procedure Rules 1999 , chapter 9 , part 5 extends to an offer of compromise by way of a structured settlement on a claim for personal injury damages.\n(sec.67-ssec.2) In that case, the court is to have regard to the cost to the defendant of the proposed structured settlement as compared to the lump sum payment of damages when deciding whether a reasonable offer of compromise has been made.","sortOrder":135},{"sectionNumber":"ch.4-pt.1","sectionType":"part","heading":"Expressions of regret","content":"# Expressions of regret","sortOrder":136},{"sectionNumber":"sec.68","sectionType":"section","heading":"Application of pt 1","content":"### sec.68 Application of pt 1\n\nThis part applies only in relation to a claim for personal injury damages.","sortOrder":137},{"sectionNumber":"sec.69","sectionType":"section","heading":"Definition for pt 1","content":"### sec.69 Definition for pt 1\n\nIn this part—\nliability includes the following—\nfault;\nnegligence.\n- (a) fault;\n- (b) negligence.","sortOrder":138},{"sectionNumber":"sec.70","sectionType":"section","heading":"Purpose of pt 1","content":"### sec.70 Purpose of pt 1\n\nThe purpose of this part is to allow an individual to express regret about an incident that may give rise to an action for personal injury damages without being concerned that the expression of regret may be construed or used as an admission of liability on a claim or in a proceeding based on a claim arising out of the incident.","sortOrder":139},{"sectionNumber":"sec.71","sectionType":"section","heading":"Meaning of expression of regret","content":"### sec.71 Meaning of expression of regret\n\nAn expression of regret made by an individual in relation to an incident alleged to give rise to an action for damages is any oral or written statement expressing regret for the incident to the extent that it does not contain an admission of liability on the part of the individual or someone else.","sortOrder":140},{"sectionNumber":"sec.72","sectionType":"section","heading":"Expressions of regret are inadmissible","content":"### sec.72 Expressions of regret are inadmissible\n\nAn expression of regret made by an individual in relation to an incident alleged to give rise to an action for damages at any time before a civil proceeding is started in a court in relation to the incident is not admissible in the proceeding.\nSuppose a patient attended a health service and was diagnosed as suffering from gall stones. Removal of the gall bladder was recommended for treatment of the condition. The procedure was attempted, but there was an adverse outcome.\nA health care provider stated that the provider was sorry that there was an adverse outcome.\nThe statement is inadmissible in any future proceeding against the health care provider in relation to a personal injury allegedly arising out of the procedure.","sortOrder":141},{"sectionNumber":"ch.4-pt.1A","sectionType":"part","heading":"Apologies","content":"# Apologies","sortOrder":142},{"sectionNumber":"sec.72A","sectionType":"section","heading":"Application of pt 1A","content":"### sec.72A Application of pt 1A\n\nThis part applies to civil liability of any kind.\nHowever, this part does not apply to the following—\ncivil liability that is excluded from the operation of this part by section 5 ;\ncivil liability for defamation;\ncivil liability of a person for an unlawful intentional act done by the person with intent to cause personal injury;\ncivil liability of a person for an unlawful sexual assault or other unlawful sexual misconduct committed by the person.\nDespite subsection (2) (c) and (d) , this part applies to an apology made by or on behalf of an institution in relation to the abuse of a child by a person associated with the institution.\nIn this section—\nabuse , of a child, means—\nsexual abuse or serious physical abuse of the child; or\npsychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.\nassociated with , an institution, see section 33C .\ninstitution see section 33A .\ns 72A ins 2010 No. 37 s 18\namd 2019 No. 34 s 4A\n(sec.72A-ssec.1) This part applies to civil liability of any kind.\n(sec.72A-ssec.2) However, this part does not apply to the following— civil liability that is excluded from the operation of this part by section 5 ; civil liability for defamation; civil liability of a person for an unlawful intentional act done by the person with intent to cause personal injury; civil liability of a person for an unlawful sexual assault or other unlawful sexual misconduct committed by the person.\n(sec.72A-ssec.3) Despite subsection (2) (c) and (d) , this part applies to an apology made by or on behalf of an institution in relation to the abuse of a child by a person associated with the institution.\n(sec.72A-ssec.4) In this section— abuse , of a child, means— sexual abuse or serious physical abuse of the child; or psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child. associated with , an institution, see section 33C . institution see section 33A .\n- (a) civil liability that is excluded from the operation of this part by section 5 ;\n- (b) civil liability for defamation;\n- (c) civil liability of a person for an unlawful intentional act done by the person with intent to cause personal injury;\n- (d) civil liability of a person for an unlawful sexual assault or other unlawful sexual misconduct committed by the person.\n- (a) sexual abuse or serious physical abuse of the child; or\n- (b) psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.","sortOrder":143},{"sectionNumber":"sec.72B","sectionType":"section","heading":"Purpose of pt 1A","content":"### sec.72B Purpose of pt 1A\n\nThe purpose of this part is to allow a person to make an apology about a matter without the apology being construed or used as an admission of liability in relation to the matter.\ns 72B ins 2010 No. 37 s 18","sortOrder":144},{"sectionNumber":"sec.72C","sectionType":"section","heading":"Meaning of apology","content":"### sec.72C Meaning of apology\n\nAn apology is an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, whether or not it admits or implies an admission of fault in relation to the matter.\ns 72C ins 2010 No. 37 s 18","sortOrder":145},{"sectionNumber":"sec.72D","sectionType":"section","heading":"Effect of apology on liability","content":"### sec.72D Effect of apology on liability\n\nAn apology made by or on behalf of a person in relation to any matter alleged to have been caused by the person—\ndoes not constitute an express or implied admission of fault or liability by the person in relation to the matter; and\nis not relevant to the determination of fault or liability in relation to matter.\nEvidence of an apology made by a person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the matter.\ns 72D ins 2010 No. 37 s 18\n(sec.72D-ssec.1) An apology made by or on behalf of a person in relation to any matter alleged to have been caused by the person— does not constitute an express or implied admission of fault or liability by the person in relation to the matter; and is not relevant to the determination of fault or liability in relation to matter.\n(sec.72D-ssec.2) Evidence of an apology made by a person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the matter.\n- (a) does not constitute an express or implied admission of fault or liability by the person in relation to the matter; and\n- (b) is not relevant to the determination of fault or liability in relation to matter.","sortOrder":146},{"sectionNumber":"ch.4-pt.2","sectionType":"part","heading":"Jury trials","content":"# Jury trials","sortOrder":147},{"sectionNumber":"sec.73","sectionType":"section","heading":"Exclusion of jury trial","content":"### sec.73 Exclusion of jury trial\n\nA proceeding in a court based on a claim for personal injury damages must be decided by the court sitting without a jury.","sortOrder":148},{"sectionNumber":"ch.4-pt.3","sectionType":"part","heading":"General","content":"# General","sortOrder":149},{"sectionNumber":"sec.74","sectionType":"section","heading":"Regulation-making power","content":"### sec.74 Regulation-making power\n\nThe Governor in Council may make regulations under this Act.\nA regulation may do any of the following—\nprescribe offences for a contravention of a regulation, and fix a maximum penalty of not more than 20 penalty units for a contravention;\nprescribe fees payable under this Act.\n(sec.74-ssec.1) The Governor in Council may make regulations under this Act.\n(sec.74-ssec.2) A regulation may do any of the following— prescribe offences for a contravention of a regulation, and fix a maximum penalty of not more than 20 penalty units for a contravention; prescribe fees payable under this Act.\n- (a) prescribe offences for a contravention of a regulation, and fix a maximum penalty of not more than 20 penalty units for a contravention;\n- (b) prescribe fees payable under this Act.","sortOrder":150},{"sectionNumber":"sec.75","sectionType":"section","heading":"Indexation of particular amounts","content":"### sec.75 Indexation of particular amounts\n\nThe Minister must, before each financial year starts, make a notice for the financial year fixing amounts for or under the following provisions—\nsection 58 (1) (b) ;\nsection 62 (2) (a) and (b) ;\nsection 64 (2) .\nThe amount fixed for or under a provision mentioned in subsection (1) for a purpose is to be the amount last fixed by the Minister for the purpose adjusted by the percentage change in average weekly earnings between the current financial year and the last financial year and rounded to the nearest 10 dollars (rounding one-half upwards).\nHowever, subsection (4) applies if—\nthe percentage change in average weekly earnings between the current financial year and the last financial year would reduce or would not change the amount fixed for a purpose; or\nthe percentage change in average weekly earnings between the current financial year and the last financial year is not available from the Australian Statistician.\nThe Minister must fix an amount for the purpose that is not less than the amount for the purpose last fixed by the Minister.\nThe Minister’s notice is subordinate legislation.\nDespite subsection (1) , the Minister may make a notice for a financial year, after 1 July in the financial year, that has retrospective operation to 1 July in the financial year.\nSubsection (6) applies despite the Statutory Instruments Act 1992 , section 34 .\nIn this section—\ncurrent financial year , for a notice, means the financial year immediately before the financial year for which the notice is made.\nlast financial year , for a notice, means the financial year immediately before the current financial year.\ns 75 prev s 75 exp 2 December 2005 (see prev s 75(5))\npres s 75 ins 2010 No. 9 s 14\namd 2013 No. 39 s 110 sch 3 pt 2 ; 2013 No. 52 s 116\nsub 2023 No. 23 s 35\n(sec.75-ssec.1) The Minister must, before each financial year starts, make a notice for the financial year fixing amounts for or under the following provisions— section 58 (1) (b) ; section 62 (2) (a) and (b) ; section 64 (2) .\n(sec.75-ssec.2) The amount fixed for or under a provision mentioned in subsection (1) for a purpose is to be the amount last fixed by the Minister for the purpose adjusted by the percentage change in average weekly earnings between the current financial year and the last financial year and rounded to the nearest 10 dollars (rounding one-half upwards).\n(sec.75-ssec.3) However, subsection (4) applies if— the percentage change in average weekly earnings between the current financial year and the last financial year would reduce or would not change the amount fixed for a purpose; or the percentage change in average weekly earnings between the current financial year and the last financial year is not available from the Australian Statistician.\n(sec.75-ssec.4) The Minister must fix an amount for the purpose that is not less than the amount for the purpose last fixed by the Minister.\n(sec.75-ssec.5) The Minister’s notice is subordinate legislation.\n(sec.75-ssec.6) Despite subsection (1) , the Minister may make a notice for a financial year, after 1 July in the financial year, that has retrospective operation to 1 July in the financial year.\n(sec.75-ssec.7) Subsection (6) applies despite the Statutory Instruments Act 1992 , section 34 .\n(sec.75-ssec.8) In this section— current financial year , for a notice, means the financial year immediately before the financial year for which the notice is made. last financial year , for a notice, means the financial year immediately before the current financial year.\n- (a) section 58 (1) (b) ;\n- (b) section 62 (2) (a) and (b) ;\n- (c) section 64 (2) .\n- (a) the percentage change in average weekly earnings between the current financial year and the last financial year would reduce or would not change the amount fixed for a purpose; or\n- (b) the percentage change in average weekly earnings between the current financial year and the last financial year is not available from the Australian Statistician.","sortOrder":151},{"sectionNumber":"ch.5-pt.1","sectionType":"part","heading":"Transitional provisions for Act No. 16 of 2003","content":"# Transitional provisions for Act No. 16 of 2003","sortOrder":152},{"sectionNumber":"sec.76","sectionType":"section","heading":"Prescribed entities for ss 26 and 27","content":"### sec.76 Prescribed entities for ss 26 and 27\n\nSubsection (2) applies until a regulation under this Act prescribes an entity for section 26(1)(a).\nThe entities mentioned in the Personal Injuries Proceedings Regulation 2002 , section 12, immediately before the commencement of this section are taken to be prescribed for section 26(1)(a) and 27(1).\n(sec.76-ssec.1) Subsection (2) applies until a regulation under this Act prescribes an entity for section 26(1)(a).\n(sec.76-ssec.2) The entities mentioned in the Personal Injuries Proceedings Regulation 2002 , section 12, immediately before the commencement of this section are taken to be prescribed for section 26(1)(a) and 27(1).","sortOrder":153},{"sectionNumber":"sec.77","sectionType":"section","heading":"Jury trials","content":"### sec.77 Jury trials\n\nDespite the omission of the Personal Injuries Proceedings Act 2002 , section 58 by chapter 6, part 1, of this Act and despite section 73 of this Act, a jury trial may be started or continued if it could have been started or continued under the Personal Injuries Proceedings Act 2002 , section 77, immediately before the commencement of this section.","sortOrder":154},{"sectionNumber":"sec.78","sectionType":"section","heading":null,"content":"### Section sec.78\n\ns 78 om 2013 No. 39 s 109 sch 2","sortOrder":155},{"sectionNumber":"ch.5-pt.2","sectionType":"part","heading":"Transitional provisions for Justice and Other Legislation Amendment Act 2004","content":"# Transitional provisions for Justice and Other Legislation Amendment Act 2004","sortOrder":156},{"sectionNumber":"sec.79","sectionType":"section","heading":"Food donations","content":"### sec.79 Food donations\n\nChapter 2, part 3, division 2 applies in relation to persons donating food in circumstances mentioned in section 39(3) only after the commencement of the Justice and Other Legislation Amendment Act 2004 , section 23 .\ns 79 ins 2004 No. 43 s 26","sortOrder":157},{"sectionNumber":"sec.80","sectionType":"section","heading":"Injuries under the Workers’ Compensation and Rehabilitation Act 2003   ","content":"### sec.80 Injuries under the Workers’ Compensation and Rehabilitation Act 2003   \n\nSection 5(b) has effect in relation to an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003 , other than an injury to which section 34 (1) (c) or 35 of that Act applies, whether the injury happened before, on or after the commencement of this section.\ns 80 ins 2004 No. 43 s 26","sortOrder":158},{"sectionNumber":"ch.5-pt.3","sectionType":"part","heading":"Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005","content":"# Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005","sortOrder":159},{"sectionNumber":"sec.81","sectionType":"section","heading":"Awards of damages for loss of earnings","content":"### sec.81 Awards of damages for loss of earnings\n\nIt is declared that section 54, as amended by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 , applies in relation to all awards for damages for loss of earnings made on or after the commencement of this section, whether or not liability for the loss arose before or after the commencement.\nTo remove any doubt, it is declared that section 54 does not apply in relation to an appeal against an award for damages for loss of earnings heard on or after the commencement if the award was made before the commencement.\ns 81 ins 2005 No. 43 s 10\n(sec.81-ssec.1) It is declared that section 54, as amended by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 , applies in relation to all awards for damages for loss of earnings made on or after the commencement of this section, whether or not liability for the loss arose before or after the commencement.\n(sec.81-ssec.2) To remove any doubt, it is declared that section 54 does not apply in relation to an appeal against an award for damages for loss of earnings heard on or after the commencement if the award was made before the commencement.","sortOrder":160},{"sectionNumber":"ch.5-pt.4","sectionType":"part","heading":"Declaration about commencement of chapter 2 , part 2","content":"# Declaration about commencement of chapter 2 , part 2","sortOrder":161},{"sectionNumber":"sec.82","sectionType":"section","heading":"Commencement of ch 2 , pt 2","content":"### sec.82 Commencement of ch 2 , pt 2\n\nIt is declared that chapter 2 , part 2 commenced and has effect, and has always had effect, on and from 1 March 2005.\ns 82 ins 2005 No. 70 s 44","sortOrder":162},{"sectionNumber":"ch.5-pt.5","sectionType":"part","heading":"Transitional provision for Criminal Code and Civil Liability Amendment Act 2007","content":"# Transitional provision for Criminal Code and Civil Liability Amendment Act 2007","sortOrder":163},{"sectionNumber":"sec.83","sectionType":"section","heading":"Personal injury to which the amended s 5 extends as a result of the amendment","content":"### sec.83 Personal injury to which the amended s 5 extends as a result of the amendment\n\nIt is declared that section 5, to the extent it is amended by the amending Act, has effect to disapply this Act to a decision in relation to personal injury only if the personal injury, or any part of it, is or was caused on or after 6 November 2006.\nHowever, section 5, to the extent it is amended by the amending Act, does not have effect to disapply this Act to a decision in relation to personal injury if, before the date of assent of the amending Act—\nthe parties have entered into an agreement to pay damages for the personal injury; or\nthe trial in relation to the personal injury has started but final relief has not been granted by the court; or\nfinal relief in relation to the personal injury has been granted by a court.\nSection 5, as in force before 6 November 2006, continues to apply in relation to a decision mentioned in subsection (2).\nIn this section—\namending Act means the Criminal Code and Civil Liability Amendment Act 2007 .\nfinal relief , in relation to personal injury, means the judgment or decision for the civil claim in relation to the personal injury, including the judgment or decision about liability only, whether or not an appeal has been made against the judgment or decision.\ns 83 ins 2007 No. 14 s 9 (retro)\n(sec.83-ssec.1) It is declared that section 5, to the extent it is amended by the amending Act, has effect to disapply this Act to a decision in relation to personal injury only if the personal injury, or any part of it, is or was caused on or after 6 November 2006.\n(sec.83-ssec.2) However, section 5, to the extent it is amended by the amending Act, does not have effect to disapply this Act to a decision in relation to personal injury if, before the date of assent of the amending Act— the parties have entered into an agreement to pay damages for the personal injury; or the trial in relation to the personal injury has started but final relief has not been granted by the court; or final relief in relation to the personal injury has been granted by a court.\n(sec.83-ssec.3) Section 5, as in force before 6 November 2006, continues to apply in relation to a decision mentioned in subsection (2).\n(sec.83-ssec.4) In this section— amending Act means the Criminal Code and Civil Liability Amendment Act 2007 . final relief , in relation to personal injury, means the judgment or decision for the civil claim in relation to the personal injury, including the judgment or decision about liability only, whether or not an appeal has been made against the judgment or decision.\n- (a) the parties have entered into an agreement to pay damages for the personal injury; or\n- (b) the trial in relation to the personal injury has started but final relief has not been granted by the court; or\n- (c) final relief in relation to the personal injury has been granted by a court.","sortOrder":164},{"sectionNumber":"ch.5-pt.6","sectionType":"part","heading":"Transitional provision for Justice and Other Legislation Amendment Act 2008 , part 5","content":"# Transitional provision for Justice and Other Legislation Amendment Act 2008 , part 5","sortOrder":165},{"sectionNumber":"sec.84","sectionType":"section","heading":"Persons donating food","content":"### sec.84 Persons donating food\n\nThe reference to personal civil liability in section 39(2), as in force before the commencement of this section, has never had the effect of limiting the protection to individuals.\nIt is declared that the protection has always been available to persons including individuals and corporations.\ns 84 ins 2008 No. 59 s 17\n(sec.84-ssec.1) The reference to personal civil liability in section 39(2), as in force before the commencement of this section, has never had the effect of limiting the protection to individuals.\n(sec.84-ssec.2) It is declared that the protection has always been available to persons including individuals and corporations.","sortOrder":166},{"sectionNumber":"ch.5-pt.7","sectionType":"part","heading":"Transitional provisions for Civil Liability and Other Legislation Amendment Act 2010","content":"# Transitional provisions for Civil Liability and Other Legislation Amendment Act 2010","sortOrder":167},{"sectionNumber":"sec.85","sectionType":"section","heading":"Retrospective effect of section 59A damages provisions for dust-related claims only","content":"### sec.85 Retrospective effect of section 59A damages provisions for dust-related claims only\n\nThe section 59A damages provisions apply to any dust-related claim, even if the relevant breach of duty has happened or happens before 1 July 2010.\nThe section 59A damages provisions commence on 1 July 2010.\nHowever, the section 59A damages provisions do not apply to a dust-related claim if, before the date of assent of the amending Act—\nthe claim was settled; or\na proceeding for the claim was started and—\nthe proceeding was discontinued; or\njudgment was given in the proceeding.\nThe section 59A damages provisions apply to another type of personal injury claim only if the relevant breach of duty happens on or after 1 July 2010.\nTo remove any doubt, it is declared that in a proceeding for a dust-related claim started before 1 July 2010, section 59A damages may be claimed even though the section 59A damages provisions have not yet commenced.\nIn this section—\namending Act means the Civil Liability and Other Legislation Amendment Act 2010 .\ndust-related claim means a claim for personal injury damages resulting from a dust-related condition.\nsection 59A damages provisions means sections 5, 7, 59, 59A to 59D and 60 and schedule 2, definition section 59A damages , as amended or inserted under the amending Act.\ns 85 ins 2010 No. 9 s 15\n(sec.85-ssec.1) The section 59A damages provisions apply to any dust-related claim, even if the relevant breach of duty has happened or happens before 1 July 2010. The section 59A damages provisions commence on 1 July 2010.\n(sec.85-ssec.2) However, the section 59A damages provisions do not apply to a dust-related claim if, before the date of assent of the amending Act— the claim was settled; or a proceeding for the claim was started and— the proceeding was discontinued; or judgment was given in the proceeding.\n(sec.85-ssec.3) The section 59A damages provisions apply to another type of personal injury claim only if the relevant breach of duty happens on or after 1 July 2010.\n(sec.85-ssec.4) To remove any doubt, it is declared that in a proceeding for a dust-related claim started before 1 July 2010, section 59A damages may be claimed even though the section 59A damages provisions have not yet commenced.\n(sec.85-ssec.5) In this section— amending Act means the Civil Liability and Other Legislation Amendment Act 2010 . dust-related claim means a claim for personal injury damages resulting from a dust-related condition. section 59A damages provisions means sections 5, 7, 59, 59A to 59D and 60 and schedule 2, definition section 59A damages , as amended or inserted under the amending Act.\n- (a) the claim was settled; or\n- (b) a proceeding for the claim was started and— (i) the proceeding was discontinued; or (ii) judgment was given in the proceeding.\n- (i) the proceeding was discontinued; or\n- (ii) judgment was given in the proceeding.\n- (i) the proceeding was discontinued; or\n- (ii) judgment was given in the proceeding.","sortOrder":168},{"sectionNumber":"ch.5-pt.8","sectionType":"part","heading":"Transitional provision for Civil Liability and Other Legislation Amendment Act 2019","content":"# Transitional provision for Civil Liability and Other Legislation Amendment Act 2019","sortOrder":169},{"sectionNumber":"sec.86","sectionType":"section","heading":"Application of ch 2, pt 2A","content":"### sec.86 Application of ch 2, pt 2A\n\nChapter 2, part 2A, other than division 2, applies in relation to a cause of action whether it arose before or after the commencement.\ns 86 prev s 86 ins 2010 No. 9 s 15\nom 2013 No. 39 s 109 sch 2\npres s 86 ins 2019 No. 34 s 5","sortOrder":170},{"sectionNumber":"ch.5-pt.9","sectionType":"part","heading":"Transitional provisions for Justice and Other Legislation Amendment Act 2023","content":"# Transitional provisions for Justice and Other Legislation Amendment Act 2023","sortOrder":171},{"sectionNumber":"sec.87","sectionType":"section","heading":"Definitions for part","content":"### sec.87 Definitions for part\n\nIn this part—\nformer , for a provision of this Act, means the provision as in force immediately before the commencement.\nnew , for a provision of this Act, means the provision in force from the commencement.\ns 87 ins 2023 No. 23 s 36","sortOrder":172},{"sectionNumber":"sec.88","sectionType":"section","heading":"First notice made by the Minister","content":"### sec.88 First notice made by the Minister\n\nThis section applies in relation to the first notice made by the Minister under new section 75(1).\nFor new section 75(2) and (4), a reference to the amount last fixed by the Minister for a purpose is taken to be a reference to the amount prescribed for the purpose by a regulation, made under former section 75, as in force immediately before the commencement.\ns 88 ins 2023 No. 23 s 36\n(sec.88-ssec.1) This section applies in relation to the first notice made by the Minister under new section 75(1).\n(sec.88-ssec.2) For new section 75(2) and (4), a reference to the amount last fixed by the Minister for a purpose is taken to be a reference to the amount prescribed for the purpose by a regulation, made under former section 75, as in force immediately before the commencement.","sortOrder":173},{"sectionNumber":"sec.89","sectionType":"section","heading":"Existing prescribed amounts","content":"### sec.89 Existing prescribed amounts\n\nThis section applies in relation to each amount that, immediately before the commencement, was prescribed by regulation for or under former section 58(1)(b), 62(2) or 64(2) for a period.\nThe amount continues to have effect as if it had been fixed under new section 75(1).\nThe Minister may, for information only, include the amount in the notice made by the Minister under new section 75(1) as the amount fixed for or under section 58(1)(b), 62(2) or 64(2) for the period.\ns 89 ins 2023 No. 23 s 36\n(sec.89-ssec.1) This section applies in relation to each amount that, immediately before the commencement, was prescribed by regulation for or under former section 58(1)(b), 62(2) or 64(2) for a period.\n(sec.89-ssec.2) The amount continues to have effect as if it had been fixed under new section 75(1).\n(sec.89-ssec.3) The Minister may, for information only, include the amount in the notice made by the Minister under new section 75(1) as the amount fixed for or under section 58(1)(b), 62(2) or 64(2) for the period.","sortOrder":174}],"analysis":{"issue_detection":{"absurdities":[{"type":"retroactive_impossibility","section":"sec.2(1) and sec.2(2)","severity":"high","reasoning":"The Act is titled 'Civil Liability Act 2003' indicating assent in 2003, yet s.2(1) deems commencement to be 2 December 2002. This is a retroactive commencement. While Queensland legislation permits this, it creates a logical impossibility: how can a law that did not exist govern conduct that occurred before its passage? Section 4(2) then applies key liability provisions (ch.2 pt.1 divs 1-6) to breaches on or after 2 December 2002, meaning the Act retrospectively governs conduct that pre-dates its existence.","confidence":0.85,"description":"Retroactive commencement creates an impossibility: the Act is stated to have 'commenced on 2 December 2002' yet it received assent in 2003. Subsection (2) then lists provisions that commence 'on assent', which must be a date after 2 December 2002. This means the Act purports to have been in force before it legally existed, creating a legal fiction that is logically impossible — you cannot retrospectively impose obligations or confer rights for a period before Parliament even passed the law."},{"type":"self_contradicting","section":"sec.5(1) and sec.5(3)","severity":"medium","reasoning":"The structure of s.5 creates a carve-out-then-reinsert structure: the Act is excluded for dust and tobacco injuries (s.5(1)(c) and (d)), but then s.5(3) says 'despite' that exclusion, the Act applies for s.59A damages. This means the Act simultaneously does not apply and does apply to the same category of claims. While 'despite' is a common drafting technique, the logical result is that the Act's general exclusion is meaningless for these injury types with respect to one specific remedy, undermining the coherence of the exclusion.","confidence":0.75,"description":"Section 5(1) excludes the Act from applying to dust-related and tobacco-related injury claims, yet s.5(3) reinstates a specific head of damages (s.59A damages) for those same excluded injuries. The Act both does not apply and does apply to the same injuries, creating a partial self-contradiction that is logically incoherent — the Act excludes itself then selectively reapplies itself."},{"type":"self_contradicting","section":"sec.13(4) and sec.13(5)","severity":"medium","reasoning":"Section 13(4) expressly extends 'obvious risk' to risks that are not physically observable. Section 13(5) then carves out risks arising from hidden failures (like a cracked frame) as NOT obvious — and the example given is precisely a physically non-observable defect. While s.13(5) qualifies its carve-out ('unless the failure itself is an obvious risk'), the interaction between ss.(4) and (5) creates genuine uncertainty: a non-observable risk could be obvious under s.13(4) but not obvious under s.13(5) depending on its cause, with no clear hierarchy between the two provisions.","confidence":0.72,"description":"Section 13(4) states a risk can be 'obvious' even if it is 'not prominent, conspicuous or physically observable', while s.13(5) states a risk is NOT obvious if it arises from a hidden failure (e.g. a cracked go-kart frame 'not obvious'). These provisions pull in opposite directions: one says non-observable risks can be obvious, the other says non-observable failure-caused risks are not obvious. This creates an irresolvable ambiguity about the treatment of hidden risks."},{"type":"other","section":"sec.14(1) and sec.19(2)","severity":"low","reasoning":"Section 14 sets up a rebuttable presumption of awareness for obvious risks when the volenti defence is raised. But s.19 eliminates liability altogether regardless of awareness. This means in dangerous recreational activity cases, the plaintiff's awareness (which s.14 elaborately addresses) is completely irrelevant — s.19(2) expressly says so. The s.14 mechanism is thus rendered pointless in this context, suggesting poor coordination between divisions 3 and 4.","confidence":0.65,"description":"Section 14(1) requires a defendant to raise a 'voluntary assumption of risk' defence AND the risk must be obvious before a plaintiff is presumed aware of it. Section 19(2), by contrast, removes liability for obvious risks of dangerous recreational activities 'whether or not the person suffering harm was aware of the risk', making awareness entirely irrelevant. The elaborate s.14 awareness presumption machinery is therefore rendered superfluous in the dangerous recreational activities context, creating an internal redundancy."},{"type":"circular_definition","section":"sec.7(3) and sec.7(4)","severity":"medium","reasoning":"The drafting of ss.(3) and (4) is confused. Section 7(3) says the Act (except ch.2 pt.2 and ch.3) allows contractual freedom. Section 7(4) says s.7(3) extends to provisions applying to contractual liability. But if s.7(4) extends s.7(3) to all provisions, including those in ch.2 pt.2 and ch.3 (which s.7(3) expressly excludes), the carve-out is undermined. The interaction is internally inconsistent.","confidence":0.6,"description":"Section 7(3) excludes ch.2 pt.2 and ch.3 from the freedom of contract principle. Section 7(4) then states that s.7(3) 'extends to any provision of this Act even if the provision applies to liability in contract'. This creates a logical loop: s.7(3) carves out certain chapters from contractual freedom, but s.7(4) purports to extend s.7(3) to ALL provisions including those in contract — which would appear to override the carve-out in s.7(3), making the carve-out incoherent."},{"type":"impossible_compliance","section":"sec.33I(i)","severity":"high","reasoning":"Multiple nominees could arise from different pathways (voluntary nomination under s.33H(4) vs court-ordered trustee under s.33H(6)). These parties could be legal strangers with opposing interests, different legal representation, and conflicting factual positions. Compelling them to file 'a single defence' under s.33I(i) is practically and legally impossible where their interests diverge, potentially breaching their rights to a fair hearing and proper legal representation.","confidence":0.78,"description":"Where there is more than one nominee for an unincorporated institution, s.33I(i) requires the nominees to 'file a single defence and proceed as a single defendant.' This is impossible to comply with where nominees have conflicting interests, different insurers, or contradictory defences — a trustee nominee appointed under s.33H(6) and a person nominated under s.33H(4) may have diametrically opposed positions, yet both are legally compelled to mount a single unified defence."},{"type":"circular_definition","section":"sec.4(3)","severity":"medium","reasoning":"The commencement of ch.2 pt.2 is contingent on a proclamation under s.2(3). Section 4(3) says it applies from 'commencement of this subsection' — but s.4(3) itself is part of the main Act which commenced on 2 December 2002 under s.2(1). This creates ambiguity: does s.4(3) commence on 2 December 2002 (with the rest of the Act under s.2(1)) while ch.2 pt.2 awaits proclamation? If so, s.4(3) purports to govern the application of a part not yet in force, which is circular and potentially meaningless until proclamation.","confidence":0.65,"description":"Section 4(3) provides that ch.2 pt.2 (proportionate liability) applies to breaches of duty 'on or after the commencement of this subsection', but s.2(3) states ch.2 pt.2 commences 'on a day to be fixed by proclamation.' If no proclamation has ever been made, s.4(3) creates an application provision for a part that may have never commenced, making the application provision perpetually self-referential and potentially inoperative."}],"contradictions":[{"severity":"low","section_a":"sec.5(1)","section_b":"sec.4(1)","confidence":0.55,"description":"Section 4(1) states the Act applies to 'any civil claim for damages for harm' (subject to s.5), while s.5(1) excludes entire categories of personal injury claims. The breadth of s.4(1) and the width of the s.5 exclusions (workers' compensation injuries, dust conditions, tobacco injuries) mean the Act's stated universal application is substantially hollowed out, but the drafting structure creates interpretive uncertainty about whether s.5 operates as a true exclusion or a jurisdictional bar."},{"severity":"low","section_a":"sec.9(1)(b)","section_b":"sec.9(2)(a)","confidence":0.5,"description":"Section 9(1)(b) requires that the risk be 'not insignificant' as a threshold for breach. Section 9(2)(a) requires the court to consider 'the probability that harm would occur' as a factor. A very low probability risk could satisfy s.9(1)(b) ('not insignificant') yet when assessed under s.9(2)(a) the low probability weighs against breach. The two provisions can produce contradictory outcomes: a risk that clears the s.9(1)(b) threshold may still fail the s.9(2) balancing test, creating an internal tension between the threshold and the multi-factor assessment."},{"severity":"medium","section_a":"sec.15(1)","section_b":"sec.15(2)(c)","confidence":0.68,"description":"Section 15(1) states that no defendant owes a duty to warn of an obvious risk. Section 15(2)(c) then creates an exception for professionals (other than doctors) where the risk involves death or personal injury from provision of a professional service. However, s.15(3) immediately qualifies s.15(2) by saying it 'does not give rise to a presumption of a duty to warn.' This tripartite structure — no duty, exception restoring possible duty, qualification removing presumption of that duty — creates a logical circularity: the exception in s.15(2)(c) has unclear operative effect if s.15(3) removes any presumption it would otherwise create."},{"severity":"medium","section_a":"sec.22(1)","section_b":"sec.22(5)","confidence":0.7,"description":"Section 22(1) provides that professionals do not breach their duty if they act in accordance with widely accepted peer professional opinion. Section 22(5) then excludes this protection for liability arising from failure to give warnings, advice or information about risk. Yet giving (or failing to give) advice IS a core professional service — particularly for professionals like lawyers, financial advisers, and engineers whose entire service consists of giving advice. Section 22(5) thus threatens to swallow s.22(1) for entire professions whose primary function is advising."},{"severity":"medium","section_a":"sec.32A","section_b":"sec.32D and sec.32E","confidence":0.72,"description":"Section 32A states a concurrent wrongdoer cannot be required to contribute to or indemnify another concurrent wrongdoer. Sections 32D and 32E override this for fraudulent or intentional wrongdoers, imposing several liability for all damages. However, this creates an asymmetry: a fraudulent wrongdoer is severally liable for ALL damages including those attributable to non-fraudulent defendants, yet those non-fraudulent defendants still cannot seek contribution from the fraudulent one (s.32A's prohibition is only overridden from the fraud defendant's side). Whether the innocent concurrent wrongdoer can recover from the fraudulent one is left unclear."},{"severity":"medium","section_a":"sec.33F(3)(d)","section_b":"sec.33G(3)(d)","confidence":0.63,"description":"Both sections allow the institution/current office holder to rely on defences available to the 'former office holder.' However, the former office holder may have had personal defences (e.g. limitation periods running from their personal knowledge, or personal immunities) that would be meaningless or inapplicable when attributed to a corporate institution or a different individual. Transferring purely personal defences to an entity or different person is logically incoherent."},{"severity":"medium","section_a":"sec.33H(5)-(6)","section_b":"sec.33B(2)","confidence":0.6,"description":"Section 33H(6) allows a court to order a trustee of a former associated trust to become the institution's nominee if the trust was dissociated to avoid liability. Section 33B(2) then expands the definition of 'associated trust' in divisions 4 and 5 to include trusts subject to such orders. This creates a definitional loop: a trust becomes an 'associated trust' by court order under s.33H(6), but the pre-condition for making that order under s.33H(6)(a) is that it 'is, or used to be, an associated trust' — determined under s.33B(1). The circularity could produce situations where a trust that would not qualify as an associated trust under s.33B(1) nonetheless becomes one by court order, expanding liability in a way not clearly contemplated."}]},"summary":{"complexity_score":9,"scope_assessment":{"changed":true,"description":"The Act began as a tort reform response to the early 2000s insurance and liability crisis (the Ipp Report reforms), primarily focused on negligence, standard of care, and damages caps. Over time its scope expanded substantially — proportionate liability provisions were added or restructured in 2004, and an entirely new regime for institutional liability for child sexual and physical abuse was inserted in 2019 (Part 2A), reflecting the Royal Commission into Institutional Responses to Child Sexual Abuse. This transformed the Act from a primarily negligence-reforming instrument into a broader civil liability statute addressing institutional accountability, trust asset accessibility, and survivor rights — well beyond its original intent."},"complexity_factors":["Multiple chapters and parts with different commencement dates and transitional provisions, requiring careful temporal analysis for any given claim","Overlapping and interacting exclusions (workers' compensation, dust diseases, tobacco) that require cross-referencing multiple external Acts","Proportionate liability regime (Part 2) introduces complex multi-party apportionment rules with numerous exceptions for fraud, intent, and misleading conduct","Institutional child abuse provisions (Part 2A, inserted 2019) are structurally intricate, dealing with unincorporated bodies, associated trusts, nominees, and successor liability across time","Distinction between incorporated and unincorporated institutions for the purposes of abuse claims requires different legal pathways","Associated trust provisions require analysis of trust law concepts (control, beneficial enjoyment, trustee obligations) embedded within a tort statute","Standard of care for professionals involves a peer professional opinion test with multiple qualifications and a separate regime for doctors versus other professionals","Obvious risk doctrine interacts with both the assumption of risk division and the dangerous recreational activities division, requiring careful sequential analysis","Contributory negligence can reduce damages to zero, introducing a substantive strategic element into every claim","The Act expressly states it is NOT a codification, meaning common law still operates alongside it — practitioners must know both","Multiple amendments over time (2003, 2004, 2007, 2010, 2013, 2019) create layers of law with different dates of operation","Different provisions apply to different dates of breach, creating parallel legal regimes within the same statute"],"plain_english_summary":"## Queensland's Civil Liability Act 2003 — What It Does and Why It Matters\n\nThis is Queensland's primary law governing when and how much compensation you can claim when someone's negligence (carelessness) or breach of duty causes you harm. It affects virtually every Queenslander, because it sets the rules for personal injury lawsuits, professional negligence claims, and institutional child abuse cases.\n\n### Key things this law does:\n\n**1. Sets the standard for negligence**\nBefore someone is legally 'at fault', the risk of harm must have been reasonably foreseeable, not insignificant, and something a reasonable person would have taken steps to prevent. Courts weigh up how likely harm was, how serious it could be, how easy prevention would have been, and the social value of the activity.\n\n**2. 'Obvious risks' — you may not be able to sue**\nIf you voluntarily engage in a dangerous recreational activity (like extreme sports) and get hurt from an obvious risk, you generally *cannot* sue for compensation. The law presumes you accepted the risk. Similarly, no one is required to warn you about risks that are plainly obvious.\n\n**3. Professionals get some protection**\nDoctors, lawyers, engineers and other professionals (called 'professionals') are not automatically liable for bad outcomes if they followed practices widely accepted by their peers as competent. However, this protection does *not* apply to failures to warn patients about risks — doctors must still tell patients what a reasonable person in their position would want to know.\n\n**4. Limits on suing for economic loss (proportionate liability)**\nIf multiple people are responsible for your financial loss or property damage, each is only liable for *their share* of the blame — not the full amount. This protects defendants from being forced to pay 100% when others were also at fault. (Exception: fraudsters or people who deliberately caused harm must pay the full amount.)\n\n**5. Your own fault can reduce or kill your claim**\nIf you were partly responsible for your own injury (called 'contributory negligence'), your compensation can be reduced — or even wiped out entirely — by up to 100%.\n\n**6. Child abuse by institutions — major protections for survivors**\nAdded in 2019, this is one of the most significant parts of the Act. Schools, churches, sporting clubs, and other organisations that have contact with children have a **legal duty** to take all reasonable steps to prevent abuse. If abuse occurs, the institution is *presumed* to have failed in that duty unless it can prove otherwise. Survivors can sue the institution directly, even if it was unincorporated (like a church or club without a formal company structure) at the time — the Act provides mechanisms to identify a proper defendant and access the institution's assets, including associated trusts, to pay compensation.\n\n**7. Workers' compensation carve-out**\nThis Act does *not* apply if your injury is covered by workers' compensation (WorkCover). There are separate laws for that. Similarly, dust diseases (like asbestosis) and tobacco-related injuries follow different rules.\n\n**8. Good Samaritans and emergency responders get protection**\nPeople providing first aid in emergencies, and organisations that provide public safety services, are protected from being sued — as long as they act in good faith and don't show reckless disregard for safety.\n\n### Who does this affect?\n- **Injury victims** suing for compensation\n- **Businesses, professionals, and organisations** defending negligence claims\n- **Survivors of institutional child abuse** seeking justice\n- **Recreational activity providers** (gyms, adventure parks, sports clubs)\n- **Doctors and other professionals** facing malpractice claims\n- **Queensland courts** — which must apply these rules in every relevant case"},"kimi_summary":{"_metrics":{"completionTokens":1127},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The Act has expanded significantly beyond its original 2003 scope. The most substantial addition is Part 2A (institutional liability for child abuse, 2019), which created an entirely new liability framework for historical abuse claims, including novel mechanisms to sue unincorporated institutions and pierce trust structures. Other major expansions include: the 2004 proportionate liability scheme (Part 2); 2008 food donor protections; 2010 apology protections and gratuitous domestic services damages; and 2016 integration with the National Injury Insurance Scheme. The original Act was primarily about negligence reform — it now encompasses institutional accountability, insurance scheme coordination, and complex damages structures."},"complexity_factors":["Multiple commencement dates with different provisions applying to breaches of duty at different times (ss 2, 4)","Extensive cross-referencing to other Queensland Acts (Workers' Compensation, Motor Accident Insurance, National Injury Insurance, Fair Trading, etc.)","Nested definitions and conditional application rules throughout (e.g., 'apportionable claim' definition in s 28 with multiple exclusions)","Complex transitional provisions in Chapter 5 with retrospective and prospective operation (ss 76–89)","Part 2A on institutional child abuse introduces novel legal concepts including 'associated trusts', 'nominees', and continuity rules for unincorporated bodies","Multiple damages caps and indexation mechanisms requiring Ministerial notices (ss 54, 58, 62, 64, 75)","Proportionate liability scheme (Part 2) with 22 sections including complex exceptions for fraud, intentional acts, and misleading conduct (ss 32D–32F)","Presumptions and rebuttable presumptions for intoxication and criminal behaviour (ss 45–49)","Structured settlement framework with court notification requirements (ss 64–67)","Injury scale value system for general damages with regulatory components (ss 61–62)"],"plain_english_summary":"This is Queensland's **Civil Liability Act 2003**, a comprehensive law that governs how courts handle claims for damages when someone suffers harm due to another person's fault.\n\n**What it does:**\n\nThe Act sets the rules for **negligence claims** — when someone sues because they were injured or suffered loss due to another person's failure to take reasonable care. It covers everything from car accidents and medical malpractice to injuries in public places.\n\n**Key areas include:**\n\n- **Standard of care** (Chapter 2, Part 1): Establishes when someone has breached their duty of care — they must have failed to take precautions against a foreseeable and significant risk that a reasonable person would have addressed.\n\n- **Causation** (Section 11): Requires proof that the breach actually caused the harm, with special rules for exceptional cases where direct causation is hard to prove.\n\n- **Assumption of risk** (Sections 13–16): Protects defendants when the risk was obvious to a reasonable person, or when the harm resulted from an inherent risk that couldn't be avoided.\n\n- **Dangerous recreational activities** (Section 19): Provides strong protection for organisers of risky leisure activities like adventure sports.\n\n- **Professional liability** (Sections 21–22): Sets special rules for doctors and other professionals — doctors must give proper warnings about treatment risks, and professionals generally won't be liable if they followed widely accepted peer practice.\n\n- **Proportionate liability** (Part 2): For economic loss claims only, replaces \"joint and several liability\" (where one defendant could be forced to pay everything) with proportional responsibility — each defendant pays only their fair share.\n\n- **Institutional liability for child abuse** (Part 2A, added 2019): A major reform making organisations (schools, churches, sports clubs, etc.) liable when children under their care are abused by people associated with the institution. Includes special rules to overcome legal barriers like expired time limits and unincorporated structures.\n\n- **Public authority protection** (Part 3): Limits liability for government bodies, particularly for road maintenance and resource allocation decisions.\n\n- **Volunteer and food donor protection** (Division 2): Shields volunteers and food donors from personal liability when acting in good faith for community purposes.\n\n- **Damages caps and restrictions** (Chapter 3): Limits certain damages — no exemplary/punitive damages for personal injury (except intentional harm or sexual assault), caps on loss of earnings (3 times average weekly earnings), restricts damages for gratuitous care, and creates a structured settlement framework.\n\n- **Behaviour-based exclusions** (Part 4): Reduces or eliminates damages for people injured while committing crimes or when intoxicated.\n\n- **Apologies and expressions of regret** (Chapter 4): Protects apologies from being used as admissions of liability.\n\n**Who it affects:**\n\nAnyone making or defending a personal injury claim in Queensland, including injured individuals, insurers, businesses, professionals, government bodies, volunteers, and institutions responsible for children.\n\n**Why it matters:**\n\nThis Act fundamentally reshaped Queensland's personal injury law, making it harder to sue in some areas (obvious risks, recreational activities) while creating new accountability in others (institutional child abuse). It balances compensation for injured people against concerns about excessive litigation and insurance costs."},"flash_summary":{"complexity_score":8,"scope_assessment":{"changed":false,"description":"The supplied text sets out the Act’s present scope and its statutory exceptions (for example, exclusions where workers’ compensation applies (s 5) and the parts that apply only to breaches after specified dates (s 4)). This analysis uses the provisions as provided; the original legislative intent prior to amendments is not contained in the supplied text, so no change of scope relative to an earlier intent can be determined from the material supplied."},"complexity_factors":["Multiple interacting parts with many cross‑references (e.g. interplay with workers’ compensation laws, Motor Accident Insurance Act, National Injury Act and other statutes) (s 5; ss 52A–52C).","Detailed, separate schemes for different subject matter (proportionate liability pt 2; institutional child abuse pt 2A; personal injury damages ch 3).","Statutory presumptions and mandatory percentage reductions (intoxication, criminal conduct) that alter common‑law allocation rules (ss 45, 47–49).","Numerical injury scale and administrative indexation mechanism requiring Ministerial notices and court implementation (ss 61–62; s 75).","Extensive procedural and disclosure obligations (concurrent wrongdoer duties s 32; institution/trust disclosure s 33H).","Multiple exceptions and carve‑outs (e.g. volunteers/food donors protections with multiple exclusions s 38–44; proportionate liability exceptions s 28).","Transitional and retrospective provisions for particular amendments increase interpretive complexity (ch 5, multiple sections).","Substantive variation across areas of law (civil liability, evidence admissibility for apologies, structured settlements, limits on jury trials) requiring specialists across fields to apply the Act coherently (chs 2–4)."],"plain_english_summary":"What this law does, mechanically\n\n- Establishes the legal rules a court must use when deciding civil claims for damages for harm (subject to the exclusions in s 5). (s 4)\n- Sets the test for breach of duty (foreseeability, non-insignificance and what a reasonable person would have done) and lists the factors a court must consider (probability, seriousness, burden of precautions, social utility). (s 9)\n- Lays out rules on causation (factual causation and the scope of liability) and places the burden on the plaintiff to prove causation. (ss 11–12)\n- Creates statutory presumptions and limits about assumption of risk, obvious risks, inherent risks and recreational activities (divisions 3–4: ss 13–19). (ss 13–19)\n- Provides special duties and standards for professionals and doctors (what doctors must warn patients of; reliance on peer professional opinion for non‑warning matters). (ss 21–22)\n- Reframes contributory negligence (same reasonable‑person standard) and allows a court to reduce damages up to 100% in appropriate cases. (ss 23–24)\n- Introduces a scheme of proportionate liability for economic loss or property damage (apportionable claims), limiting a concurrent wrongdoer’s liability to its share and establishing duties to identify other potential wrongdoers; contains exceptions (e.g. fraud, intentional conduct, some statutory causes). (pt 2, ss 28–33F)\n- Creates a separate statutory duty and proof structure for institutions to prevent child abuse, sets rules for suing unincorporated bodies, nominators and trustees, and allows recovery from institution and associated trusts under specified conditions. (pt 2A, ss 33A–33N)\n- Limits or clarifies liability for public authorities (resource limits, standard of reasonableness) and for road authorities in certain cases. (ss 34–37)\n- Grants protection from civil liability to food donors and volunteers in stated circumstances, but preserves exclusions (required insurance, motor accident/CTP coverage, criminal acts, intoxication, acting outside authorised scope). (div 2, ss 38–44)\n- Provides that courts may refuse damages in cases where the injured person was committing an indictable offence at the time (but allows discretionary exceptions and mandated percentage reductions if damages are awarded). (s 45)\n- Creates statutory presumptions and minimum percentage reductions for damages where intoxication or reliance on an intoxicated person is involved, with higher minimum reductions for serious intoxication in motor accidents. (ss 46–49)\n- Sets ceilings and rules for awards of various heads of damages for personal injury (no punitive/exemplary damages except for specified intentional or sexual misconduct, caps on loss of earnings and servitium, rules for gratuitous services, discounting future losses by a prescribed rate, limits on interest). (chs 3–3 pt 3, ss 50–60)\n- Requires courts to assess an injury on a 0–100 injury scale and mandates Ministerial notices that fix base and variable amounts for each injury scale value (which the court must use to calculate general damages). (ss 61–62; s 75)\n- Encourages structured settlements (notice requirement for large future loss awards; courts can approve structured settlement orders; lawyers must advise plaintiffs). (ss 63–67)\n- Makes expressions of regret and apologies inadmissible as evidence of fault or liability in many civil proceedings. (ss 68–72D)\n- Requires personal injury claims to be decided by judge alone (no jury). (s 73)\n- Grants regulation‑making power to the Governor in Council and requires the Minister to update indexed amounts annually. (ss 74–75)\n\nWho this affects (principal parties and decision‑makers)\n\n- Plaintiffs (injured persons) — must prove breach and causation and may face presumptions (e.g. intoxication, assumption of obvious risk) or statutory limits on certain heads of damages (ss 4, 11–12, 13–16, 46–49, 54–59A).\n- Defendants (individuals, professionals, businesses, institutions, public authorities) — face statutory standards of care (s 9), special professional rules (ss 21–22), proportionate liability rules for economic/property claims (pt 2), and specific protections or exposures (e.g. volunteers and food donors, pt 3 div 2; institutions for child abuse, pt 2A).\n- Courts — must apply the statutory tests, presumptions and procedures (including the injury scale and Ministerial notices), decide apportionment under the proportionate liability scheme, and follow rules on admissibility of apologies/regret (multiple provisions throughout chs 2–4).\n- Ministers and regulators — exercise choice about indexation and dollar amounts for calculation of damages (s 75), and the Governor in Council may make regulations that create offences or fix fees (s 74).\n- Insurers and trustees — affected by limits on recoverable heads of damage and by provisions that allow recovery from associated trusts or nominee trustees in abuse claims (pt 2A; ss 33J–33M).\n\nWhy this matters (claimed purposes and the operational trade‑offs)\n\n- Official stated purposes include clarifying standards of negligence and limiting uncertainty and excessive awards in personal injury litigation (see, for example, the structured approach to general damages (ss 61–62) and caps on loss of earnings (s 54)). Those aims are implemented by: mandatory judicial steps (injury scale assessment, Ministerial amounts) and statutory ceilings (s 54; s 58 limits; ss 59–59A conditions).\n\n- Costs and who ultimately pays:\n  - Caps, indexation and limits (ss 54, 58, 75) mechanically reduce potential monetary exposure for defendants and their insurers, shifting a portion of future or higher claims’ cost away from those defendants/insurers and (all else equal) towards injured persons who face lower awards. Insurers therefore have a clearer maximum exposure for specified heads of loss, which tends to affect pricing and provisioning.\n  - Protections for volunteers and food donors (ss 38–39, 38A) remove or reduce liability risk for those actors; plaintiffs cannot recover against those actors in the defined circumstances, which shifts loss-bearing to other parties or insurance pools where available (see s 38B–38C for exceptions).\n\n- Incentives and behaviour:\n  - The proportionate liability regime (pt 2, ss 28–33) changes incentives for multi‑party litigation: defendants who are concurrent wrongdoers are liable only for their proportionate share (s 31), and concurrent wrongdoers must disclose information to claimants (s 32). That encourages early identification and joinder (s 32, s 32C) and reduces risk of a single defendant bearing full liability where responsibility is shared; it may increase litigation complexity and discovery burden.\n  - The child‑abuse institutional duty (pt 2A, ss 33D–33E) reverses the usual burden: when abuse occurs, an institution is taken to have breached unless it proves it took all reasonable steps (s 33E). That creates a strong incentive for institutions to document, assess and resource safeguarding measures, and to preserve or disclose records (s 33H procedural powers to identify associated trusts and financial capacity).\n  - Rules making apologies and regret inadmissible (ss 70–72D) reduce the legal risk of making conciliatory statements; that mechanically lowers the perceived litigation cost of offering expressions of sympathy and may increase the use of conciliatory communication.\n  - Limits and presumptions tied to intoxication and criminal conduct (ss 45, 46–49) alter plaintiff/defendant strategic calculations and can produce automatic percentage reductions unless rebutted.\n\n- Compliance burden and administrative discretion:\n  - Courts must apply the injury scale and use Ministerial notices to convert a 0–100 score into dollar awards (ss 61–62). That imposes procedural steps and reliance on administrative instruments (s 75). The Minister’s annual notice fixes amounts and is subordinate legislation (s 75), creating executive discretion over dollar‑values used by judges.\n  - The regime for proportionate liability requires claimants to join all reasonably suspected defendants and places disclosure obligations on concurrent wrongdoers (s 32). Failure to comply can lead to cost orders or apportionment consequences (s 32(4)–(5)).\n  - For institutional abuse claims, courts may compel identification of associated trusts and financial disclosures (s 33H(7)), and trustees/nominees have defined rights and potential exposure (ss 33K–33M). Those provisions create evidential and administrative work for institutions, trustees and courts.\n\n- Trade‑offs and unintended consequences to watch (mechanisms, not judgments):\n  - Concentrated benefits: statutory caps, volunteer/food donor protections and limits on public authority liability provide clear, concentrated advantages to particular groups (professionals, institutions, volunteers, public authorities) (e.g. ss 22, 26–27, 38–39, 31, 35–37).\n  - Diffuse costs: reductions in potential awards and limits on recoverable heads of loss may distribute costs across injured persons (smaller awards), insurers (changed pricing/coverage decisions), and taxpayers (where public authorities shift service provision or care obligations), depending on specific coverages and situations (ss 52B–52C, 54, 58, 62).\n  - Substitution effects: plaintiffs barred from recovery against certain actors (food donors, volunteers) or limited in damages may pursue other defendants, rely on statutory compensation schemes (e.g. workers’ compensation; s 5), or shift claims to insurers. The Act expressly preserves other entitlement routes where relevant Acts apply (s 5; pt 2A cross‑references).\n  - Implementation risk: complex cross‑references with other statutes (e.g. liability excluded where workers’ compensation applies (s 5); interaction with Motor Accident Insurance Act and National Injury Act (ss 52A–52C)) and numerous transitional provisions add legal complexity for litigants and courts.\n\nWho decides and what changes in behaviour are required\n\n- Courts apply the statutory tests, calculate injury scale values and apply Ministerial amounts (ss 61–62). Courts also have discretion about apportionment and some reductions (ss 31, 24, 45(2)).\n- The Minister fixes indexed monetary parameters annually (s 75), and the Governor in Council may make regulations (s 74). These executive actions directly affect award sizes and procedural detail.\n- Defendants (including institutions, professionals, volunteers, food donors) will have to adapt: document compliance, implement risk controls, consider insurance arrangements, and respond to disclosure/nomination duties (s 32; pt 2A provisions). Plaintiffs must navigate statutory presumptions, caps and proof requirements (ss 11–12; ss 46–49; ss 54–59A).\n\nPrimary legal friction points (sections cited)\n\n- Scope and exclusions: application generally (s 4) but exclusions for workers’ compensation, dust diseases and tobacco‑related injuries (s 5).\n- Standard of care and breach: s 9; causation and onus: ss 11–12.\n- Proportionate liability: ss 28–33F (apportionable claims, concurrent wrongdoers, disclosure duties, exceptions for fraud/intent/misleading conduct s 32D–32F).\n- Institutional child abuse framework: ss 33A–33N (duty, evidential onus, nomination of nominee, associated trusts, satisfaction of liability).\n- Damages mechanics and caps: ss 52–60, ss 61–62, s 75 (indexation and ministerial amounts).\n- Protections for volunteers and food donors: ss 38–44.\n- Apologies/expressions of regret inadmissible: ss 70–72D.\n\nThis summary describes how the Act operates and the concrete mechanisms it creates (statutory tests, presumptions, caps, duties to disclose, executive indexation and court procedures). It does not presume or assess the policy merits of those mechanisms; it identifies who bears costs, who decides, and what behavioural and compliance consequences flow from particular provisions (with section references as indicated)."}},"importantCases":[],"_links":{"self":"/api/acts/civil-liability-act-2003","history":"/api/acts/civil-liability-act-2003/history","analysis":"/api/acts/civil-liability-act-2003/analysis","conflicts":"/api/acts/civil-liability-act-2003/conflicts","importantCases":"/api/acts/civil-liability-act-2003/important-cases","documents":"/api/acts/civil-liability-act-2003/documents"}}