Civil Law (Wrongs) Act 2002

The Act affects a broad range of individuals, organisations, and entities in the Australian Capital Territory. Primary affected parties include those who may incur or claim civil liability for wrongs.

Individuals are affected as claimants or defendants. Claimants for personal injury or death include injured persons, their estates, or family members (defined broadly in s 23 to include domestic partners, children, parents, siblings, and those acting in loco parentis). For mental harm (pt 3.2), family members witnessing events can claim (s 36). Volunteers (s 6) and good samaritans (s 5(4)) benefit from protections when acting honestly without recklessness. Food donors (s 11A) are shielded if food is fit and instructions given (s 11B). Participants in equine activities (sch 3 s 3.1) face limited liability for inherent risks if warnings are provided (s 3.3-3.4).

Defendants include wrongdoers in negligence (ch 4), where standard of care applies to all (s 42), public or other authorities (ch 8, defined in s 109 as Territory, administrative units, territory authorities, or prescribed entities), with principles considering resources (s 110) and nonfeasance protections (s 113). Organisations face vicarious liability for child abuse by employees or akin persons (pt 8A.1A, ss 114BC-114BE), including administrative units and unincorporated bodies (s 114BB). For defamation (ch 9), publishers (s 116) face rules on serious harm (s 122A), with exemptions for digital intermediaries providing caching, conduit, storage, or search services (div 9.2.2A, ss 122C-122D) if roles are limited and no encouragement or editing occurred.

Professionals and occupational associations are affected by sch 4, enabling schemes limiting liability (div 4.2.1-4.2.3) for members if insured or with assets (ss 4.17-4.19), with the council (s 4.36) supervising. Insurers are impacted by attachment of insurance money (pt 15.3, ss 206-209), charging amounts on policies.

Common carriers (pt 11.2) and traveller accommodation providers (pt 11.1) have mitigated strict liabilities (ss 151-154 for inns, ss 159-167 for carriers). Employers face rules on misrepresentation (s 178) and vicarious liability.

Courts, including tribunals and arbitrators (defined variously, e.g. s 19 for pt 2.5, s 49 for ch 5), enforce the Act, with powers for costs (s 139K), preliminary discovery (s 133A), and setting aside settlements (s 114K). The public is affected as consumers of services, protected by standards in sch 4 and pre-court procedures (ch 5).

Transitional provisions (chs 19-21) affect parties to pending proceedings, applying new rules on absolute privilege (s 254), digital intermediaries (s 257), and child abuse (s 262) to undecided cases.

Overall, the Act impacts anyone involved in civil disputes, from individuals in daily interactions to large organisations, governments, and legal professionals, as grounded in its definitional sections and application provisions like s 41 for negligence and s 50 for claims.

The Act establishes numerous duties and rights, each grounded in specific provisions.

Rights include the right to claim damages for wrongful death (s 24), where if an act would have entitled the deceased to personal injury damages, the liable person remains liable despite death. Family members have rights to proportional damages (s 25), including funeral and medical expenses (s 25(4)), with cultural considerations in assessing reasonableness (s 25(6)). For mental harm, rights exist to recover for nervous shock (s 33) if duty under s 34 is met, extending to parents, partners, or family members present (s 36(1)).

In negligence, plaintiffs have the right to prove causation on the balance of probabilities (s 46), with general principles in s 45 requiring necessary condition and scope of liability. Contributory negligence does not defeat claims entirely unless just and equitable for 100% reduction (s 47). For personal injury, claimants have rights to pre-court processes, including adding respondents (s 55) and enforcing compliance (s 78), with urgent proceedings allowed (s 79).

Defamation rights are limited to living persons and non-excluded corporations (ss 121-122), requiring serious harm (s 122A). Plaintiffs can seek remedies like damages rationally related to harm (s 139E), with mitigation factors (s 139I). Offers to make amends provide rights to corrections, apologies, or compensation (s 127), with acceptance preventing further actions (s 129).

Volunteers and good samaritans have rights to protection from liability (ss 5, 8), shifting to organisations (s 9). Food donors have rights if conditions met (s 11B). Organisations responsible for children have duties but also rights to defences (s 114H).

Public authorities have rights to consideration of resources in duty assessments (s 110) and protections for regulatory functions (s 112). For institutional child abuse, plaintiffs have rights to proceed against nominated defendants or related trusts (ss 114D-114E), with courts able to set aside agreements if legal barriers existed or terms unjust (s 114K), considering factors like bargaining position (s 114K(4)).

Duties include the duty of care in negligence (s 42), requiring reasonable precautions (s 43). Respondents in claims must respond to notices (s 52), attempt resolution (s 61), and disclose documents (s 68), with offences for non-disclosure (s 74) or false statements (s 80). In defamation, publishers must consider concerns notices (s 124B) and have duties under qualified privilege (s 139A).

For professional standards (sch 4), occupational associations have duties to implement risk management (s 4.32), report (s 4.33), and comply with schemes (s 4.24). The council has functions to advise, monitor, and publish (s 4.37).

Insurers must respect charges on policies (s 206), with enforcement rights (s 207). Common carriers have duties despite notices (s 167).

These duties and rights are explicitly stated in the text, ensuring balance, with exceptions like no liability for terrorism (s 38) or offences (s 94).

The Act contains limited penalties, primarily for non-compliance with procedural or disclosure requirements, enforced through courts.

Key penalties are in ch 5. Section 74 creates an offence for parties to motor accident claims failing to give required documents, films, or information, with a maximum of 100 penalty units. Section 80 offences false or misleading statements in notices or documents under ch 5, with 100 penalty units, imprisonment for 1 year, or both for knowledge-based offences, or 50 penalty units and 6 months for recklessness. These apply to material particulars (s 80(2)-(6)).

In sch 4, s 4.29 requires notification of limitation of liability, with offence for non-compliance under s 4 (applying Criminal Code). Section 4.50 requires occupational associations to provide information to the council, an offence with 5 penalty units (s 4.50(2)).

Enforcement is primarily civil. Courts can enforce ch 5 compliance via orders for stated action within time, with costs (s 78). For non-complying notices, courts may award costs for noncompliance (s 62(1)) or order indemnity basis if interests of justice require (s 139K(2)). In proportionate liability, courts apportion responsibility (s 107F), excluding certain wrongdoers (s 107E).

For defamation, costs can be indemnity basis if settlement offers unreasonably rejected (s 139K(2)). Damages are enforced as judgments, with rational relationship to harm (s 139E), no exemplary damages (s 139H).

In professional standards, schemes limit liability (s 4.24), enforced by courts not awarding above limits if conditions met (ss 4.17-4.19). Council can require information (s 4.50), with offences.

For child abuse, courts appoint defendants (s 114E), set aside agreements (s 114K), with effect only for the applicant (s 114M).

Insurance money is charged (s 206), enforceable as if against insured (s 207), with insurer protections (s 208).

Penalties units are $160 for individuals, $810 for corporations per Legislation Act 2001 s 133 (noted in republication). Criminal Code applies to listed offences (s 4).

Enforcement emphasises pre-court resolution (ch 5), with court powers for urgent cases (s 79) or setting aside (s 114K). No penalties in core liability chapters, focusing on civil remedies and limits.

The Act interacts extensively with other legislation, as explicitly referenced throughout.

The Legislation Act 2001 is central, with s 4 applying the Criminal Code to offences like s 74, s 80, sch 4 s 4.29, and s 4.50. Dictionary definitions apply (s 2), notes are explanatory (s 3). Penalty units are per s 133 (republication note). Editorial changes under pt 11.3 (republication note).

Motor Accident Injuries Act 2019 interacts heavily. Claims under ch 5 apply to motor accidents (s 50(1)), with specific notice times tied to WPI assessments (s 51(4), referencing ss 133, 141, 157, 164, 213). No damages for gratuitous care (note to s 64). Chapter 4 negligence applies except for workers' compensation (s 41(2)). Terrorism exclusion applies despite s 295 (s 38(3)). Proportionate liability excludes ch 5 claims (s 107B(4)(b)). Public authorities chapter excludes ch 5 claims (s 108(3)(a)). Damages pt 7.1 applies to ch 5 (s 93(1)).

Workers Compensation Act 1951 is excluded from many provisions: ch 4 (s 41(2)), pt 7.1 (s 93(2)), ch 5 (s 50(2)(a)), ch 7A (s 107B(4)(d)), ch 8 (s 108(3)(b)). Terrorism exclusion preserves employer compensation liability (s 38(2)(b)). Mental harm extensions do not affect it (note to s 36).

Limitation Act 1985 interacts with child abuse claims having no limitation (note to s 51(1)), special provisions for children (s 50(2)(b)), and notices (s 51(7)). Survival of actions interacts (s 18).

Human Rights Act 2004 is noted in s 115 for privacy, reputation, and expression rights, subject to reasonable limits (s 28).

Food Act 2001 defines terms for pt 2.2A (s 11A, referencing ss 8, 12, 13).

Building Act 2004 pt 9 limits effect of pt 2.5 (s 22(2)).

Discrimination Act 1991 and Workers Compensation Act 1951 exclude pt 2.3 apologies (s 12(2)).

Corporations Act is referenced for associated entities (s 116), displacement in s 114G(4) for related trusts.

National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cwlth) is referenced in s 114L(3) for deeds of release.

Evidence Act 2011 s 131 does not prevent evidence in setting aside applications (s 114K(5)).

The Act's transitional provisions (chs 19-21) interact with prior law, applying amendments to pending cases (e.g. s 262 for pt 8A.1A).

Professional standards sch 4 interacts with insurance and other laws, characterising as substantive (s 4.57), no contracting out (s 4.58).

This web of interactions ensures coherence, with specific savings like s 18(3) for Motor Accident Injuries Act.

The republication reflects amendments up to A2025-32, with transitional chapters detailing recent changes.

Chapter 19 addresses the Civil Law (Wrongs) Amendment Act 2024's absolute privilege amendments (s 254), applying to post-commencement actions for publications to police officials or per sch 1A (e.g. bar association, human rights commission, integrity commission, inspector of correctional services, law society, work health and safety commissioner, official visitors, public trustee and guardian, sentence administration board). It continues existing law for pre-commencement actions, expiring after three years (s 255). This change expands absolute privilege (s 137(2)(ba) and (d)), to protect reporting to integrity bodies, likely to encourage transparency and complaints without fear of defamation suits.

Chapter 20 covers the same 2024 Amendment Act's changes on digital intermediaries (s 257), offers (s 258), preliminary discovery/non-party orders (s 259), and document giving/service (s 260). These apply to post-commencement actions, with existing law for pre-commencement, including linked proceedings (s 257(3)(b)). Digital intermediary exemptions (div 9.2.2A) and early determinations (s 122E) address online publications, reflecting technological changes to balance reputation with digital platform realities. Offer amendments update concerns notices (s 124A) and content (s 127), to streamline resolutions. Service via electronic means (s 139O) modernises procedures. Expiry after three years (s 261).

Chapter 21 for the 2025 (Organisational Child Abuse Liability) Amendment Act applies pt 8A.1A to pending undecided proceedings (s 262), expiring after three years (s 263). This introduces vicarious liability for organisations responsible for children (s 114BD-114BE), defining 'employee' broadly (s 114BC) to include akin persons. It responds to royal commissions and societal needs to hold institutions accountable for historical abuse, facilitating claims against unincorporated bodies via nominations or trusts (pt 8A.2) and setting aside unjust settlements (pt 8A.3).

These changes, per the republication for A2025-32 and A2025-29, broaden scope to address contemporary issues like digital defamation, institutional accountability, and procedural efficiency, as the Act's original consolidation intent has evolved through targeted reforms.

The Act references court challenges in specific contexts without detailing particular cases, grounding analysis in text.

In sch 4 pt 4.2 div 4.2.1, s 4.12 allows challenges to schemes for noncompliance, with Supreme Court powers to declare void, stay commencement, or give directions. Interstate schemes can be challenged for corresponding law failures but not content under div 4.2.2 (s 4.12(6)). This provides a mechanism for judicial review of professional standards schemes (s 4.4-4.10), potentially controversial if limiting liability unduly affects consumers.

For defamation, s 122E requires early determination of digital intermediary exemptions, with good reasons for postponement including costs, resources, technical issues (s 122E(2)(a)). Courts must consider objects of ch 9 (s 115) and privacy/safety in preliminary discovery orders for posters (s 133A(2)). Controversies may arise in balancing expression (Human Rights Act 2004 s 16 noted in s 115) with reputation (s 12), especially for digital matter.

In pt 8A.3, courts set aside abuse settlement agreements if legal barriers existed or terms unjust (s 114K(3)), considering amount paid, bargaining, conduct (s 114K(4)), with Evidence Act 2011 s 131 not applying (s 114K(5)). This could generate challenges on what constitutes 'just and reasonable' or 'legal barriers'.

Chapter 8 limits public authority liability, with s 110 principles on resources not open to challenge for general allocation, potentially controversial in resource-constrained decisions (s 112 for regulatory functions).

No specific court challenges are detailed in the text beyond these mechanisms. Transitional provisions (chs 19-21) apply amendments to pending cases (e.g. s 257(3) for linked pre/post-commencement actions), which may lead to disputes on applicability.

The Act's interaction with other laws, like no effect on certain provisions (s 209 for workers' compensation), avoids controversies in overlapping regimes.

Most practitioners miss several nuances that can significantly impact outcomes.

First, in pt 2.4, damages for surviving actions exclude pain and suffering, expectation of life, and earning capacity if death resulted (s 16(3)), but an exception for asbestos-related diseases requires pre-death notice under s 51 and contribution to death (s 16(4)). Many overlook this, leading to under-claimed estates. Funeral expenses can be reduced for age/health (s 16(6)), with religious/cultural factors mandatory (s 16(7)).

In mental harm (pt 3.2), pure mental harm requires recognised psychiatric illness (s 35(1)), with duty only if normal fortitude person would foresee (s 34(1)), but known vulnerability overrides (s 34(4)). Consequential harm links to bodily injury nature (s 34(3)). Extensions in s 36 for shock to family if within sight/hearing are often misapplied without verifying presence.

Pre-court procedures (ch 5) have strict timelines: 9 months/4 months for non-motor (s 51(3)), 3 months for motor with WPI triggers (s 51(4)), reasonable time for child abuse (s 51(5)). Failure requires reasonable excuse (s 51(7)), continuing obligation (notes to ss 51(5),(7)). Non-compliance bars proceedings unless waived or court authorised (s 59), with costs penalties (s 62).

Defamation gotchas include the single cause of action rule (s 120), preventing multiple suits for same matter imputations. Corporations limited to excluded ones (s 121), no actions for deceased (s 122). Serious harm is a judicially determined element (s 122A(3)), potentially early dismissal (s 122A(4)-(7)). Digital intermediary exemptions (s 122C) require no initiation, selection, encouragement, editing, or promotion (s 122C(1)(c)), but action required by law doesn't count (s 122C(2)). Early determination mandatory unless good reasons (s 122E(1)(b)).

Proportionate liability (ch 7A) excludes personal injury and consumer claims (s 107B(3)-(4)), with defendants notifying concurrent wrongdoers or risking costs (s 107G). Non-party inclusion requires leave (s 107J(2)), barred if previously a party (s 107J(3)).

For public authorities (ch 8), statutory duty breach requires unreasonableness no authority could consider reasonable (s 111(2)). Road nonfeasance needs knowledge of particular risk (s 113(1)).

Institutional child abuse (ch 8A) applies retrospectively (s 114BA), with organisations vicariously liable if role supplied occasion (s 114BE(1)), considering authority, trust, intimacy (s 114BE(2)). Unincorporated bodies nominate or court appoints trusts (ss 114D-114E), with trustees able to apply property despite deed limits (s 114G(2)).

Professional standards (sch 4) schemes limit via insurance, assets, or charges multiple (ss 4.17-4.19), but not below relevant limit (s 4.22A). Notification required or offence (s 4.29, cross to s 4).

Costs caps in pt 14.1 for $50,000 or less claims (s 181) are often overlooked in settlement offers triggering indemnity (s 182). Reasonable prospects certification (s 188) risks personal costs orders (s 189).

These 'gotchas' justify specialist advice, as missing them can bar claims, expose to full liability, or incur penalties.

Compliance with the Act requires targeted actions by affected parties, based on specific sections.

For individuals and organisations facing potential liability, implement risk management per sch 4 s 4.32 if in an occupational association. Volunteers and community organisations (pt 2.2) should ensure activities fit s 7 definition, avoid violence/high-risk (s 7(2)), and obtain insurance directions if Minister issues (s 11). Good samaritans comply by acting honestly without recklessness (s 5(1)), avoiding recreational drug impairment except for naloxone (s 5(3)).

In personal injury claims (ch 5), claimants must give complying notices within times (s 51), including required information and authorisations (s 51(2)), with excuses for delays (s 51(7)). Respondents provide preliminary responses (s 52), full responses (s 54), and documents (s 68), attempting resolution (s 61). All parties disclose per pt 5.3, avoiding fraud (s 73), with verification if required (s 64(4)). Non-compliance risks costs (s 62) or offences (s 74, s 80).

For defamation (ch 9), publishers should respond to concerns notices (s 124A) with offers if appropriate (s 125), within applicable periods (s 126), including corrections and payments (s 127). Use defences like truth (s 135) or honest opinion (s 139B), ensuring based on proper material (s 139B(5)). Digital intermediaries maintain accessible complaints mechanisms (s 139BA(1)(b)) and take reasonable access prevention steps (s 139BA(2)) within 7 days of complaints (s 139BA(1)(c)).

Organisations for child abuse (ch 8A) must understand vicarious liability triggers (s 114BE), nominate defendants if unincorporated (s 114D), or face court appointment of trusts (s 114E). When settling, ensure just terms to avoid setting aside (s 114K).

Public authorities (ch 8) document compliance with standards and procedures (s 110(d)) to evidence reasonable exercise of functions.

For professional standards (sch 4), associations prepare schemes with risk management (s 4.32), insurance standards (s 4.23), complaints codes (pt 4.5), submitting for approval (s 4.9). Members comply with scheme limits by maintaining insurance or assets (ss 4.17-4.19), notifying limitations (s 4.29).

Insurers respect charges (s 206), paying appropriately (s 207).

In damages (ch 7), calculate per rules, ignoring certain amounts (s 26), applying presumptions (ss 95-97), apportioning for contributory negligence (s 102).

Use approved forms (s 222) and pay determined fees (s 222A). For mediation (pt 15.1), participate genuinely (s 196).

Overall, compliance involves early notice, disclosure, risk strategies, and insurance, with legal advice essential for nuances like asbestos exceptions (s 16(4)) or digital exemptions (s 122C). Regular review of transitional applications (chs 19-21) ensures correct law for pending matters.