Civil Law (Wrongs) Act 2002

114B Meaning of related trust—ch 8A 89 114BA Time when child abuse etc happens 90 114BB Definitions—pt 8A.1A 91 114BC Meaning of employee—pt 8A.1A 91 114BD Organisations that are responsible for child 92 114BE Organisations vicariously liable for child abuse perpetrated by employees 92 Part 8A.2 Institutional child abuse—proceedings against unincorporated bodies 114C Unincorporated bodies 93 114D Unincorporated body may nominate defendant 93 114E Court may appoint related trust as defendant 94 114F Proceedings may be commenced before nomination or appointment 96 114G Liability of trustee if nominated or appointed as defendant 96 114H Defendant may rely on defences and immunities etc 98 Part 8A.3 Institutional child abuse—setting aside abuse settlement agreements 114I Object—pt 8A.3 99 114J Definitions—pt 8A.3 99 114K Court may set aside abuse settlement agreement 100 114L Court may also set aside other things 101 114M Effect of setting aside abuse settlement agreement 102 115 Objects—ch 9 103 116 Definitions—ch 9 104 117 Ch 9 binds Crown 108

Page contents 8 Civil Law (Wrongs) Act 2002 Division 9.2.1 Defamation and the general law 118 Tort of defamation 109 119 Distinction between slander and libel abolished 109 120 Single cause of action for multiple defamatory imputations in same matter 109 121 Certain corporations do not have cause of action for defamation 110 122 No cause of action for defamation of, or against, deceased persons 111 122A Serious harm element of cause of action for defamation 111 122B Definitions—div 9.2.2A 113 122C Exemption for digital intermediaries providing caching, conduit or storage services 114 122D Exemption for search engine providers 115 122E Early determination of digital intermediary exemptions 116 123 Choice of law for defamation proceedings 117 124 Application—div 9.3.1 119 124A Concerns notices 119 124B Defamation proceedings cannot be commenced without concerns notice 121 125 Publisher may make offer to make amends 122 126 When offer to make amends may be made 122 127 Content of offer to make amends 123 128 Withdrawal of offer to make amends 125 129 Effect of acceptance of offer to make amends 126 130 Effect of failure to accept reasonable offer to make amends 126 131 Inadmissibility of evidence of certain statements and admissions 128 132 Effect of apology on liability for defamation 128

Page contents 9 133 Leave required for multiple proceedings in relation to publication of same defamatory matter 129 133A Orders for preliminary discovery about posters of digital matter 129 134 Scope of defences under general law and other law not limited 131 135 Defence of justification 131 136 Defence of contextual truth 131 137 Defence of absolute privilege 132 138 Defence for publication of public documents 133 139 Defences of fair report of proceedings of public concern 135 139AA Defence of publication of matter concerning issue of public interest 140 139A Defence of qualified privilege for provision of certain information 141 139AB Defence of scientific or academic peer review 143 139B Defences of honest opinion 144 139BA Defence for publications involving digital intermediaries 146 139C Defence of innocent dissemination 148 139E Damages to bear rational relationship to harm 150 139F Damages for non-economic loss limited 150 139G State of mind of defendant generally not relevant to awarding damages 151 139H Exemplary or punitive damages cannot be awarded 152 139I Factors in mitigation of damages 152 139J Damages for multiple causes of action may be assessed as single sum 152 139JA Orders against non-party digital intermediaries concerning defamatory digital matter 153 139K Costs in defamation proceedings 154 139L Proof of publication 156 139M Proof of convictions for offences 156

Page contents 10 Civil Law (Wrongs) Act 2002 139N Incriminating answers, documents or things 157 139O Giving of notices and other documents 158 Chapter 10 Trespass 141 Defence to action for trespass to land 159 142 Action for use and occupation of land—amount of damages 159 143 Purpose—pt 11.1 160 144 Definitions—pt 11.1 160 145 Meaning of traveller accommodation 161 146 Meaning of accommodation provider 162 147 Meaning of innkeeper’s liability 162 148 Meaning of guest 162 149 Meaning of property of guest 163 150 Application—div 11.1.2 163 151 Limitation on strict liability under innkeeper’s liability 163 152 Circumstances when limitation does not apply 164 153 Safe custody facilities 165 154 Notice about pt 11.1 166 Division 11.2.1 Preliminary—common carriers 155 Purpose—pt 11.2 167 156 Definitions—pt 11.2 167 Division 11.2.2 When common law liability of carriers not affected 157 Certain things not protected by pt 11.2 167 158 Public notices by carrier not to affect liability 168

Page contents 11 Division 11.2.3 Liability of common carriers for certain goods worth more than $20 159 Liability of carriers for certain goods worth more than $20 168 160 Notice of increased charge for transport of certain goods 168 161 Receipt of carrier for increased charge 169 162 Carrier only liable for proven amount for certain goods 169 Division 11.2.4 Liability of common carriers for certain animals 163 Definitions—div 11.2.4 170 164 Liability of carriers for certain animals 170 165 Notice of increased charge for transport of certain animals 171 166 Carrier only liable for proven amount for certain animals 172 Division 11.2.5 Notice, condition or declaration of carrier 167 Carrier liable for neglect or default despite notice etc 172 168 Liability of occupiers 174 Part 12.2 Liability for damage caused by animals 169 Evidence of breach of duty for animals 176 Part 12.3 Liability for fires accidentally begun 170 Actions do not lie for damage caused by accidental fires 177 171 Contract between landlord and tenant not affected 177 172 Definitions—ch 13 178 173 Removal of certain bars to rescission for misrepresentation 178 174 Damages for misrepresentation 179 175 Damages instead of rescission for misrepresentation 179 176 Exclusion clauses—misrepresentation 180 177 Misrepresentation in trade or commerce an offence 181 178 Employer etc liable for misrepresentation 181

Page contents 12 Civil Law (Wrongs) Act 2002 179 Prosecutions for misrepresentation 182 Part 14.1 Maximum costs for certain personal injury damages claims 180 Definitions—pt 14.1 183 181 Maximum costs for claims of $50 000 or less 183 182 Costs incurred after offer of compromise not accepted 185 183 Exclusion of costs unnecessarily incurred etc 186 184 Court discretion to allow additional costs 187 185 Apportionment of costs between lawyers 187 Part 14.2 Costs in damages claims if no reasonable 186 Definitions—pt 14.2 188 187 Application—pt 14.2 188 188 Certificate that claim or defence has reasonable prospects of success 189 189 Costs order against lawyer acting without reasonable prospects of success 189 190 Onus on lawyer to show facts provided reasonable prospects of success 190 191 Purpose of pt 15.1 etc 192 192 Meaning of mediation, neutral evaluation etc 192 193 Who can be a mediator 193 194 Who can be an evaluator 193 195 Referral by tribunal for mediation or neutral evaluation 193 196 Duty of parties to take part in neutral evaluations 194 197 Costs of neutral evaluation 194 198 Agreements and arrangements arising from mediation sessions 194

Page contents 13 199 Privilege for neutral evaluations 194 200 Secrecy by evaluators 196 201 Protection from liability for evaluators 196 206 Amount of liability charge on insurance money payable against liability 197 207 Enforcement of charge on insurance money 197 208 Protection of insurer for pt 15.3 charge 198 209 Certain other provisions not affected by pt 15.3 198 Part 15.4 Abolition of certain common law actions, rules and remedies 210 Abolition of seduction, enticement and harbouring 199 211 Abolition of rule about unity of spouses 199 212 Abolition of action of cattle-trespass 199 213 Abolition of distress damage feasant 199 214 Abolition of rules relating exclusively to liability for damage by animals 200 215 Partial abolition of rule in Rylands v Fletcher 200 216 Abolition of rule of common employment 200 217 Abolition of husband’s liability for wife’s torts and premarital obligations 200 218 Abolition of action for loss of consortium 200 219 Abolition of rule in Cavalier v Pope 201 220 Partial abolition of Mocambique rule 201 221 Abolition of torts of maintenance and champerty 201 Part 15.5 Other provisions 222 Approved forms 203 222A Determination of fees 203 223 Regulation-making power 203 Chapter 19 Transitional—Civil Law (Wrongs) Amendment Act 2024—absolute privilege 254 Absolute privilege amendments 204 255 Expiry—ch 19 205

Page contents 14 Civil Law (Wrongs) Act 2002 Chapter 20 Transitional—Civil Law (Wrongs) Amendment Act 2024 256 Definitions—ch 20 206 257 Digital intermediary amendments 206 258 Offer amendments 207 259 Preliminary discovery or non-party digital intermediary order amendments 208 260 Document giving or service amendments 209 261 Expiry—ch 20 209 Chapter 21 Transitional—Civil Law (Wrongs) (Organisational Child Abuse Liability) 262 Application of pt 8A.1A 210 263 Expiry—ch 21 210 Schedule 1A Additional publications to which absolute privilege applies 211 1A.1 Definitions—sch 1A 211 1A.2 Matter published to bar association etc 211 1A.3 Matter published to human rights commission etc 212 1A.4 Matter published to integrity commission etc 212 1A.5 Matter published to inspector of correctional services 213 1A.6 Matter published to law society etc 214 1A.7 Matter published to office of the work health and safety commissioner etc 215 1A.8 Matter published to official visitor etc 215 1A.9 Matter published to public trustee and guardian etc 216 1A.10 Matter published to sentence administration board etc 216

Schedule 1 Traveller accommodation providers notice 218 Notice about loss of guest’s property 218

Page contents 15

Schedule 2 Common carriers—goods subject to special limited liability 219

Schedule 3 Equine activities 220 3.1 Definitions—sch 3 220 3.2 Application—sch 3 222 3.3 Limitation on liability for injury or death of participant 222 3.4 Warning notice 224

Part 4.1 Preliminary—professional standards 225 4.1 Objects—sch 4 225 4.2 Definitions—sch 4 225 4.2A Amount payable under an insurance policy—sch 4 227 4.3 Application—sch 4 228 Part 4.2 Limitation of liability 229 4.4 Preparation and approval of schemes 229 4.5 Public notification of schemes 229 4.6 Making of comments and submissions about schemes 230 4.7 Consideration of comments, submissions etc 230 4.8 Public hearings 231 4.9 Submission of schemes to Minister 231 4.10 Schemes are subject to disallowance 231 4.11 Commencement of schemes 232 4.12 Challenges to schemes 232 4.13 Review of schemes 233 4.14 Amendment and revocation of schemes 234 4.14A Notification of revocation of schemes 235 4.14B Ending of operation of interstate schemes 235 4.15 People to whom scheme applies 236

Page contents 16 Civil Law (Wrongs) Act 2002 4.16 Other people to whom scheme applies 236 4.17 Limitation of liability by insurance arrangements 237 4.18 Limitation of liability by reference to amount of business assets 238 4.19 Limitation of liability by multiple of charges 238 4.20 Statement of different limits of liability 240 4.21 Combination of provisions under s 4.17, s 4.18 and s 4.19 240 4.22 Amount below which liability may not be limited 240 4.22A Liability in damages not reduced to below relevant limit 241 4.23 Insurance to be of required standard 241 4.24 Limit of occupational liability by schemes 242 4.25 Limitation of amount of damages 242 4.26 Effect of scheme on other parties to proceedings 243 4.27 Proceedings to which a scheme applies 243 4.28 Duration of scheme 243 4.29 Notification of limitation of liability 244 Part 4.3 Compulsory insurance 246 4.30 Occupational association may require members to insure 246 4.31 Monitoring claims by occupational associations 246 Part 4.4 Risk management 248 4.32 Risk management strategies by occupational associations 248 4.33 Reporting by occupational associations 248 4.34 Compliance audits 249 Part 4.5 Complaints and disciplinary matters 250 4.35 Complaints and Discipline Code 250 Part 4.6 Professional standards council 251 Division 4.6.1 Establishment and functions of council 4.36 The council 251 4.37 Functions of council 251 4.37A Cooperation with authorities in other jurisdictions 253 4.38 Membership of council 253

Page contents 17 4.39 Chairperson and deputy chairperson of council 254 4.40 Deputies of members 254 4.41 Term of appointment 255 4.42 Allowances of members 255 4.43 Vacancy in office of member 255 4.44 Filling of vacancy in office of member 256 4.45 Personal liability of members etc 256 4.46 General procedure for council 256 4.47 Quorum at council meetings 257 4.48 Presiding member at council meetings 257 4.49 Voting at council meetings 257 4.50 Requirement to provide information 257 4.51 Referral of complaints 258 4.52 Council committees 258 4.53 Use of government staff or facilities 259 4.54 Engagement of consultants by council 259 4.55 Accountability of council to Minister 259 4.56 Annual report of council 259 Part 4.7 Miscellaneous—sch 4 260 4.57 Characterisation of sch 4 260 4.58 No contracting out of sch 4 260 4.59 No limitation on other insurance 260 4.59A Validation of schemes etc 260

Schedule 5 Occupational associations—model code 261 5.1 Name of code 261 5.2 Meaning of council 261 5.3 What actions may be the subject of a complaint? 261 5.4 Who may make a complaint? 261 5.5 How is a complaint made? 261 5.6 What happens after a complaint is made? 262

Page contents 18 Civil Law (Wrongs) Act 2002 5.7 What action may be taken after a hearing into a complaint? 262 5.8 Notices of decisions 263 5.9 What rights of representation do parties to a complaint have? 263 5.10 How may occupational association’s functions under code be exercised? 264 5.11 Protection from liability 264 Dictionary 265 1 About the endnotes 278 2 Abbreviation key 278 3 Legislation history 279 4 Amendment history 289 5 Earlier republications 342 6 Expired transitional or validating provisions 348 7 Renumbered provisions 348

An Act to consolidate and reform the statute law relating to wrongs, and for other purposes

1 Name of Act This Act is the Civil Law (Wrongs) Act 2002.

2 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘accommodation provider—see section 146.’ means that the term ‘accommodation provider’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Chapter 1

4 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1): • section 74 (Offence—failure to give document or information) • section 80 (False or misleading statements) • sch 4, s 4.29 (Notification of limitation of liability) • sch 4, s 4.50 (Requirement to provide information). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 2 Provisions applying to wrongs generally

5 Protection of good samaritans from liability (1) A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently— (a) injured or at risk of being injured; or (b) in need of emergency medical assistance. (2) However, the protection does not apply if— (a) the liability falls within the ambit of a scheme of compulsory third-party motor vehicle insurance; or (b) the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug. Example—scheme of compulsory third-party motor vehicle insurance the scheme under the Motor Accident Injuries Act 2019 (3) Despite subsection (2) (b), if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person, the protection under subsection (1) applies even if the good samaritan’s capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug. Examples—opioid drugs • heroin • methadone • morphine

Good samaritans Part 2.1 good samaritan means— (a) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently— (i) injured or at risk of being injured; or (ii) in need of emergency medical assistance; or (b) a medically qualified person who, acting without expectation of payment or other consideration, gives advice by telephone or another form of telecommunication about the treatment of a person who is apparently— (i) injured or at risk of being injured; or (ii) in need of emergency medical assistance. medically qualified—a person is medically qualified if the person— (a) is a doctor; or (b) has professional qualifications in a field of health care that are recognised under an Act; or (c) works, or has worked, as a member of the ambulance service or in another paramedical capacity.

6 Definitions—pt 2.2 community organisation means a corporation that directs or coordinates the carrying out of community work by volunteers. voluntary basis—a person works on a voluntary basis if the person— (a) receives no remuneration for the work; or (b) is remunerated for the work but within limits prescribed by regulation for this definition. volunteer means a person who carries out community work on a voluntary basis.

7 Meaning of community work community work means— (a) work for 1 or more of the following purposes: (i) a religious, educational, charitable or benevolent purpose; (ii) promoting or encouraging literature, science or the arts; (iii) looking after, or giving attention to, people who need care because of a physical or mental disability or condition; (iv) sport, recreation or amusement; (v) conserving resources or protecting the natural environment from harm; (vi) preserving historical or cultural heritage; (vii) a political purpose;

Volunteers Part 2.2 (viii) protecting or promoting the common interests of the community generally or a particular section of the community; or (b) work declared by regulation to be community work. (2) However, work is not community work if it— (a) involves acts or threats of violence; or (b) creates a serious risk to the health or safety of the public or a section of the public; or (c) is declared by regulation not to be community work.

8 Protection of volunteers from liability (1) A volunteer does not incur personal civil liability for an act done or omission made honestly and without recklessness while carrying out community work for a community organisation on a voluntary basis. (2) However, the protection does not apply if— (a) the liability falls within the ambit of a scheme of compulsory third-party motor vehicle insurance; or (b) the liability is for defamation; or (c) the volunteer’s capacity to carry out the work properly was, at the relevant time, significantly impaired by a recreational drug; or (d) the volunteer was acting, and knew or ought to have known that he or she was acting— (i) outside the scope of the activities authorised by the community organisation; or (ii) contrary to instructions given by the community organisation.

9 Liability of community organisations for volunteers (1) A liability that would, apart from this part, attach to a volunteer, attaches instead to the community organisation for which the volunteer was carrying out the relevant community work. (2) A person (the injured person) who suffers death, injury, loss or damage because of the act or omission of a volunteer may sue the volunteer personally only if— (a) it is clear from the circumstances of the case that the protection given under section 8 does not apply to the case; or (b) the injured person brings an action against the community organisation and the community organisation disputes, in a defence filed to the action, that it is liable for the act or omission of the volunteer.

10 Territory may assume liability of community organisations for volunteers (1) This section applies if a community organisation carries out a function that is a recognised government responsibility. (2) The Minister may, by agreement with the community organisation, assume on behalf of the Territory liabilities of the organisation that arise under section 9 in carrying out the function. (3) The agreement may be subject to the conditions and limitations the Minister considers appropriate. (4) While the agreement is in force, a liability that would, apart from this section, attach to the community organisation in relation to the function, attaches instead (subject to the conditions and limitations of the agreement) to the Territory. recognised government responsibility means a responsibility prescribed by regulation as a recognised government responsibility.

Volunteers Part 2.2

11 Directions to community organisations about insurance etc (1) The Minister may give directions to community organisations about the taking out of insurance, or the adoption of risk management plans, in relation to liabilities to which this part applies. (2) A direction is a disallowable instrument.

11A Definitions—pt 2.2A donor— (a) means a person who donates food— (i) in good faith for a charitable or benevolent purpose; and (ii) with the intention that the consumer of the food would not have to pay for it; but (b) does not include a person who distributes food donated by another person for human consumption. fit for human consumption, in relation to food, means food that is not unsafe or unsuitable. food—see the Food Act 2001, section 8. unsafe, in relation to food—see the Food Act 2001, section 12. unsuitable, in relation to food—see the Food Act 2001, section 13.

11B Protection of food donors from liability A donor does not incur civil liability for any personal injury that results from the consumption of food donated by the donor if— (a) the food was fit for human consumption when it left the possession or control of the donor; and (b) for food that is required to be handled in a particular way to ensure it remains fit for human consumption—the donor told the person to whom the donor gave the food about the handling requirements for the food; and

Food donors Part 2.2A (c) for food that would remain fit for human consumption for only a limited amount of time after it leaves the possession or control of the donor—the donor told the person to whom the donor gave the food about the time limit on the consumption of the food.

12 Application—pt 2.3 (1) This part applies to civil liability of any kind. (2) However, this part does not apply to civil liability for an award of damages or compensation— (a) for defamation; or (b) under any of the following: (i) the Discrimination Act 1991; (ii) the Workers Compensation Act 1951.

13 Meaning of apology in pt 2.3 apology means an oral or written expression of sympathy or regret, or of a general sense of benevolence or compassion, in relation to an incident, whether or not the expression admits or implies fault or liability in relation to the incident.

14 Effect of apology on liability etc (1) An apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person— (a) is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and (b) is not relevant to deciding fault or liability in relation to the incident.

Apologies Part 2.3 (2) Evidence of an apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the incident.

15 Effect of death on certain causes of action (1) When a person dies— (a) all causes of action vested in the person survive for the benefit of the person’s estate; and (b) all causes of action existing against the person survive against the person’s estate. (2) This section does not apply to causes of action for defamation.

16 Damages in surviving cause of action (1) This section applies to a cause of action that survives under this part for the benefit of a dead person’s estate. (2) The damages recoverable do not include exemplary damages. (3) If the act or omission that gave rise to the cause of action caused the person’s death, the damages recoverable— (a) must be calculated without regard to any loss or gain to the estate resulting from the death; and (b) do not include damages for— (i) the person’s pain or suffering or for any bodily or mental harm suffered by the person or for the loss of the person’s expectation of life; or (ii) the person’s loss of capacity to earn or loss of future probable earnings; and (c) do not include damages of the kind mentioned in section 100 (Damages for loss of capacity to perform domestic services).

Survival of actions on death Part 2.4 (4) However, damages mentioned in subsection (3) (b) (i) may be recovered if— (a) the cause of action related to a personal injury resulting from an asbestos-related disease; and (b) the person gave notice under section 51 (Notice of claim) before the person’s death; and (c) the person died either— (i) as a result of the asbestos-related disease; or (ii) the asbestos-related disease was a contributing factor to the person’s death. (5) The damages may include an amount to compensate for any reasonable funeral expenses paid or payable by the estate. (6) An amount to compensate for any reasonable funeral expenses may be reduced to the extent (if any) that the court considers just and equitable having regard to the age and health of the dead person immediately before the act or omission that gave rise to the cause of action. (7) In deciding whether an expense is reasonable for subsection (5), regard must be had to the religious and cultural circumstances of the dead person and the members of the dead person’s family. (8) In this section: asbestos-related disease means any of the following diseases: (a) asbestosis; (b) asbestos induced carcinoma; (c) asbestos-related pleural diseases; (d) mesothelioma; (e) a disease prescribed by regulation. member, of a dead person’s family—see section 23.

17 If person liable dies before or at time of damage (a) damage was suffered because of an act or omission; and (b) a person against whom there would have been a cause of action for the act or omission died before or at the same time as the damage was suffered. (2) For this part, the cause of action is taken to have existed against the person before his or her death.

18 Saving of rights additional to pt 2.4 (1) The rights given by this part for the benefit of estates of dead people are additional to, and do not limit, rights given by part 3.1 (Wrongful act or omission causing death). (2) This part as it relates to causes of action against estates of dead people applies in relation to causes of action under part 3.1 in the same way as it applies in relation to other causes of action that survive under this part. (3) The rights given by this part for the benefit of estates of dead people, and the obligations under this part against estates of dead people, are additional to, and do not limit, rights or obligations under the Motor Accident Injuries Act 2019.

Proceedings against and contributions between wrongdoers Part 2.5 Part 2.5 Proceedings against and contributions between wrongdoers

19 Definitions—pt 2.5 damage means loss of any kind (including loss of life, personal injury, damage to property and economic loss). (a) that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or

20 Each of several wrongdoers can be sued (1) A judgment or decision against a person for damage caused by a wrong does not bar an action against someone else who is also liable for the same damage. (2) However, if separate actions are brought in relation to the same damage— (a) the total amount recovered in the actions cannot exceed the amount of damages awarded in the judgment or decision given first or, if that amount is amended on appeal, the amount as amended; and (b) the plaintiff is only entitled to costs in the action for which judgment or decision is given first (including costs on appeal from the judgment or decision), unless the court considers there were reasonable grounds for bringing the actions separately.

Part 2.5 Proceedings against and contributions between wrongdoers

21 Right of contribution (1) A person (the first person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage. (2) The contribution must be an amount that the court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage. (3) However, the first person is not entitled to contribution under this section if— (a) the first person is liable to indemnify the contributory against the contributory’s liability for the damage; or (b) the court exempts the contributory from liability to make contribution; or (c) the court has directed that contribution to be recovered from a person for the damage is a complete indemnity for the damage.

22 Effect of pt 2.5 (1) This part does not— (a) affect any criminal proceeding against a person in relation to an act or omission; or (b) make enforceable an agreement for indemnity that would not have been enforceable if this part had not been enacted. (2) This part has effect subject to the Building Act 2004, part 9 (Limitation of liability).

Wrongful act or omission causing death Part 3.1 Preliminary—liability for death Division 3.1.1 Part 3.1 Wrongful act or omission causing death Division 3.1.1 Preliminary—liability for death 23 Definitions—pt 3.1 child includes a grandchild and a stepchild. member, of a dead person’s family—each of the following people is a member of a dead person’s family: (a) a domestic partner; or (b) a child of the person (including a child born alive after the death); (c) a person to whom the dead person acted, immediately before his or her death, in place of a parent; (d) a parent of the person; (e) a person who acted, immediately before the dead person’s death, in place of a parent to the dead person; (f) a brother, a sister, a half-brother and a half-sister of the person; (g) a former spouse, civil union partner or civil partner of the parent includes a stepfather, a stepmother, a grandfather and a grandmother.

24 Liability for a person’s death If— (a) a person’s death is caused by a wrongful act or omission (whether or not an offence); and (b) the act or omission would, if death had not resulted, have entitled the person to recover damages in an action for personal injury; the person who would have been liable if the death had not resulted is liable to an action for damages despite the death and whether or not the death was caused by circumstances that were an offence.

25 Damages for a person’s death (1) In an action under this part, the court may award, to the people for whose benefit the action is brought (the beneficiaries), the damages that it considers to be proportional to the damage to them resulting from the death. (2) Subsection (1) has effect subject to part 7.1 (Damages for personal (3) The amount of damages awarded must, after deducting the costs not recovered from the defendant, be divided between the beneficiaries in the shares the court decides. (4) The damages may include an amount to compensate for any of the following expenses paid or payable by a beneficiary: (a) reasonable funeral expenses; (b) reasonable medical or hospital expenses related to the injury that resulted in the death.

Wrongful act or omission causing death Part 3.1 Liability and damages for death Division 3.1.2 (5) An amount to compensate for any reasonable funeral expenses may be reduced to the extent (if any) that the court considers just and equitable having regard to the age or health of the dead person immediately before the wrongful act or omission that caused the death. (6) In deciding whether an expense is reasonable for subsection (4) (a), regard must be had to the religious and cultural circumstances of the dead person and the members of the dead person’s family.

26 Amounts not taken into account in assessing damages for death In assessing damages in relation to liability under this part, the following must not be taken into account to reduce the damages: (a) an amount paid or payable on the death of, or personal injury to, the dead person under a contract of insurance; (b) an amount paid or payable out of a superannuation, provident or similar fund, or as a benefit from a friendly society, benefit society, lodge or trade union; (c) an amount paid or payable because of the death or injury of the dead person that is— (i) a payment instead of leave; or (ii) a payment of a pension or another social security or veterans benefit; (d) an amount paid or payable as a gratuity on the death of the dead person;

(e) an amount in relation to the acquisition by a member of the dead person’s family, after the death, of— (i) a house, or an interest in a house, used at any time as the member’s home; or (ii) the household contents, or an interest in the household contents, of the house; (f) a premium that would have become payable under a contract of insurance on the life of the dead person if the person had lived beyond the time when he or she died.

27 Contributory negligence not defence in relation to death (1) If a person has died partly because of the person’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong, the damages recoverable in an action under this part for the wrong must not be reduced because of the contributory negligence. (2) Subsection (1) has effect subject to part 7.1 (Damages for personal (a) that gives rise to a liability in tort; or

Mental harm Part 3.2

32 Definitions—pt 3.2 child, of a person, means the son, daughter, grandson, granddaughter, stepson or stepdaughter of the person, or someone to whom the person is acting in place of a parent. consequential mental harm, to a person, means mental harm to the person that is a consequence of bodily injury to the person. family member, of a person, means— (a) a domestic partner; (b) a parent or child of the person; or (c) a brother, sister, half-brother or half-sister of the person. mental harm, to a person, means impairment of the person’s mental condition. negligence means failure to exercise reasonable care and skill. parent, of a person, means the father, mother, grandfather, grandmother, stepfather or stepmother of the person, or someone acting in place of a parent to the person. pure mental harm, to a person, means mental harm to the person other than consequential mental harm.

33 Personal injury arising from mental or nervous shock In an action for personal injury, the plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock.

34 Mental harm—duty of care (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include— (a) whether or not the mental harm was suffered as the result of a sudden shock; and (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and (c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose. (4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.

Mental harm Part 3.2

35 Mental harm—damages (1) Damages must not be awarded for pure mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness. (2) Damages must not be awarded for economic loss for consequential mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness.

36 Extensions of liability under pt 3.2 in certain cases (1) A person’s liability in relation to an injury caused by a wrongful act or omission by which someone else (A) is killed, injured or put in danger includes liability for injury arising completely or partly from mental or nervous shock received by— (a) a parent of A; or (b) a domestic partner of A; or (c) another family member of A, if A was killed, injured or put in danger within the sight or hearing of the other family member. (2) If 2 or more family members bring, or may bring, actions in relation to liability arising under subsection (1) out of the same act or omission, the court may proceed in the way the court considers appropriate and may make the orders the court considers appropriate about— (a) which family members are parties to the action; and (b) who is to have the conduct of the action. (3) The action is for the benefit of all family members who are parties to the action. (4) The court may award the damages that it considers to be proportional to the damage to the plaintiffs resulting from the wrongful act or omission.

(5) Subsection (4) has effect subject to part 7.1 (Damages for personal (6) The amount of damages awarded must, after deducting the costs not recovered from the defendant, be divided between the plaintiffs in the shares the court decides.

Exclusion of liability for terrorism-associated risks Part 3.3

Part 3.3 Exclusion of liability for terrorism-associated risks

37 Meaning of act of terrorism for pt 3.3 act of terrorism means the use or threat of action if— (a) the action falls within subsection (2); and (b) the use or threat is designed to influence a government or to intimidate the public or a section of the public; and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it— (a) involves serious violence against a person; or (b) involves serious damage to property; or (c) endangers a person’s life, other than that of the person committing the action; or (d) creates a serious risk to the health or safety of the public or a section of the public; or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) that involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied. action includes action outside the ACT or Australia. government includes the government of another Australian jurisdiction or a foreign country.

Part 3.3 Exclusion of liability for terrorism-associated risks person means a person anywhere, whether in or outside the ACT or Australia. property means property located anywhere, whether in or outside the ACT or Australia. public includes the public of a place outside the ACT or Australia.

38 Limitation of liability for acts of terrorism (1) There is no right of action for death or injury (or both) arising out of the use of a motor vehicle if the death or injury (or both) are caused by an act of terrorism. (2) Subsection (1) does not remove the liability— (a) of someone who commits or promotes the act of terrorism; or (b) of an employer to pay compensation under the Workers Compensation Act 1951 (or any corresponding law of the Commonwealth, a State or another Territory) to a worker. (3) This section applies despite the Motor Accident Injuries Act 2019, section 295 (MAI insurer to indemnify MAI insured people)

Preliminary—negligence Part 4.1 Part 4.1 Preliminary—negligence

40 Definitions—ch 4 harm means harm of any kind, and includes— (a) personal injury; and (b) damage to property; and (c) economic loss. negligence means failure to exercise reasonable care and skill.

41 Application—ch 4 (1) This chapter applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise. (2) However, this chapter does not apply to a claim under the Workers Compensation Act 1951.

42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

43 Precautions against risk—general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.

Duty of care Part 4.2

44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— (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 (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 it was done; and (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 is not of itself an admission of liability in relation to the risk.

45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

Causation Part 4.3

46 Burden of proof In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. Note The Motor Accident Injuries Act 2019, s 256 provides that, for making a motor accident claim for a no-fault motor accident— (a) in the case of a single vehicle accident, the driver of the motor vehicle is taken to be the driver at fault and to have breached their duty of care to an injured person; and (b) in the case of a multiple vehicle accident, the driver of the motor vehicle whose act or omission caused the accident is taken to be the driver at fault and to have breached their duty of care to an injured person.

47 Contributory negligence can defeat claim In deciding the extent of a reduction of damages because of contributory negligence, a court may decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated.

48 Remedy available if claim fraudulent (1) This section applies to a person if— (a) the person did, or omitted to do, something in relation to a claim; and (b) the person did, or omitted to do, the thing— (i) for the purpose of obtaining a financial benefit; or (ii) knowing that the thing (or something else resulting from doing or omitting to do the thing) is false or misleading. Example of something done in relation to claim the making of a statement Example of something resulting from the doing of the thing the statement (2) If this section applies to a claimant in relation to a claim— (a) a person who has a liability in relation to a payment, settlement, compromise or judgment relating to the claim is relieved from the liability to the extent of the financial benefit obtained by the claimant; and (b) a person who has paid an amount to the claimant in relation to the claim (whether under a settlement, compromise, judgment or otherwise) is entitled to recover from the claimant the amount of the financial benefit obtained by the claimant and any costs incurred in relation to the claim.

Other provisions—negligence Part 4.4 (3) If this section applies to a person other than a claimant in relation to a claim, the claimant is entitled to recover from the person as a debt the amount of the financial benefit obtained by the person and any costs incurred by the claimant in relation to the claim.

Chapter 5 Personal injuries claims— pre-court procedures

49 Definitions—ch 5 claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s claimant means a person by whom, or on whose behalf, a claim is made. complying notice of claim means a notice of claim under section 51 (Notice of claim) or section 55 (Claimant may add later respondents) that is given as required under this chapter. contribution notice—see section 57 (Respondent may add someone else as contributor). contributor means a person added as a contributor under section 57 (Respondent may add someone else as contributor). court, in relation to a claim, means— (a) if a proceeding based on a claim has been begun—the court hearing the proceeding; or (b) if no proceeding based on the claim has been begun—a court with jurisdiction to hear the claim. insurer, of a person in relation to a claim, means the insurer or other entity providing, or purportedly providing, the person cover or an indemnity against the claim.

Preliminary—ch 5 Part 5.1 party means claimant, respondent or contributor. respondent means a person who— (a) is a respondent under section 51 (Notice of claim); or (b) is a later respondent under section 55 (Claimant may add later respondents).

50 Application—ch 5 (1) This chapter applies to all claims for damages for personal injury, including claims to which the Motor Accident Injuries Act 2019, chapter 5 (Motor accident injuries—common law damages) applies. (2) However, this chapter does not apply to— (a) a claim for compensation under the Workers Compensation Act 1951; or (b) a claim for which— (i) notice has been given by or for the claimant under the Limitation Act 1985, section 30A (2) (Special provision for injuries to children); and (ii) notice has been given by a respondent under that Act, section 30A (6). (3) Also, this chapter does not apply to a claim for damages for personal injury if a claim for compensation has been made under the Workers Compensation Act 1951 in relation to the injury. (4) Despite subsection (3), part 5.2 (Claims procedures) applies to a claim for damages for personal injury, even though a claim for compensation may have been made under the Workers Compensation Act 1951 in relation to the injury, if— (a) the Motor Accident Injuries Act 2019, chapter 5 applies to the claim; or

(b) the claim is made against a person who is not an employer or insurer in relation to the injury under the Workers Compensation Act 1951, chapter 6 (Claims) even though it is also made against such a person.

51 Notice of claim (1) Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim. Note 1 A proceeding must be brought before the end of the relevant limitation period (if any) under the Limitation Act 1985. Note 2 The Limitation Act 1985 does not apply a limitation period to child abuse claims (see that Act, s 21C). (2) The notice must— (a) contain a statement of the information required by regulation; and (b) authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation: (i) the respondent; (ii) if the respondent is insured against the claim—the respondent’s insurer for the claim; and (c) be accompanied by the documents required by regulation. (3) For a proceeding not based on a motor accident claim or child abuse claim, the notice must be given within the period that ends on the earlier of the following days: (a) the day that is 9 months after— (i) the day the accident giving rise to the personal injury happened; or (ii) if symptoms of the injury are not immediately apparent— the day symptoms of the injury first appear;

(b) the day that is 4 months after the later of the following days: (i) the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury; (ii) the day the respondent is identified. (4) For a proceeding based on a motor accident claim, the notice must be given within 3 months after the latest of the following days: (a) if the claimant is taken, under the Motor Accident Injuries Act 2019, section 133 (WPI taken to be 10% in certain circumstances), to have a WPI of 10% as a result of the motor accident—the day the claimant receives information under the Motor Accident Injuries Act 2019 stating that the claimant is taken to have a WPI of 10%; (b) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 141 (5) (WPI assessment 4 years 6 months after motor accident)—the date that is 26 weeks after the date of the notice; (c) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 157 (2) (WPI 10% or more—injured person entitled to make motor accident claim)—the due date stated in the notice; (d) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 164 (2) (Final offer WPI 10% or more—injured person entitled to make motor accident claim)— the due date stated in the notice;

(e) if the claimant applies to the ACAT for review of a final offer WPI decision under the Motor Accident Injuries Act 2019, section 162 (1) (Final offer WPI 5% to 9%), section 163 (1) (Final offer WPI 10% or more—injured person not entitled to make motor accident claim) or section 164 (1) and the ACAT makes an order under that Act, section 197 (External review— decision) to the effect that the claimant has a WPI of at least 10% and is entitled to make a motor accident claim— (i) if no appeal from the order is made—the date the appeal period for the order ends; or (ii) if an appeal from the order is made—the date the appeal is finally decided; (f) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 213 (4) (SOI report—injury has significant occupational impact) stating that the claimant is taken to have a WPI of 10% for this Act—the date of the notice; (g) if the claimant applies to the ACAT for review of an SOI report under the Motor Accident Injuries Act 2019, section 214 (SOI report—no significant occupational impact) and the ACAT makes an order under that Act, section 218 (1) (b) (ACAT review—decision)— (i) if no appeal from the order is made—the date the appeal period for the order ends; or (ii) if an appeal from the order is made—the date the appeal is finally decided. Note This chapter does not apply to a claim for which a notice has been given by or for the claimant under the Limitation Act 1985, s 30A (2) (see s 50).

(5) For a proceeding based on a child abuse claim, the notice must be given within a reasonable time before the claimant brings the proceeding against the respondent. Note If the notice is not given as required under s (5), the obligation to give the notice continues until it is given (see Legislation Act, s 152). (6) If the claimant is a child, the claimant’s parent or legal guardian may give the notice for the claimant. Note For another procedure for a claim in relation to a personal injury suffered by a child, see the Limitation Act 1985, s 30A (Special provision for injuries to children). (7) If the notice is not given within the period required under subsection (3), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent. Note If the notice is not given as required under s (3), the obligation to give the notice continues until it is given (see Legislation Act, s 152). (8) Without limiting subsection (7), an excuse is reasonable if it is prescribed by regulation for this section. (9) If the respondent knows of anyone else (a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives the notice)— (a) give a copy of the notice to each relevant person; and (b) tell the claimant in writing about each relevant person and give the claimant a short written statement explaining why each of them may be a relevant person. (10) If the respondent is a child, the respondent’s parent or legal guardian may comply with subsection (9) for the respondent.

51A Motor accident claims—respondent to identify and notify others (1) If a respondent to a motor accident claim knows of anyone else (a relevant person) against whom the claimant may be able to begin a proceeding based on the claim, the respondent must, not later than 7 days after the day the respondent receives the notice of claim— (a) give a copy of the notice of claim to the relevant person; and (b) tell the claimant, in writing, about the relevant person, including a short written explanation of why the respondent believes that the person may be a relevant person. (2) If the respondent is a child, the respondent’s parent or legal guardian may comply with subsection (1) for the respondent.

52 Preliminary response to claimant (1) A respondent must, in writing and within the required period— (a) give notice to the claimant under section 54 (Respondent’s response to notice of claim); or (b) if the respondent cannot decide on the information in the notice whether or not the respondent is properly a respondent to the claim—tell the claimant, in writing, about the further information the respondent reasonably needs to decide whether the respondent is properly a respondent to the claim; or (c) if the respondent considers that the respondent is not properly a respondent to the claim, tell the claimant, in writing, that the respondent considers the respondent is not properly a respondent to the claim and give the claimant, in writing— (i) reasons why the respondent considers the respondent is not properly a respondent to the claim; and

(ii) any information the respondent has that may help the claimant identify someone who should be a respondent to the claim. (2) If the claimant is told that further information is needed under subsection (1) (b), the claimant must, within the required period— (a) give the respondent the further information; or (b) tell the respondent, in writing, that the claimant considers the respondent to be properly a respondent to the claim and requires the respondent to give notice to the claimant under section 54. (3) Within the required period after being given information under subsection (2) (a), the respondent must, having regard to that information— (a) give notice to the claimant under section 54; or (b) if the respondent considers that the respondent is not properly a respondent to the claim, tell the claimant, in writing, that the respondent considers the respondent is not properly a respondent to the claim and give the claimant, in writing— (i) reasons why the respondent considers the respondent is not properly a respondent to the claim; and (ii) any information the respondent has that may help the claimant identify someone who should be a respondent to the claim. (4) If the claimant is told under subsection (1) (c) or subsection (3) (b) that the respondent is not properly a respondent to the claim, the claimant must, within the required period, tell the respondent, in writing, that— (a) the claimant accepts that the respondent is not properly a respondent to the claim; or

(b) the claimant considers the respondent to be properly a respondent to the claim and requires the respondent to give notice to the claimant under section 54. (5) Advice given to the respondent under subsection (4) (a) does not prevent the claimant from giving the respondent another notice of claim under section 51 at a later time. required period means— (a) the period prescribed by regulation; or (b) if no period is prescribed, the following: (i) for subsection (1)—1 month after the day the respondent receives a notice of claim under section 51; (ii) for subsection (2)—1 month after the day the claimant is told under subsection (1) (b) that further information is needed; (iii) for subsection (3)—1 month after the day the respondent is given the information; (iv) for subsection (4)—1 month after the day the claimant is told under subsection (1) (c) or (3) (b) that the respondent is not properly a respondent to claim.

53 Acknowledgment that proper respondent not admission of liability Advice by a respondent that the respondent considers that the respondent is properly a respondent to a claim is not an admission of liability by the respondent in relation to the claim.

54 Respondent’s response to notice of claim (1) This section applies if a respondent— (a) considers the respondent to be properly a respondent to a claim; or (b) is told under section 52 (2) (b) or (4) (b) (Preliminary response to claimant) that the claimant considers the respondent to be properly a respondent to a claim. (2) The respondent must, within the required period, give the claimant written notice (a response)— (a) stating whether the respondent is satisfied that the notice is a complying notice of claim; and (b) if the respondent is not satisfied—identifying the noncompliance and stating whether the respondent waives compliance with the requirements; and (c) if the respondent does not waive compliance with the requirements—allowing the claimant a reasonable period, of at least 1 month, stated in the response to— (i) satisfy the respondent that the claimant has complied with the requirements; or (ii) take reasonable action stated in the response to remedy the (3) If the respondent does not give a response within the required period, the respondent is conclusively presumed to be satisfied that the notice is a complying notice of claim.

(4) If subsection (2) (c) applies, the respondent must, within 1 month after the day the period stated in the response ends, give the claimant a written notice— (a) stating that the respondent is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance, or waives the noncompliance; or (b) stating that the respondent is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, and giving full particulars of the noncompliance and the claimant’s failure to remedy it. required period means— (a) if the respondent responds directly to the claimant under this section as mentioned in section 52 (1) (a)—the period applying under section 52 (1); and (b) in any other case— (i) the period prescribed by regulation; or (ii) if no period is prescribed, the later of the following: (A) if the respondent gives notice to the claimant under section 52 (3) (a)—1 month after the day the respondent is given the further information under section 52 (2) (a); (B) if the claimant tells the respondent under section 52 (2) (b) or (4) (b) that the claimant considers the respondent to be properly a respondent to the claim—1 month after the day the claimant tells the respondent under that paragraph.

55 Claimant may add later respondents (1) After a claimant has given notice of a claim to a respondent under section 51, the claimant may add someone else as a respondent (a later respondent) to the claim by giving the later respondent— (a) a notice of a claim complying with section 51 (2); and (b) copies of other documents given to or received from any other respondent under this chapter. (2) However, the claimant may add a later respondent only— (a) within the period (if any) prescribed by regulation; or (b) if the later respondent and all parties to the claim agree; or (c) if the court gives leave. (3) If the claimant adds a later respondent under this section— (a) the later respondent must respond to the notice as if it were a notice of a claim given under section 51; and (b) the claimant must, in writing, tell each other respondent of the addition within the period prescribed by regulation.

56 Multiple respondents (1) If there are 2 or more respondents to a claim, other than a motor accident claim, 1 of the respondents (the respondents’ claim manager) may act for 1 or more of the other respondents under this chapter with the agreement of the other respondents. (2) If there are 2 or more respondents to a motor accident claim, 1 of the respondents (the respondents’ claim manager) must act for all of the respondents under this chapter. (3) For subsection (2)— (a) the respondents’ claim manager must be decided— (i) by agreement between the respondents; or

(ii) if the respondents cannot agree within 2 months after the day the claimant first gave, or is taken to have given, a respondent for the motor accident claim a complying notice of claim—under the insurance industry deed; and (b) until the respondents’ claim manager is decided under paragraph (a), the respondent to which the notice of claim is first given under section 51 is the respondents’ claim manager. (4) The respondents’ claim manager— (a) may exercise the functions given under this chapter in relation to the claim and the claimant for all respondents for whom the respondents’ claim manager acts; and (b) must act as far as practicable with the agreement of the other respondents for whom the manager acts. (5) Action taken, or an agreement made, by the respondents’ claim manager in relation to the claim is binding on each respondent for whom the respondents’ claim manager acts so far as it affects the claimant. (6) However, if the respondents’ claim manager acts beyond the scope of the manager’s authority under the agreement under subsection (1) or (3) (a) (i), the manager is liable to each other respondent who is a party to the agreement for any loss suffered by the other respondent.

57 Respondent may add someone else as contributor (1) A respondent who receives a complying notice of claim may add someone else as a contributor for this chapter by giving the person a written notice (a contribution notice)— (a) claiming an indemnity from, or contribution towards, the respondent’s liability; and (b) stating the grounds on which the respondent holds the person liable; and

(c) stating any other information prescribed by regulation; and (d) accompanied by copies of documents about the claim given to or received from any other party under this chapter. (2) However, the respondent may add someone else as a contributor only— (a) within the period (if any) prescribed by regulation; or (b) if the contributor and all parties to the claim agree; or (c) if the court gives leave. (3) Also, if the claim is a motor accident claim and the respondent proposes to add the nominal defendant as a contributor because the motor accident involved an unidentified motor vehicle, the respondent may add the nominal defendant only if the respondent has made reasonable inquiry and search for the identity of the motor vehicle. (4) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search. (5) If the respondent adds someone else as a contributor under this section, the respondent must give a copy of the contribution notice to each other party within the period prescribed by regulation.

58 Contributor’s response (1) A contributor must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the contributor receives a contribution notice), give the respondent who gave the contribution notice a written response (the contributor’s response)— (a) containing a statement of information prescribed by regulation; and (b) accompanied by the documents (if any) prescribed by regulation.

(2) The contributor’s response must also state— (a) whether the claim for the contribution or indemnity claimed in the contribution notice is admitted, denied or admitted in part; and (b) if the claim for the contribution or indemnity is admitted in part—the extent to which it is admitted. (3) An admission of liability in the contributor’s response— (a) is not binding on the contributor in relation to any other claim; and (b) is not binding on the contributor at all if it later appears the admission was induced by fraud. (4) If the respondent requires information given by a contributor under this section to be verified, the contributor must give the respondent a

59 Claimant’s failure to give complying notice of claim (1) If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless— (a) the respondent to whom notice of the claim was purportedly given— (i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is presumed, under section 54 (3) (Respondent’s response to notice of claim), to be satisfied the notice is a complying notice of claim; or

(b) the respondent has waived any noncompliance; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1) (c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.

60 Legal disabilities (1) A claimant is not required to comply with an obligation under this chapter while the claimant is under a legal disability. Note If the claimant is a child, under s 51 (4) a parent or guardian of the child may give the notice of claim for the child. (2) The period within which the obligation must be complied with begins when the claimant’s legal disability ends. (3) This chapter applies to the claimant as if— (a) a reference to the day the accident giving rise to the personal injury happened were a reference to the day the claimant’s legal disability ends; and (b) all other changes were made to give effect to this section. (4) This section does not prevent a claimant, or a person acting for a claimant, from complying with an obligation under this chapter while the claimant is under a legal disability. legal disability—a claimant is under a legal disability in the circumstances in which a person is under a disability for the Limitation Act 1985.

61 Respondent must attempt to resolve claim (1) A respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 6 months after the day the respondent receives a complying notice of claim)— (a) take any reasonable steps necessary to find out about the accident claimed to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating— (i) whether liability is admitted or denied; and (ii) if contributory negligence is claimed—the degree of the contributory negligence expressed as a percentage; and (c) if the claimant made an offer of settlement in the notice of claim—tell the claimant whether the respondent accepts or rejects the offer; and (d) if the claimant did not make an offer of settlement in the notice of claim—invite the claimant to make a written offer of settlement; and (e) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (f) either— (i) make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made; or (ii) settle the claim by accepting an offer made by the claimant.

(2) If a notice of claim is not a complying notice of claim, a respondent is taken to have been given a complying notice of claim when— (a) the respondent gives the claimant written notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or (b) the court makes a declaration that the claimant has remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance. (3) An offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession or control that may help the person to whom the offer is made make a proper assessment of the offer. (4) A respondent or claimant to whom a written offer, or counteroffer, of settlement is made must, unless a response to the offer is to be made under subsection (1) (c), respond in writing to the offer within the period prescribed by regulation after the day the respondent or claimant receives it (or, if no period is prescribed, within 3 months), indicating acceptance or rejection of the offer. (5) An admission of liability by a respondent under this section— (a) is not binding on the respondent in relation to any other claim; and (b) is not binding on the respondent at all if it later appears the admission was induced by fraud.

62 Consequences of noncompliance with pt 5.2 (1) If a claimant does not comply with the requirements of this part, a court in which the claimant begins a proceeding based on the claim— (a) may, on a respondent’s application in the proceeding, award in the respondent’s favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant’s noncompliance; and (b) may only award interest in the claimant’s favour for a period for which the claimant was in noncompliance if the court is satisfied there is a reasonable excuse for the noncompliance. (2) If a respondent does not comply with the requirements of this part, a court in which the respondent defends a proceeding based on the claim may, on a claimant’s application in the proceeding, award in the claimant’s favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent’s

Part 5.3 Obligations of parties to give documents and information

63 Purpose—pt 5.3 The purpose of this part is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.

64 Claimant to give documents etc to respondent (1) A claimant must give a respondent— (a) copies of the following in the claimant’s possession: (i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates; (ii) reports or surveillance film about the claimant’s medical (iii) reports or surveillance film about the claimant’s cognitive, functional or vocational capacity; and (b) information reasonably requested by the respondent about any of the following: (i) the accident; (ii) the nature of the personal injury and of any consequent disabilities; (iii) if applicable, the medical treatment and rehabilitation services the claimant has sought or obtained; (iv) the claimant’s medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant;

(v) the claimant’s claim for past and future economic loss; (vi) any claim known to the claimant for gratuitous services consequent on the claimant’s personal injury. Note Damages may not be awarded in a motor accident claim for gratuitous care (see Motor Accident Injuries Act 2019, s 249). (2) The claimant must give the copies mentioned in subsection (1) (a)— prescribed, within 1 month after the day the claimant gives notice of the claim under part 5.2, or purportedly under part 5.2); and subsection (1) (a) comes into the claimant’s possession later, within 7 days after the day it comes into the claimant’s (3) The claimant must respond to a request under subsection (1) (b) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the request is received). (4) If a respondent requires information given by a claimant under this section to be verified, the claimant must give the respondent a (5) If a claimant fails, without proper reason, to comply fully with this section, the claimant is liable for costs to the respondent resulting from the failure.

65 Respondent and claimant may jointly arrange for expert report (1) A respondent and a claimant may jointly arrange for an expert report about 1 or more of the following: (a) the cause, or probable cause, of the accident claimed to have given rise to the personal injury to which the claim relates and whether, in the expert’s opinion, 1 or more people (who may be named) are responsible for, or contributed to, the accident; (b) the cause, or probable cause, of the personal injury and whether, in the expert’s opinion, 1 or more people (who may be named) are responsible for, or contributed to, the accident; (c) the claimant’s medical condition or prospects of rehabilitation; (d) the claimant’s cognitive, functional or vocational capacity. (2) Neither the respondent nor the claimant is under an obligation to agree to a proposal to obtain a report under this section. (3) The person from whom an expert report is obtained must be a person, agreed to by both parties, with appropriate qualifications and experience in the relevant field. (4) The person preparing the expert report must give both parties a copy of the report.

66 Cost of expert report obtained by agreement (1) If an expert report is obtained by agreement between a respondent and a claimant and the claimant is liable for the cost of obtaining the report, the respondent must, at the claimant’s request, reimburse the claimant for the reasonable cost of obtaining the report. (2) However, a claimant’s right to reimbursement under this section is subject to any agreement between the claimant and the respondent.

67 Examination by expert if no agreement (1) This section applies if a respondent wants to obtain an expert report about 1 or more of the matters mentioned in section 65 (1) but fails to obtain the claimant’s agreement. (2) The claimant must comply with a request by the respondent to undergo, at the respondent’s expense, either or both of the following: (a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request; (b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience in the relevant field nominated by the respondent in the request. (3) However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious. (4) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2.

68 Respondent to give documents etc to claimant (1) A respondent must give a claimant— (a) copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim: (i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates; (ii) reports or surveillance film about the claimant’s medical

(iii) reports or surveillance film about the claimant’s cognitive, functional or vocational capacity; and (b) if asked by the claimant— (i) information that is in the respondent’s possession about the circumstances of, or the reasons for, the accident; or (ii) if the respondent is an insurer of a person for the claim— information that can be found out from the insured person for the claim about the circumstances of, or the reasons for, the accident. (2) The respondent must give the copies mentioned in subsection (1) (a)— prescribed, within 1 month after the day the respondent receives a complying notice of claim); and subsection (1) (a) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s (3) The respondent must respond to a request under subsection (1) (b) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the request is received). (4) If a claimant requires information given by a respondent under this section to be verified, the respondent must give the claimant a (5) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

69 Respondent to give documents etc to contributor (1) A respondent must give a contributor added by the respondent copies of the following that are in the respondent’s possession: (a) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates; (b) reports or surveillance film about the claimant’s medical (c) reports or surveillance film about the claimant’s cognitive, functional or vocational capacity; (d) reports or surveillance film about the claimant’s personal injury and of any consequent disabilities; (e) if applicable, information about the medical treatment and rehabilitation services the claimant has sought or obtained; (f) information about the claimant’s medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant; (g) information about the claimant’s claim for past and future economic loss; (h) information about any claim known to the respondent for gratuitous services consequent on the claimant’s personal injury. Note Damages may not be awarded in a motor accident claim for gratuitous care (see Motor Accident Injuries Act 2019, s 249). (2) The respondent must give the copies— prescribed, within 1 month after the day the respondent gives a contribution notice to the contributor); and

(b) to the extent that a report, film or other document or information mentioned in subsection (1) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s possession.

70 Contributor to give documents to respondent (1) A contributor must give the respondent who added the contributor copies of reports, surveillance film and other documents about the accident claimed to have given rise to the personal injury to which the claim relates that are in the contributor’s possession. (2) The contributor must give the copies— prescribed, within 1 month after the day the contributor is added as a contributor); and subsection (1) comes into the respondent’s possession later, within 7 days after the day it comes into the respondent’s

71 Alternative provision if more than 200 pages (1) In this section: relevant section means any of the following sections: • section 68 (Respondent to give documents etc to claimant) • section 69 (Respondent to give documents etc to contributor) • section 70 (Contributor to give documents to respondent). (2) This section applies to the extent that a relevant section requires a person (the disclosing person) to give copies of reports or other documents or information (relevant material) to someone else and the total number of pages of the copies exceeds 200 pages.

(3) Within the time the disclosing person would, apart from this section, be required to give relevant material to someone else under the relevant section, the disclosing person need only offer the other person a reasonable opportunity to inspect the material. (4) If the other person, whether on inspection or otherwise, by written notice given to the disclosing person, requires the disclosing person to give the other person copies of some or all of the relevant material, the disclosing person must comply with the requirement within— (a) if the total number of pages does not exceed 200—1 month after the day the requirement is made; or (b) in any other case—1 month after the day the other person pays 50 cents for each page by which the total number of pages exceeds 200 pages. Note If, under a provision of an Act or statutory instrument, an act is required to be done, the obligation to do the act continues until it is done (see Legislation Act, s 152).

Part 5.4 Other provisions—pre-court procedures

72 Nondisclosure of documents etc—client legal privilege (1) A party is not obliged to disclose a document or information under this chapter if the document or information is protected by client legal privilege. (2) However, an investigative report, medical report or report relevant to the claimant’s rehabilitation must be disclosed even though otherwise protected by client legal privilege. (3) A regulation may prescribe exceptions to subsection (2). (4) If a report mentioned in subsection (2) is required to be disclosed, it may be disclosed with the omission of passages containing only statements of opinion. investigative reports does not include a document prepared in relation to an application for, an opinion on or a decision about indemnity against the claim from the Territory.

73 Nondisclosure of documents etc—suspected fraud (1) If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply to the court for approval to withhold from disclosure under this chapter documents or information that— (a) would alert the claimant to the suspicion; or (b) could help further the fraud. (2) The application may be made without notice to the claimant. (3) If the court gives approval on application under subsection (1), the respondent may withhold from disclosure the documents or information in accordance with the approval.

Other provisions—pre-court procedures Part 5.4

74 Offence—failure to give document, film or information A person commits an offence if the person— (a) is a party for a motor accident claim; and (b) is obliged to give a document, surveillance film or information under this chapter; and (c) does not give the document, film or information in the way required under this chapter. Maximum penalty: 100 penalty units.

75 Consequences of failure to give document (1) This section applies if a party fails to comply with a provision of this chapter requiring the party to disclose a document to another party. (2) The document cannot be used by the party in a later court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise. (3) If the document comes to the other party’s knowledge, the document may be used by the other party.

76 Privilege generally for documents etc The information, reports and other documents given or disclosed under this chapter are protected by the same privileges as if disclosed in a proceeding in the Supreme Court.

77 No requirement to give documents etc if already in other party’s possession This chapter does not require a party to give a document or other information to another party if the document or information is already in the possession of the other party.

78 Court’s power to enforce compliance with pt 5.2 and pt 5.3 (1) If a party (the first party) fails to comply with a duty imposed under part 5.2 or part 5.3, the court may, on the application of a party to whom the duty is owed, order the first party to take stated action to remedy the noncompliance within a time stated by the court. (2) The court may make consequential or ancillary orders, including orders about costs.

79 Need for urgent proceeding (1) The court, on application by a claimant, may give leave to the claimant to begin a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this chapter if the court is satisfied there is an urgent need to begin the proceeding. (2) The order giving leave may be made on conditions the court considers appropriate having regard to the circumstances of the case. (3) If leave is given, the proceeding begun by leave is stayed until the claimant complies with this chapter or the proceeding is discontinued or otherwise ends. (4) However, the proceeding is not stayed if— (a) the court is satisfied that— (i) the claimant is suffering from a terminal condition; and (ii) the trial of the proceeding should be expedited; and (b) the court orders the proceeding be given priority in the allocation of a trial date. (5) If, under subsection (4), the proceeding is not stayed, this chapter (other than this section) does not apply in relation to the personal injury.

Other provisions—pre-court procedures Part 5.4

80 False or misleading statements (1) A person commits an offence if— (a) the person makes a statement in a notice, response or other document given under this chapter; and (b) the person does so knowing that the statement— (i) is false or misleading; or (ii) omits anything without which the statement is misleading. Maximum penalty: 100 penalty units, imprisonment for 1 year or (2) Subsection (1) (b) (i) does not apply if the statement is not false or misleading in a material particular. (3) Subsection (1) (b) (ii) does not apply if the omission does not make the statement misleading in a material particular. (4) A person commits an offence if— (a) the person makes a statement in a notice, response or other document given under this chapter; and (b) the person is reckless about whether the statement— (i) is false or misleading; or (ii) omits anything without which the statement is misleading. Maximum penalty: 50 penalty units, imprisonment for 6 months or (5) Subsection (4) (b) (i) does not apply if the statement is not false or misleading in a material particular. (6) Subsection (4) (b) (ii) does not apply if the omission does not make the statement misleading in a material particular.

Part 7.1 Damages for personal injuries— exclusions and limitations

92 Definitions—pt 7.1 claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s intoxicated—a person is intoxicated if under the influence of alcohol or a drug to the extent that the person’s capacity to exercise appropriate care and skill is impaired.

93 Application—pt 7.1 (1) This part applies to all claims for damages for personal injury, including claims to which the Motor Accident Injuries Act 2019, chapter 5 (Motor accident injuries—common law damages) applies. (2) However, this part does not apply to claims under the Workers Compensation Act 1951.

94 Exclusion of liability if conduct an offence (1) Liability for damages is excluded if the court— (a) is satisfied on the balance of probabilities that the accident happened while the injured person was engaged in conduct that is an indictable offence; and

(b) is satisfied on the balance of probabilities that the injured person’s conduct contributed materially to the risk of injury. (2) Despite this exclusion, the court may award damages in a particular case if satisfied that— (a) the circumstances of the case are exceptional; and (b) in the circumstances of the case, the exclusion would operate harshly and unjustly.

95 Presumption of contributory negligence—injured person intoxicated (1) Contributory negligence must be presumed if— (a) the injured person was— (i) at least 16 years old at the time of the accident; and (ii) intoxicated at the time of the accident; and (b) the defendant claims contributory negligence. (2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that— (a) the intoxication did not contribute to the accident; or (b) the intoxication was not self-induced. (3) If the presumption is not rebutted, the damages the injured person

96 Presumption of contributory negligence—injured person relying on intoxicated person (1) Contributory negligence must be presumed if— (a) the injured person— (i) was at least 16 years old at the time of the accident; and (ii) relied on the care and skill of a person (A) who was intoxicated at the time of the accident; and (iii) knew, or ought to have known, that A was intoxicated; and (b) the accident was caused by A’s negligence; and (c) the defendant claims contributory negligence by the injured (2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that— (a) the intoxication did not contribute to the accident; or (b) the injured person could not reasonably be expected to have avoided the risk. (3) If the presumption is not rebutted, the damages the injured person (4) For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver. (5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.

97 Presumption of contributory negligence—injured person not wearing seatbelt etc (1) Contributory negligence must be presumed if the injured person was injured in a motor accident and was at least 16 years old at the time of the accident and— (a) was not wearing a seatbelt at the time of the accident as required under the Road Transport (Safety and Traffic Management) Act 1999; or (b) 1 of the following factors contributed to the accident or the extent of the injury: (i) the injured person was not wearing a helmet at the time of the accident as required under the Road Transport (Safety and Traffic Management) Act 1999; (ii) the injured person was a passenger in or on a motor vehicle with a passenger compartment but was not in the compartment at the time of the accident. (2) The presumption can be rebutted only as provided in subsections (3) and (4). (3) For subsection (1) (a), the presumption can be rebutted if the injured person establishes, on the balance of probabilities, that— (a) the injury suffered by the injured person was less serious than it would have been if the injured person had been wearing a seatbelt at the time of the accident; or (b) the injured person was not capable of fastening a seatbelt without assistance from someone else. (4) For subsection (1) (b) (ii), the presumption can be rebutted if the injured person establishes, on the balance of probabilities, that the injured person could not reasonably be expected to have avoided the risk.

(5) If the presumption is not rebutted, the damages the injured person

98 Damages for loss of earnings (1) In assessing damages for loss of earnings in relation to a claim, the court must disregard earnings above the limit mentioned in subsection (2). (2) The limit is 3 times average weekly earnings a week. average weekly earnings means— (a) the average weekly earnings seasonally adjusted for the ACT (all males total earnings) in Average Weekly Earnings, Australia (State and Territory Earnings) issued by the Australian statistician; or Note Average Weekly Earnings, Australia is issued in May and November and is available at www.abs.gov.au. (b) if the Australian statistician issues a publication (however described) containing average weekly earnings in substitution for, or instead of, the average weekly earnings mentioned in paragraph (a)—the substituted average weekly earnings. loss of earnings means— (a) past economic loss because of loss of earnings or the deprivation or impairment of earning capacity; and (b) future economic loss because of loss of prospective earnings or the deprivation or impairment of prospective earning capacity.

99 Tariffs for damages for non-economic loss (1) In deciding damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceeding. (2) For that purpose, the parties to the proceeding or their lawyers may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions. (3) This section does not change the rules for deciding other damages. non-economic loss includes the following: (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life; (d) disfigurement. Note Under the Motor Accident Injuries Act 2019, the only damages that may be awarded for non-economic loss are damages for loss of quality of life (see that Act, s 242).

Part 7.2 Loss of capacity to perform domestic services Part 7.2 Loss of capacity to perform domestic services 100 Damages for loss of capacity to perform domestic (1) A person’s liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured. (2) In an action for the recovery of damages mentioned in subsection (1), it does not matter— (a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or (b) that the injured person was not paid to perform the services; or (c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or (d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not). (a) that gives rise to a liability in tort; or

Contributory negligence Part 7.3

101 Definitions—pt 7.3 damage means loss of any kind (including loss of life, personal injury, damage to property and economic loss). (a) that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or

102 Apportionment of liability—contributory negligence (1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong— (a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and (b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage. (2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.

(3) If an Act or contract providing for the limitation of liability applies to the claim, the amount of damages awarded to the claimant because of subsection (1) must not exceed the maximum limit applying to the claim. (4) This section does not defeat any defence arising under a contract. (5) This section has effect subject to part 7.1 (Damages for personal

103 Joint wrongdoers Part 2.5 (Proceedings against and contributions between wrongdoers) applies if 2 or more people are liable (or, if they had all been sued, would have been liable) under section 102 for the damage suffered by a person.

104 Claims by third parties—contributory negligence (a) a person (the first person) suffers damage partly because of the first person’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong; and (b) because of the damage to the first person a third person suffers damage. (2) In an action by the third person, the contributory negligence of the first person must be taken into account under section 102 (Apportionment of liability—contributory negligence) in reducing the damages recoverable by the third person for the damage as if the contributory negligence were a failure by the third person to take reasonable care.

Contributory negligence Part 7.3

105 Pleading of statutory limitation period—contributory negligence (1) This section applies to a case to which section 102 (Apportionment of liability—contributory negligence) applies if— (a) the claimant suffered damage partly because of the wrong of 2 or more people; and (b) 1 of those people avoids liability to another of those people (or his or her personal representative) by pleading a statutory limitation period on the time within which proceedings can be taken. (2) The person who avoids liability is not entitled to recover damages or contribution from the other person (or his or her personal representative) because of section 102.

107A Definitions—ch 7A apportionable claim—see section 107B. concurrent wrongdoer—see section 107D. defendant, in a proceeding, includes anyone joined as a defendant or other party in the proceeding (other than as a claimant), whether joined under this chapter, under rules of court or otherwise.

107B Application of ch 7A—apportionable claims (1) This chapter applies to apportionable claims. (2) An apportionable claim is— (a) a claim for economic loss or damage to property in an action for damages (whether in tort, under contract or otherwise) arising from a failure to take reasonable care; or (b) a claim for economic loss or damage to property in an action for damages under the Australian Consumer Law (ACT), section 236 for a contravention of that law, part 3.1 (Unfair practices). (3) However, none of the following is an apportionable claim: (a) a claim arising out of personal injury; (b) a consumer claim; (c) a claim prescribed by regulation for this paragraph. (4) Also, without limiting subsection (3), none of the following is an apportionable claim: (a) a claim under the Discrimination Act 1991;

(b) a claim to which the Motor Accident Injuries Act 2019, chapter 5 (Motor accident injuries—common law damages) applies; (c) a claim under the Workers Compensation Act 1951. (5) A regulation made for subsection (3) (c) may make provision in relation to their application to claims arising from acts or omissions that happened before the regulation was notified. (6) For this chapter, there is a single apportionable claim in a proceeding in relation to the same loss or damage even if the claim for the loss or damage is based on more than 1 cause of action (whether or not of the same or a different kind).

107C Meaning of consumer claim—ch 7A (1) A consumer claim is a claim by an individual (the claimant) relating to— (a) goods or services acquired by the claimant from a defendant, or the supply of goods or services to the claimant by a defendant, for the claimant’s personal, domestic or household use or consumption; or (b) personal financial advice supplied to the claimant by a defendant. (2) However, a claim relating to goods or services is not a consumer claim if, in the course of business, the claimant holds himself or herself out as acquiring the goods or services from the defendant for the purpose of— (a) resupplying them; or (b) using them up or transforming them in or in relation to a process of manufacture or production; or (c) repairing or treating other goods or fixtures on land.

acquire—see the Australian Consumer Law (ACT), section 2 (1). business—see the Australian Consumer Law (ACT), section 2 (1). goods—see the Australian Consumer Law (ACT), section 2 (1). resupply, of goods acquired from a person, includes— (a) a supply of the goods (the first goods) to another person in an altered form or condition; and (b) a supply to another person of goods in which the first goods have been incorporated. services—see the Australian Consumer Law (ACT), section 2 (1). supply—see the Australian Consumer Law (ACT), section 2 (1).

107D Concurrent wrongdoers (1) For this chapter, a concurrent wrongdoer, for a claim, is 1 of 2 or more people whose acts or omissions (or act or omission) caused, independently of each other or jointly, the loss or damage the subject of the claim. (2) For this chapter, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.

107E Certain wrongdoers not to have benefit of apportionment (1) This chapter does not limit the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in a proceeding involving an apportionable claim if the concurrent wrongdoer intended to cause, or fraudulently caused, the economic loss or damage to property the subject of the claim. (2) The liability of an excluded concurrent wrongdoer must be decided in accordance with the legal rules (if any) that, apart from this chapter, are relevant.

(3) The liability of any other concurrent wrongdoer is to be decided in accordance with this chapter.

107F Proportionate liability for apportionable claims (1) In a proceeding involving an apportionable claim— (a) the liability of a defendant who is a concurrent wrongdoer for the claim is limited to an amount reflecting the proportion of the loss or damage claimed that the court considers just, having regard to the extent of the defendant’s responsibility for the loss or damage; and (b) the court must not give judgment against the defendant for more than that amount. (2) In apportioning responsibility between defendants in the proceeding— (a) the court must exclude the proportion of the loss or damage in relation to which the claimant is contributorily negligent under any relevant law; and (b) the court may consider the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding. (3) If the proceeding involves an apportionable claim and a claim that is not an apportionable claim— (a) liability for the apportionable claim must be decided in accordance with this chapter; and (b) liability for the other claim must be decided in accordance with the legal rules (if any) that, apart from this chapter, are relevant. (4) This chapter applies in a proceeding involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding.

107G Defendant to tell claimant about concurrent wrongdoers (a) a defendant in a proceeding involving an apportionable claim has reasonable grounds to believe that a particular person (the other person) may be a concurrent wrongdoer for the claim; and (b) the defendant does not give the claimant, as soon as practicable, written notice of the information the defendant has about— (i) the identity of the other person; and (ii) the circumstances that may make the other person a concurrent wrongdoer for the claim; and (c) the claimant unnecessarily incurs costs in the proceeding because the claimant did not know that the other person may be a concurrent wrongdoer for the claim. (2) The court hearing the proceeding may order that the defendant pay all or part of the claimant’s costs. (3) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.

107H Contribution not recoverable from defendant A defendant against whom judgment is given under this chapter as a concurrent wrongdoer for an apportionable claim cannot be required to— (a) contribute to any damages or contribution recovered from another concurrent wrongdoer for the claim (whether or not the damages or contribution are recovered in the same proceeding in which judgment is given against the defendant); or (b) indemnify another concurrent wrongdoer for the claim.

107I Subsequent proceeding by claimant (1) This chapter (or any other law) does not prevent a claimant for an apportionable claim who has recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing a subsequent proceeding against any other concurrent wrongdoer for the loss or damage. (2) However, in any subsequent proceeding the claimant cannot recover an amount of damages that, having regard to any damages previously recovered by the claimant for the loss or damage, would result in the claimant receiving compensation for loss or damage that is more than the loss or damage actually sustained by the claimant.

107J Including non-party concurrent wrongdoer (1) In a proceeding in a court involving an apportionable claim, any number of people may be included as defendants. (2) However, a person may be included as a defendant only with the court’s leave. (3) The court must not give leave for a person to be included as a defendant if the person was a party to a previously concluded proceeding in relation to the claim.

107K Ch 7A does not affect certain other liability This chapter does not— (a) prevent a person from being held vicariously liable for a proportion of an apportionable claim for which someone else is liable; or (b) prevent a person from being held jointly and severally liable for the damages awarded against someone else as agent of the person; or

(c) prevent a partner from being held severally liable with another partner for the proportion of an apportionable claim for which the other partner is liable; or (d) affect the operation of any other Act to the extent that the other Act imposes several liability on anyone for what would otherwise be an apportionable claim.

Liability of public and other authorities Chapter 8

Chapter 8 Liability of public and other authorities

108 Application—ch 8 (1) This chapter applies in relation to civil liability in tort. (2) This chapter extends to any such liability even if the damages are sought in an action for breach of contract or any other action. (3) However, this chapter does not apply to— (a) a claim to which the Motor Accident Injuries Act 2019, chapter 5 (Motor accident injuries—common law damages) applies; or (b) a claim under the Workers Compensation Act 1951.

109 Definitions—ch 8 duty of care means a duty to take reasonable care or to exercise reasonable skill (or both). public or other authority means any of the following: (a) the Territory; (b) an administrative unit; (c) a territory authority; (d) an entity prescribed by regulation for this paragraph; (e) any entity so far as the entity exercises a function prescribed by regulation for this paragraph.

110 Principles about resources, responsibilities etc of public or other authorities The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care: (a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions; (b) the general allocation of the resources by the authority is not open to challenge; (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 only by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with the general procedures and 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.

111 Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to a proceeding based on a claimed breach of a statutory duty by a public or other authority (the defendant authority) in relation to the exercise of, or a failure to exercise, a function of the defendant authority. (2) For the proceeding, an act or omission of the defendant authority is a breach of statutory duty only if the act or omission was in the circumstances so unreasonable that no authority having the functions of the defendant authority could properly consider the act or omission to be a reasonable exercise of its functions. (3) For a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 112.

Liability of public and other authorities Chapter 8

112 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant. (2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.

113 Special nonfeasance protection in relation to roads etc (1) A public or other authority is not liable in a proceeding for harm arising from a failure of the authority to maintain, repair or renew a road, or to consider maintaining, repairing or renewing a road, unless at the time of the claimed failure the authority knew, or ought reasonably to have had known, of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate— (a) to create a duty of care in relation to a risk only because the authority has actual knowledge of the risk; or (b) to affect any standard of care that would otherwise apply in relation to a risk. road means a street, road, lane, cyclepath, footpath or paved area that is open to, or used by, the public.

114 Exercise of function or decision to exercise does not create duty The fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.

Definitions and application—ch 8A Part 8A.1

Part 8A.1 Definitions and application— ch 8A

114A Meaning of child abuse claim In this Act: child abuse claim, by or on behalf of a person, means a claim in relation to a personal injury that arises from child abuse to which the person was subjected when the person was a child. 114AA Meaning of child abuse—ch 8A (1) In this chapter: child abuse means physical abuse or sexual abuse of a child. physical abuse does not include conduct that is justified or excused under a law applying in the Territory. sexual abuse, of a child, includes any of the following involving the child: (a) an offence of a sexual nature; (b) misconduct of a sexual nature. 114B Meaning of related trust—ch 8A (1) In this chapter: related trust, in relation to an unincorporated body, means a trust controlled by the unincorporated body which the body uses to conduct the body’s activities.

Part 8A.1 Definitions and application—ch 8A (2) For this section, a related trust is controlled by an unincorporated body if— (a) the body has direct or indirect power to control the application of income, or the distribution of the property, of the trust; or (b) the body has direct or indirect power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of any other entity; or (c) the body has direct or indirect power to appoint or remove a trustee of the trust; or (d) the body has direct or indirect power to appoint or remove beneficiaries of the trust; or (e) the trustee of the trust is accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the body; or (f) the body has direct or indirect power to decide the outcome of any other decision about the trust’s operations; or (g) a member of the body has, under the trust deed for the trust, a power mentioned in paragraphs (a) to (f). 114BA Time when child abuse etc happens This chapter applies in relation to child abuse or alleged child abuse of a person who is the subject of a child abuse claim, regardless of when the abuse or alleged abuse happened.

Liability of organisations Part 8A.1A 114BB Definitions—pt 8A.1A employee, of an organisation—see section 114BC. organisation includes the following: (a) an administrative unit; (b) a territory authority; (c) an unincorporated body. responsible, for a child—see section 114BD. 114BC Meaning of employee—pt 8A.1A employee, of an organisation, includes an individual who is akin to an employee of the organisation. (2) For this section, an individual is akin to an employee of an organisation if— (a) the individual carries out activities that are— (i) a part of the ordinary activities carried out by the organisation; and (ii) for the benefit of the organisation; or (b) a circumstance prescribed by regulation applies to the individual. (3) A regulation under subsection (2) (b) may also prescribe a circumstance in which an individual is not akin to an employee if the circumstance applies to the individual.

114BD Organisations that are responsible for child (1) An organisation is responsible for a child if it, including any part of it, exercises care, supervision or authority over the child. (2) If an organisation, including any part of it, delegates the exercise of care, supervision or authority over the child to another organisation, in whole or in part, each organisation is responsible for the child. 114BE Organisations vicariously liable for child abuse perpetrated by employees (1) An organisation that is responsible for a child is vicariously liable for child abuse perpetrated against the child by an employee of the organisation if— (a) the apparent performance by the employee of a role in which the organisation placed the employee supplies the occasion for the perpetration of the child abuse by the employee; and (b) the employee takes advantage of the occasion to perpetrate the child abuse. (2) In determining whether the apparent performance by the employee of a role in which the organisation placed the employee supplied the occasion for the perpetration of child abuse against a child, a court must take into account whether the organisation placed the employee in a position in which the employee has one or more of the following: (a) authority, power or control over the child; (b) the trust of the child; (c) the ability to achieve intimacy with the child. (3) This section does not affect, and is in addition to, the common law in relation to vicarious liability.

Part 8A.2 Institutional child abuse— proceedings against unincorporated bodies

114C Unincorporated bodies (1) This part applies to an unincorporated body regardless of whether the body has— (a) a written constitution or fixed membership; or (b) any other particular attribute. (2) Anything an unincorporated body may do, or is required to do, under this part may be done by any management member of the body. management member, of an unincorporated body, means— (a) a member of the body’s management committee (however described); or (b) if the body does not have a management committee—a person who takes part in, or who could take part in or exercise control over, the management of the body, regardless of the person’s title or position.

114D Unincorporated body may nominate defendant (a) a person brings, or wishes to bring, a child abuse claim against an unincorporated body; and (b) but for being unincorporated, the unincorporated body would be capable of being sued.

(2) The unincorporated body may, with the nominee’s consent, nominate an entity that is capable of being sued to act as the defendant for the unincorporated body in a proceeding for the child abuse claim. (3) If a proceeding for the child abuse claim has started before the unincorporated body has made a nomination, unless the court otherwise orders, a nomination may be made no later than 120 days after the day the proceeding started. (4) If an unincorporated body makes a nomination under subsection (2)— (a) the child abuse claim may be brought against the nominee; and (b) the nominee is taken to be the defendant for the body in the proceeding for the claim for all purposes; and (c) the court may find the nominee liable, on behalf of the body, for any amount that the body would have been liable for if the body were incorporated and capable of being sued.

114E Court may appoint related trust as defendant (a) a proceeding for a child abuse claim against an unincorporated body has started and the body has not made a nomination under section 114D (2) within 120 days after the day the proceeding started; or (b) an unincorporated body nominates an entity under section 114D (2) in relation to a child abuse claim and the nominated entity— (i) is not capable of being sued; or (ii) does not have sufficient assets or property to meet any judgment or order that may be made against it in relation to the claim.

(2) The plaintiff in a proceeding for the child abuse claim may apply to the court for an order that a related trust be appointed as the defendant for the unincorporated body in the proceeding. (3) If the plaintiff makes an application under subsection (2), the unincorporated body must, within 28 days of the application being made, notify the court about— (a) any related trusts in relation to the body; and (b) the financial capacity of each trust. (4) The court may appoint 1 or more related trusts notified under subsection (3), or other related trusts in relation to the unincorporated body, as the defendant for the body in the proceeding. (5) If the court makes an appointment under subsection (4)— (a) the child abuse claim may be brought or continued against the appointee; and (b) the appointee is taken to be the defendant for the unincorporated body in the proceeding for the claim for all purposes; and (c) anything done by the unincorporated body is taken to have been done by the appointee; and (d) any duty or obligation of the unincorporated body in relation to the proceeding is a duty or obligation owed by the appointee; and (e) the court may find the appointee liable, on behalf of the unincorporated body, for any amount that the body would have been liable for if the body were incorporated and capable of being sued.

114F Proceedings may be commenced before nomination or appointment (1) A proceeding for a child abuse claim may be commenced or continued against an unincorporated body in the name of the body before— (a) a nomination under section 114D (2) is made; or (b) an appointment is made under section 114E (4). (2) If a proceeding is commenced or continued under subsection (1) against the unincorporated body, the court may make any interlocutory orders it considers appropriate against the body as if it were incorporated and capable of being sued. (3) The nomination or appointment of an entity as a defendant for the unincorporated body in a proceeding for a child abuse claim does not relieve the body, or any member of the body, from any obligation under an order under subsection (2).

114G Liability of trustee if nominated or appointed as defendant (1) This section applies if a related trust is nominated or appointed under this part as the defendant for an unincorporated body in a proceeding for a child abuse claim. (2) Despite any territory law or anything in the trust deed, the trustee of the related trust may— (a) accept liability in relation to the child abuse claim; and (b) if nominated as defendant—consent to the nomination; and (c) give the court any information about the trust that may be required for this part including information about the trust’s financial capacity; and

(d) if the trust is found liable, or the trustee accepts liability, in relation to the claim— (i) apply trust property to pay the liability; and (ii) be indemnified out of the trust property of the trust in relation to the payment of the liability regardless of any limitation on any right of indemnity the trustee may have. (3) A trustee of a related trust is not liable under this part— (a) for an amount more than the total value of the trust property; or (b) for breach of trust only because of exercising a power under this part or complying with this part. (4) This section is declared to be a corporations legislation displacement provision for the Corporations Act, section 5G (Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws). Note Subsection (4) ensures that any provision of the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cwlth) with which this section would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. liability, in relation to a child abuse claim, includes— (a) any unpaid judgment debt arising from the proceeding for the claim; and (b) any amount paid in settlement of the proceeding; and (c) any costs associated with the proceeding. trustee, of a related trust, if the trustee is a corporation, includes any corporator, member or director of the corporation.

114H Defendant may rely on defences and immunities etc (1) In a proceeding for a child abuse claim, a defendant for an unincorporated body nominated under section 114D (2), or appointed under section 114E (4)— (a) may rely on any defence or immunity the body would have been able to rely on had the body been incorporated and capable of being sued; and (b) is entitled to be indemnified under any policy of insurance in relation to the claim that the body would have been indemnified under had the body been incorporated and capable of being sued. (2) Nothing in subsection (1) (b) excludes an unincorporated body from any coverage or indemnity of the body under an insurance policy in relation to a child abuse claim.

Institutional child abuse—setting aside abuse settlement agreements Part 8A.3 Part 8A.3 Institutional child abuse—setting aside abuse settlement agreements

114I Object—pt 8A.3 The object of this part is to provide a way, for a person who is the subject of a child abuse claim because the person suffered child abuse, to seek to have an abuse settlement agreement set aside if— (a) when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or (b) when the agreement is sought to be set aside the agreement is, in all the circumstances, not a just and reasonable agreement.

114J Definitions—pt 8A.3 abuse settlement agreement means an agreement— (a) that settles a child abuse claim and prevents the exercise of an action on a cause of action to which the Limitation Act 1985, section 21C (Personal injury resulting from child abuse) applies; and (b) that— (i) happened before the commencement of the Limitation Act 1985, section 21C, and at a time when a limitation period applying to the cause of action had ended; or (ii) happened before the commencement of this part, and the agreement is not just and reasonable in the circumstances; or

Part 8A.3 Institutional child abuse—setting aside abuse settlement agreements (iii) happened before the commencement of part 8A.1A, and the child abuse claim involved child abuse by a person who would have been an employee of an organisation if that part had been in force when the agreement was made. applicant—see section 114K (1). (2) For the definition of abuse settlement agreement, a limitation period that ended at a particular time is taken to have ended even if it were possible to seek the leave of a court to extend the period at the time the period ended.

114K Court may set aside abuse settlement agreement (1) This section applies if a person (the applicant) is prevented from exercising an action on a cause of action because of an abuse settlement agreement. (2) The applicant may— (a) begin a proceeding on the cause of action in a court with jurisdiction to hear the proceeding; and (b) apply to the court to set aside the agreement. (3) The court may set aside the agreement if the court is satisfied that— (a) when the agreement was made there were legal barriers to the person being fully compensated through a legal cause of action; or (b) when the application is made to set aside the agreement, the agreement is, in all the circumstances, not a just and reasonable agreement. (4) The court may consider the following in deciding whether to set aside the agreement: (a) the amount paid to the applicant under the agreement; (b) the bargaining position of the parties to the agreement;

Institutional child abuse—setting aside abuse settlement agreements Part 8A.3 (c) the conduct of the following people in relation to the agreement: (i) a party other than the applicant; (ii) a legal representative of a party other than the applicant; (d) any other matter the court considers relevant. (5) The Evidence Act 2011, section 131 (1) (Exclusion of evidence of settlement negotiations) does not prevent evidence being adduced in a proceeding begun under this section, even if the evidence is of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement of the dispute to which the agreement relates.

114L Court may also set aside other things (1) If the court decides to set aside an abuse settlement agreement under this part, it may also set aside any of the following that gives effect to the agreement: (a) a contract, deed or other agreement; (b) an order or judgment of the court or of a lower court. (2) However, the court must not set aside the following: (a) a deed of release signed by or on behalf of the applicant in acceptance of an offer under the national redress scheme and an agreement relating to a relevant prior payment that has been taken into account in the offer; (b) an agreement to the extent to which— (i) the agreement settled a cross-claim between 2 or more defendants; or (ii) one defendant indemnified another; (c) a contract of insurance.

Part 8A.3 Institutional child abuse—setting aside abuse settlement agreements national redress scheme means the National Redress Scheme for Institutional Child Sexual Abuse established under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cwlth), section 8.

114M Effect of setting aside abuse settlement agreement (1) A court may set aside an abuse settlement agreement or anything else in accordance with this part only to the extent that it relates to the applicant. (2) An agreement and anything else set aside in accordance with this part is void but only to the extent that it relates to the applicant. (3) An amount paid, including legal costs or disbursements, or other consideration given under the agreement— (a) is not recoverable despite the agreement being void; and (b) may be taken into account by a court in deciding damages in a proceeding on a cause of action to which the agreement relates.

115 Objects—ch 9 The objects of this chapter are— (a) to enact provisions to promote uniform laws of defamation in Australia; and (b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. Note The Human Rights Act 2004 provides for the following human rights that are particularly relevant to this chapter: • privacy and reputation (see s 12) • freedom of expression (see s 16). Under the Human Rights Act 2004, s 28 human rights may be subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society.

116 Definitions—ch 9 access prevention step, in relation to the publication of digital matter, means a step— (a) to remove the matter; or (b) to block, disable or otherwise prevent access, whether by some or all people, to the matter. aggrieved person, for division 9.3.1 (Concerns notices and offers to applicable period, for an offer to make amends, for division 9.3.1 (Concerns notices and offers to make amends)—see section 126. associated entity—see the Corporations Act, section 50AAA. Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence). Australian jurisdiction means— (a) a State; or (b) a Territory; or (c) the Commonwealth. Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath (including a royal commission or other special commission of inquiry). Note Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1). caching service, for division 9.2.2A (Exemptions from liability for

concerns notice, for division 9.3.1 (Concerns notices and offers to make amends)—see section 124A. conduit service, for division 9.2.2A (Exemptions from liability for country includes— (a) a federation and a state, territory, province or other part of a federation; and (b) an Australian jurisdiction. digital intermediary, in relation to the publication of digital matter, means a person, other than an author, originator or poster of the matter, who provides or administers the online service by means of which the matter is published. Note There may be more than 1 digital intermediary in relation to the publication of the same digital matter. digital matter means matter published in electronic form by means of an online service. document means any record of information, and includes— (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph. electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or

excluded corporation—see section 121. further particulars notice, for division 9.3.1 (Concerns notices and offers to make amends)—see section 124A (3). general law means the common law and equity. matter includes— (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and (b) a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; and (c) a letter, note or other writing; and (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person. matter in question, for division 9.3.1 (Concerns notices and offers to offer to make amends means an offer to make amends under division 9.3.1. online service means a service provided to a person, whether or not it is requested or it is for a fee or reward, to enable the person to use the internet, including, without limitation, a service enabling a person— (a) to access or connect to the internet; or (b) to use the internet to do 1 or more of the following: (i) send or receive content; (ii) store content; (iii) index content;

(iv) search for content; (v) share content; (vi) interact with other people. 1 an internet-based social media platform 2 a forum created or administered by a person using a facility provided by an internet-based social media platform that enables users to share content or interact with other users about a topic 3 a website or other internet-based platform that enables knowledge to be shared by or with its users parliamentary body means— (a) a parliament or legislature of any country; or (b) a house of a parliament or legislature of any country; or (c) a committee of a parliament or legislature of any country; or (d) a committee of a house or houses of a parliament or legislature of any country. poster, in relation to the publication of digital matter, means a person who uses the online service by means of which the matter is published for the purpose of communicating the matter to 1 or more other people. publisher, for division 9.3.1 (Concerns notices and offers to make amends)—see section 124. search engine, for division 9.2.2A (Exemptions from liability for search engine provider, for a search engine, for division 9.2.2A (Exemptions from liability for digital intermediaries)—see section 122B. search result, for division 9.2.2A (Exemptions from liability for

storage service, for division 9.2.2A (Exemptions from liability for substantially true means true in substance or not materially different from the truth. this jurisdiction means the Territory.

117 Ch 9 binds Crown Note The Legislation Act, s 121 deals with the binding effect of Acts.

Defamation and the general law Division 9.2.1

Division 9.2.1 Defamation and the general law

118 Tort of defamation (1) This chapter relates to the tort of defamation at general law. (2) This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). (3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as in force immediately before the commencement of this section had never been enacted.

119 Distinction between slander and libel abolished (1) The distinction at general law between slander and libel remains abolished. (2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

120 Single cause of action for multiple defamatory imputations in same matter A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.

121 Certain corporations do not have cause of action for defamation (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if— (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or (b) it has fewer than 10 employees and is not an associated entity of another corporation; and the corporation is not a public body. (3) In counting employees for the purposes of subsection (2) (b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent. (5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation. corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body. employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is— (a) engaged in the day-to-day operations of the corporation other than as a volunteer; and (b) subject to the control and direction of the corporation. public body means a local government body or other governmental or public authority constituted by or under a law of any country.

Causes of action for defamation Division 9.2.2

122 No cause of action for defamation of, or against, deceased persons (1) A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to— (a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or (b) the publication of defamatory matter by a person who has died since publishing the matter. (2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.

122A Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the (2) For subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss. (3) The judicial officer in defamation proceedings is to determine whether the serious harm element is established. (4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)— (a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and

(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established). (5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer must determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial). (6) The matters a judicial officer may take into account in deciding whether there are special circumstances for subsection (5) include (but are not limited to) the following: (a) the cost implications for the parties; (b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings. (7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element. (8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).

Exemptions from liability for digital intermediaries Division 9.2.2A Division 9.2.2A Exemptions from liability for digital intermediaries

122B Definitions—div 9.2.2A In this division: caching service means an online service whose principal function is to provide automatic, intermediate and temporary storage of content for the purpose of making the onward electronic transmission of the content more efficient for its users. a service for temporarily and automatically storing files that are most frequently downloaded by users of a website to speed up the download time for the files conduit service means an online service whose principal function is to enable its users to access or use networks or other infrastructure to connect to, or send or receive data by means of, the internet. 1 a service provided by an internet service provider enabling its users to connect to the internet 2 an internet-based service enabling its users to send emails or send text messages to other people search engine means a software application or system designed to enable its users to search for content on the internet. search engine provider, for a search engine, means a person who maintains, or provides users with access to the search functions of, the search engine. search result means a result generated by a search engine that is limited to identifying a webpage on which content is located by reference to 1 or more of the following: (a) the title of the webpage; (b) a hyperlink to the webpage;

(c) an extract from the webpage; (d) an image from the webpage. storage service means an online service, other than a caching service, whose principal function is to enable its users to store content remotely. an internet-based cloud service enabling its users to store documents, videos or photographs for later retrieval

122C Exemption for digital intermediaries providing caching, conduit or storage services (1) A digital intermediary is not liable for defamation for the publication of digital matter if the intermediary proves— (a) the matter was published using 1 or more of the following services provided by the intermediary: (i) a caching service; (ii) a conduit service; (iii) a storage service; and (b) the intermediary’s role in the publication was limited to providing 1 or more of the services mentioned in paragraph (a); and (c) the intermediary did not do any of the following: (i) initiate the steps required to publish the matter; (ii) select any of the recipients of the matter; (iii) encourage the poster of the matter to publish the matter; (iv) edit the content of the matter, whether before or after it was published;

Exemptions from liability for digital intermediaries Division 9.2.2A (v) promote the matter, whether before or after it was (2) Subsection (1) (c) does not apply in relation to action taken because it is required by or under a law of an Australian jurisdiction or an order of an Australian court or Australian tribunal. action taken to comply with a code of conduct or other document regulating conduct that a digital intermediary is required to comply with by a law of an Australian jurisdiction (3) Subsection (1) applies regardless of whether the digital intermediary knew, or ought reasonably to have known, the digital matter was defamatory.

122D Exemption for search engine providers (1) A search engine provider for a search engine is not liable for defamation for— (a) the publication of digital matter comprised of search results if the provider’s role was limited to providing an automated process for the user of the search engine to generate the results; or (b) the publication of digital matter to which the search results provide a hyperlink if the provider’s role in the publication of the matter is limited to the role mentioned in paragraph (a). (2) Subsection (1) does not apply in relation to search results, or to digital matter to which the search results provide hyperlinks, to the extent the results are promoted or prioritised by the search engine provider because of a payment or other benefit given to the provider by or on behalf of a third party. (3) Subsection (1) applies regardless of whether the search engine provider knew, or ought reasonably to have known, the digital matter was defamatory.

122E Early determination of digital intermediary exemptions (1) The judicial officer in defamation proceedings— (a) is to determine whether a defendant has a digital intermediary exemption; and (b) is to determine whether a digital intermediary exemption is established as soon as practicable before the trial for the proceedings commences unless satisfied that there are good reasons to postpone the determination to a later stage of the proceedings; and (c) may make any orders the judicial officer considers appropriate concerning the determination of the issue, including dismissing the proceedings if satisfied the digital intermediary exemption is established. (2) Without limiting subsection (1)— (a) the following matters are relevant in deciding whether there are good reasons to postpone the determination of whether a digital intermediary exemption is established to a later stage of the proceedings: (i) the cost implications for the parties; (ii) the resources available to the court at the time; (iii) the extent to which technical or scientific issues are raised in the proceedings; (iv) the extent to which establishing the digital intermediary exemption is linked to other issues for determination during the trial for the proceedings; and (b) the judicial officer may determine a digital intermediary exemption is established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are sufficient to establish the exemption.

Choice of law Division 9.2.3 (3) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings, whether before or after the trial for the proceedings commences. digital intermediary exemption means an exemption from liability for defamation mentioned in section 122C or 122D.