Part 9Miscellaneous

Part 9—Miscellaneous Division 1—Rights as between employer and employee 59—Rights as between employer and employee (1) Notwithstanding any Act or law, or the provisions express or implied of any contract or agreement, where an employee commits a tort for which his employer is vicariously liable— (a) the employee shall not be liable to indemnify the employer in respect of the vicarious liability incurred by the employer; and (b) unless the employee is otherwise entitled to indemnity in respect of his liability, the employer shall be liable to indemnify the employee in respect of liability incurred by the employee in respect of the tort. (2) Where an employer is proceeded against for the tort of his employee, and the employee is entitled pursuant to a policy of insurance or contract of indemnity to be indemnified in respect of liability that he may incur in respect of the tort, the employer shall be subrogated to the rights of the employee under that policy or contract in respect of the liability incurred by him (the employer), arising from the commission of the tort. (3) Where a person commits serious and wilful misconduct in the course of his employment and that misconduct constitutes a tort, the provisions of this section shall not apply in respect of that tort. Division 2—Remedies against certain shipowners 60—Remedy against shipowners and others for injuries (1) If it is alleged that the owners of any ship are liable to pay damages in respect of personal injuries, including fatal injuries, caused by the ship or sustained on, in, or about the ship, in any port or harbour in the State, in consequence of the wrongful act, neglect, or default of the owners of the ship, or the master or officers or crew thereof, or any other person in the employment of the owners of the ship, or of any defect in the ship or its apparel or equipment, and at any time that ship is found in any port or river in the State or in any water within three miles of the coast of the State, the Supreme Court or the local court of full jurisdiction nearest to the ship may, upon its being shown to the court by any person applying in accordance with rules of court that the owners are probably liable to pay damages in respect of such injuries and that none of the owners resides in the State, issue an order directed to any officer of the Supreme Court or of the said local court, or of the Minister of Marine, or of any authority exercising the powers vested in the said Minister named in the order, requiring such officer to detain the ship until such time as the owners, agent, master, or consignee thereof have paid such compensation, or have given security, to be approved by a Judge of the Supreme Court, or as the case may be, by a judge or magistrate of the said local court, to abide the event of any proceedings that may be instituted in respect of the injuries, and to pay all costs and damages that may be awarded thereon. (2) The officer to whom the order is directed may detain the ship in accordance with the order. (3) In any legal proceedings in relation to such injuries as aforesaid, the person giving security may be made the defendant, and shall be stated to be the owner of the ship which has caused the injuries, and the production of the order of the judge or magistrate made in relation to the security shall in the said proceedings be conclusive evidence that the defendant is the owner of the ship. (4) If the owner of a ship is a corporation, such corporation shall, for the purpose of this section, be deemed to reside in the State if it has an office in the State at which service of process can be effected. (5) If a ship after detention in pursuance of this section or after service on the master of any notice of an order for detention under this section, proceeds to sea before the ship is released by the officer detaining it, the master of the ship, and also the owner, and any person who sends the ship to sea, if that owner or person is party or privy to the offence, shall be guilty of an offence and liable on summary conviction to a penalty not exceeding four hundred dollars. (6) If the master proceeds to sea with the ship in contravention of subsection (5) of this section, and takes to sea any person authorised to detain the ship or any person assisting any person so authorised, the owner and master of the ship shall each be liable to pay all expenses of and incidental to the taking to sea of any such person, in addition to any penalty imposable under subsection (5). (7) The words person applying in this section shall include an employer who has paid compensation, or against whom a claim for compensation has been made, under the Workmen's Compensation Act 1932 or under any corresponding subsequent enactment, if he shows the court that he probably is or will become entitled to be indemnified under that Act or enactment, and in such case this section shall apply as if the employer were a person claiming damages in respect of personal injuries. (8) The jurisdiction of the Supreme Court under this section may be exercised by a single judge of that court sitting in chambers. Division 3—Damage by aircraft 61—Damage by aircraft aircraft damage means personal injury, loss of life, material loss, damage or destruction in South Australia that is not covered by the Commonwealth Act but would, assuming the aircraft had been engaged in trade and commerce among the States, have been covered by the Commonwealth Act; Commonwealth Act means the Damage by Aircraft Act 1999 (Cwth). (2) Words and expressions used in this section that are defined in the Commonwealth Act have the same respective meanings as in the Commonwealth Act. (3) Subject to the following qualifications, liability for aircraft damage is to be determined on the same principles as under the Commonwealth Act. (4) The following qualifications apply: (a) a person who uses an aircraft as a passenger or for the transportation of passengers or goods is not to be regarded as an operator of the aircraft if the person reasonably relies on the skill of another (not being an employee) to operate the aircraft; (b) if aircraft damage results from the unauthorised use of an aircraft, a person (other than the unauthorised user) who is liable for damage as owner or operator of the aircraft is entitled to be indemnified against that liability by the person (not being an employee) who used the aircraft without proper authority; (c) if aircraft damage results from an impact between an aircraft or part of an aircraft and a person or object (other than a person or object in the aircraft), liability is to be determined according to principles of negligence unless— (i) the impact occurs while the aircraft is in flight; or (ii) the impact is caused by the aircraft or part of the aircraft crashing or falling to the ground; (d) exemplary damages are not to be awarded for aircraft damage unless the defendant is shown to have caused the damage intentionally or recklessly. (5) This section does not apply to damage arising from operations of any of the following kinds carried out from an aircraft: (a) seeding; (b) the spreading of fertiliser, weedicide, pesticide or other agricultural chemicals; (c) firefighting; (d) the dispersal of pollutants; (e) any similar operations, unless the damage is caused by an impact between the aircraft or part of the aircraft and the ground or an impact between a substantial thing dropping or falling from the aircraft and the ground. 62—Exclusion of liability for trespass or nuisance Commonwealth Acts means the Air Navigation Act 1920 (Cwth) and the Civil Aviation Act 1988 (Cwth); land includes a building, structure or other property on land (whether affixed to the land or not); relevant air navigation regulations means the regulations governing air navigation under the Commonwealth Acts including those regulations as they apply to air navigation in South Australia under the Air Navigation Act 1937. (2) No action for trespass or nuisance arises by reason only of the flight of an aircraft over land, or the ordinary incidents of such a flight, if— (a) the aircraft flies at a height that is reasonable having regard to prevailing weather conditions and other relevant circumstances; and (b) the aircraft is operated in accordance with the relevant air navigation regulations. Division 4—Abolition of rule of common employment 63—Abolition of rule of common employment (1) Where any injury or damage is suffered by a servant by reason of the wrongful act, neglect or default of a fellow servant, the employer of those servants shall be liable in damages in respect of that injury or damage in the same manner and in the same cases as if those servants had not been engaged in a common employment. (2) This section applies to any injury or damage arising from a wrongful act, neglect or default committed after the enactment of this section, whether the contract of employment was made before or is made after the enactment of this section. (3) Employer in this section includes the Crown and instrumentalities of the Crown. Division 5—Actions in tort relating to spouses and domestic partners 64—Abolition of rule as to unity of spouses (1) Subject to this section, where any injury or damage is suffered by any person by reason of the wrongful act, neglect or default of his spouse, the spouse shall be liable in respect of that injury or damage in all respects as if the injured person and the person by reason of whose wrongful act neglect or default the injury or damage is suffered were not married. (2) This section shall not be construed as entitling any person to maintain an action in trespass or ejectment against his spouse in respect of a matrimonial home. (3) If proceedings are brought pursuant to this section, the court may dismiss the proceedings if it appears to the court that no substantial benefit would accrue to either party from the continuation of the proceedings. 65—Spouse or domestic partner may claim for loss or impairment of consortium (1) If a person causes injury to another by wrongful act, neglect or default, the person will (whether or not the injury results in death) be liable in damages to the spouse or domestic partner of the injured person for loss or injury suffered by the spouse or domestic partner as a result of the loss or impairment of consortium. (2) Damages for the loss or impairment of consortium suffered by the spouse or domestic partner of an injured person on account of personal injury arising from an MVA motor accident will not be awarded unless the injury scale value that applies under the regulations in relation to the injury exceeds 10. 66—Damages where injured spouse or domestic partner participated in business (1) Where spouses or domestic partners are jointly engaged in the conduct of a business, and either of them suffers an injury as a result of which his or her participation in the conduct of the business ceases or is impaired, the other spouse or domestic partner (as the case may be) shall be entitled to recover from a person whose wrongful act, neglect or default caused the injury compensation for loss that he or she has suffered or continues to suffer by reason of the fact that the participation of his or her spouse or domestic partner (as the case may be) in the conduct of the business has ceased or has been impaired. (2) In this section— business includes any professional or commercial undertaking; injury includes an injury that results in death. Division 6—Limitation on the award of damages for the costs of raising a child 67—Limitation on the award of damages for the costs of raising a child (1) In an action to which this section applies, no damages are to be awarded to cover the ordinary costs of raising a child. (2) The ordinary costs of raising a child include all costs associated with the child's care, upbringing, education and advancement in life except, in the case of a child who is mentally or physically disabled, any amount by which those costs would reasonably exceed what would be incurred if the child were not disabled. (3) This section applies to— (a) an action for negligence resulting in the unintended conception of a child; or (b) an action for negligence resulting in the failure of an attempted abortion; or (c) an action for negligence resulting in the birth of a child from a pregnancy that would have been aborted but for the negligence; or (d) an action for innocent misrepresentation resulting in— (i) the unintended conception of a child; or (ii) the birth of a child from a pregnancy that would have been aborted but for the misrepresentation; or (e) an action for damages for breach of a statutory or implied warranty of merchantable quality, or fitness for purpose, in a case where a child is conceived as a result of the failure of a contraceptive device. contraceptive device includes any medicine or substance used to prevent conception; innocent misrepresentation means any misrepresentation by words or conduct made without an intention to deceive.