Civil Liability Act 2002

The Act has broad reach but carves out significant exclusions. It primarily affects plaintiffs seeking damages for personal injury, death or property damage resulting from breach of duty (s.10, s.24, s.36), defendants (including professionals under s.22, medical practitioners under s.21, public authorities under Part 9, organisations under Part 10C), and third parties such as concurrent wrongdoers (Part 9A). Plaintiffs injured while intoxicated (Part 2) or engaged in serious criminal conduct (Part 3) face presumptions or bars. Claimants for pure mental harm (Part 8) must satisfy recognised psychiatric illness and normal fortitude tests (ss.32-35).

Organisations – particularly those exercising care, supervision or authority over children – are directly targeted by Part 10C. Section 49F defines responsibility broadly, including delegation; s.49G extends "associated individuals" to office holders, employees, volunteers, contractors, religious personnel and prescribed persons. Unincorporated organisations are subject to the novel procedural regime in Division 4, affecting management members (s.49L) and trustees of associated trusts (s.49P). Public and other authorities (defined expansively in s.37 to include the Crown, councils, statutory bodies, State-owned companies, water corporations and prescribed entities) receive tailored protections (ss.38-43).

Volunteers (s.45) performing community work for religious, charitable, sporting, environmental or political purposes through community organisations (s.44) are shielded, as are good samaritans (s.35B) and food donors (s.35F). Accommodation providers face capped liability for guest property (s.49A). Professionals, especially medical practitioners, are subject to the peer opinion defence (s.22) but must still meet informed consent standards (s.21). Employers and employees benefit from the indemnity rules in Part 10B (s.49B), preventing circular contribution claims except for serious and wilful misconduct.

The Act does not apply to intentional acts intended to cause injury or sexual misconduct (s.3B(1)), tobacco-related injuries, motor accident statutory benefits, workers compensation, criminal injuries compensation or anti-discrimination claims (s.3B(2)-(4)). It binds the Crown (s.4AA) but excludes certain non-delegable duty claims only in the sense that the Act still applies to them (s.3C).

The Act both creates and modifies duties. Section 49H(2) imposes a statutory duty of care on organisations responsible for children (s.49F) to take reasonable precautions against associated individuals perpetrating child abuse where the individual has authority, trust or intimacy. Breach is presumed once abuse and the enabling relationship are shown, shifting the onus to the organisation to prove reasonable precautions (s.49H(3)). Factors for reasonableness are listed non-exhaustively in s.49H(4), including resources, delegation, compliance with standards and the organisation's nature.

Rights to damages are curtailed. Plaintiffs have no right to recover for non-economic loss below Amount A (currently indexed under s.27), and recovery is graduated between Amount A and B. Future economic loss is discounted at 5% (s.28A) and capped (s.26). Gratuitous services damages require more than six hours per week for six months (s.28B(2)), with hourly and weekly caps tied to average weekly earnings. Loss of capacity to provide gratuitous services to dependents is similarly restricted (s.28BA). Pure mental harm claims are confined to recognised psychiatric illness (s.33), with consequential mental harm economic loss also so limited (s.35).

Defendants gain rights to rely on obvious risk presumptions (s.16), no duty to warn of obvious risks (s.17, subject to request, statutory or professional exceptions), and complete immunity for obvious risks of dangerous recreational activities (s.20). Professionals enjoy the widely accepted peer professional opinion defence (s.22(1)), subject to the irrationality override (s.22(2)). Public authorities cannot have their resource allocation challenged (s.38(b)) and benefit from a Wednesbury-style unreasonableness test for statutory duty breaches (s.40(2)).

Volunteers have a right not to be liable for good faith acts (s.47(1)), subject to knowledge of acting outside scope, contrary instructions, or impairment by alcohol/drugs (s.47(3)). Good samaritans and food donors receive analogous protections. Organisations have a right to shift liability to volunteers' insurance or to associated trusts via the proper defendant mechanism (s.49Q(g), s.49R). Concurrent wrongdoers benefit from proportionate liability (s.43B), with statutory duties on defendants to notify plaintiffs of other wrongdoers (s.43D) on pain of indemnity costs.

Plaintiffs retain the right to recover for mental or nervous shock as personal injury (s.31) and to structured settlements (s.8) or provisional damages for asbestos-related conditions (s.8B). Apology rights encourage early resolution without prejudice (ss.7, 7AA).

The Act is not primarily criminal but contains offence provisions via regulations (s.50(3)), allowing fines up to 50 penalty units plus 20 per day for continuing breaches. Enforcement of the civil regime occurs through courts, which must apply the statutory tests strictly. Failure to comply with proportionate liability duties (e.g. s.43D notice) can result in costs orders on an indemnity basis (s.43D(2)). Courts retain discretion in assessing reductions for contributory negligence below 25% where intoxication is presumed (s.5(3)), but the onus is on the plaintiff.

Breach of the child abuse duty (s.49H) attracts full damages, including for pure economic loss where psychiatric illness is established. Organisations face vicarious liability under s.49J without the common law control test limitations. Unincorporated organisations can be sued in their own name (s.49M(1)), with management members compelled to exercise functions (s.49M(4)). Trustees of associated trusts can be appointed as proper defendants (s.49P) and may apply trust assets to satisfy judgments notwithstanding trust deeds (s.49R(1)), with liability limited to trust property value (s.49R(2)).

No direct pecuniary penalties attach to failure to take reasonable precautions under s.49H, but the reverse onus and broad factors make compliance essential. Apology provisions are enforced by inadmissibility rules (s.7(2), s.7AA(1)(c)). The Act's transitional provisions (s.4) are enforced rigorously; for example, Part 5A does not apply to actions commenced before the 2013 amendments where hearing had started or damages awarded (s.4(2B)).

The Act is expressly not a code (s.3A(5)) and operates alongside the Wrongs Act 1954 (contributory negligence apportionment – s.23), Fatal Accidents Act 1934 (s.26, s.28B(4)), Motor Accidents (Liabilities and Compensation) Act 1973 (exclusion for Part III statutory benefits but application of Parts 2, 3, 5, 5A, 6 and 7 – s.3B(2)), Workers Rehabilitation and Compensation Act 1988 and Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 (s.3B(3)-(4)). Part 10C does not displace Part 9 protections but prevails (s.49D(1)).

It interacts with the Australian Consumer Law (Tasmania) for proportionate liability (s.43A(1)(b)) and the Corporations Act via displacement provisions (s.49R(5)). Common law is modified but not abolished; s.13(2) preserves exceptional cases for factual causation, s.22(5) preserves Rogers v Whitaker duty to warn, and s.49J(2) states the vicarious liability provision is additional to common law.

Mental harm provisions (Part 8) overlay the common law Tame v New South Wales and Annetts v Australian Stations principles, narrowing pure mental harm recovery. The peer opinion defence (s.22) mirrors but is not identical to Bolam/Bolitho. Road authority non-feasance (s.42) interacts with Brodie v Singleton Shire Council by requiring actual knowledge.

Child abuse provisions engage with the Justice Miscellaneous (Commission of Inquiry) Act 2024 amendments to apologies (ss.7AA, 7AB) and interact with limitation extensions under the Limitation Act 1974 (not reproduced here but referenced in extrinsic materials). Regulations under s.3B(5) and s.50 can exclude classes of liability or prescribe additional akin-to-employee circumstances (s.49I(4)).

The most significant recent changes stem from the Justice Miscellaneous (Commission of Inquiry) Act 2024, which amended s.3B(1A) to apply Parts 4 and 10C to intentional child abuse, substituted s.7(3), inserted ss.7AA and 7AB, and updated the definition of apology in s.6B. These changes were designed to facilitate organisational apologies in child abuse cases without fear of admission of liability, responding to the Commission of Inquiry into the Tasmanian Government's Responses to Child Sexual Abuse. Section 7AA(2) now prescribes best-practice apology elements (acknowledgment, information about time under care, protective steps), while s.7AA(4) ensures retrospective operation and applies even to imperfect apologies.

Part 10C itself was inserted by the Civil Liability Amendment (Child Abuse) Act 2019, commencing 1 May 2020, to implement Royal Commission into Institutional Responses to Child Sexual Abuse recommendations. It created the s.49H duty with reverse onus, extended vicarious liability (s.49J), and introduced the unincorporated organisations regime (Division 4) to overcome Hickson v Boyce type difficulties. The 2013 amendments (No. 47 of 2013) added Part 5A provisional damages for dust diseases, amended non-economic loss tariffs (s.28), inserted s.28BA for loss of gratuitous services capacity, and refined s.28C.

The Civil Liability Amendment Act 2008 (No. 39 of 2008) inserted Parts 8A (good samaritans) and 8B (food donors) to encourage emergency assistance and food rescue. Proportionate liability (Part 9A) was added in 2005 to address joint and several liability concerns in construction and professional negligence. These changes reflect evolving policy: from 2002-2003 Ipp-inspired caps and breach clarifications, through 2005-2013 focus on asbestos, mental harm and proportionate liability, to 2019-2024 institutional child abuse accountability.

Although the provided text does not contain specific case citations, the structure grounds several known controversies. The obvious risk provisions (ss.15-17, 19-20) have generated debate over whether "obvious" is assessed objectively from the plaintiff's perspective (s.15(1)) or includes low-probability risks (s.15(3)). The dangerous recreational activities immunity (s.20) has been criticised for potentially immunising grossly negligent operators of adventure tourism where risks are inherent.

The professional standard of care (s.22) raises the "irrational opinion" override, mirroring Heydon v NRMA controversies about when peer opinion is unreasonable. Mental harm limitations (ss.32-35) have been challenged for reintroducing "normal fortitude" after Tame/Annetts appeared to abolish it; s.34(4) expressly permits consideration of the plaintiff's actual vulnerability, creating tension.

Part 10C has been controversial for its reverse onus (s.49H(3)), broad "associated individual" definition (s.49G), and trust-piercing powers (s.49P-49R). Critics argue it imposes strict liability in practice and may affect charitable trust assets. The proper defendant mechanism (s.49Q) raises procedural fairness issues when management members are directed to act (s.49M(4)).

Proportionate liability (s.43B) has produced disputes over whether a claim is "apportionable" when mixed with non-apportionable causes, and the s.43D information duty has led to satellite costs litigation. The intoxication presumption (s.5) and criminal conduct bar (s.6) raise human rights concerns about access to justice for vulnerable plaintiffs. No reported Tasmanian challenges to the child abuse provisions are reproduced in the text, but extrinsic materials suggest ongoing tension with insurance availability and organisational solvency.

Most practitioners miss that s.3B(1A) carves child abuse back into Parts 4 and 10C despite the general exclusion for intentional acts, creating a deliberate policy exception that applies retrospectively for apologies (s.7AA(4)(a)-(b)). The "akin to employee" test in s.49I(2) is wider than common law vicarious liability because it focuses on aims of the organisation plus authority/trust/intimacy rather than control; the "recognisably independent business" exclusion (s.49I(3)) is narrowly construed and can be displaced by regulation.

Section 49H(3) presumption is not a true reverse onus on breach but on reasonable precautions once the relationship and abuse are proven; many organisations fail to lead evidence on the s.49H(4) factors (compliance with standards, delegation, resources) early enough. The associated trust provisions (s.49P(3)) capture discretionary trusts where the organisation has de facto control (paragraphs (a)-(g)), and s.49R(3) makes satisfaction of judgments a proper expense even if the trust deed prohibits it – a trap for trustees who refuse to consent under s.49O.

The s.26(1) earnings cap applies to Fatal Accidents Act claims as well, and the superannuation cap (s.25) is often overlooked in settlements. Apologies under s.7AA must be by a "senior representative" if reasonable (s.7AA(2)(a)), yet the protection applies even if this is not followed (s.7AA(4)(d)). Section 17(2)(c) professional exception to no duty to warn excludes medical practitioners, preserving Rogers v Whitaker but only for non-medical professionals. The s.42 road authority protection requires "actual knowledge of the facts creating the particular risk" – imputed or constructive knowledge is insufficient, a point frequently missed in pleadings.

Transitional provisions in s.4 are a minefield: Part 10C applies differently to pre- and post-commencement abuse (s.4(7)-(10)), and s.4(9) extends Division 4 to pre-commencement proceedings. Proportionate liability does not apply to personal injury (s.43A(1)(a)), yet many mixed claims are pleaded incorrectly, triggering s.43B(2) bifurcation.

Organisations must conduct child safety risk assessments addressing s.49H(4) factors: document resources allocated to screening, training and supervision of associated individuals; maintain policies on delegation (s.49F(b)); ensure compliance with National Principles for Child Safe Organisations or equivalent standards (s.49H(4)(g)); and retain records for at least the extended limitation periods. Religious and not-for-profit entities should map "associated individuals" under s.49G, including volunteers and contractors.

Public authorities should maintain detailed records of resource allocation decisions (s.38(a)-(c)) and general procedures (s.38(d)) to invoke the statutory presumptions. Risk warnings for recreational activities must be given in a manner reasonably likely to come to attention before engagement (s.39(3)) and adopted by the authority (s.39(7)); signs alone may be insufficient if contradicted by staff representations (s.39(9)).

Professionals should obtain documented informed consent satisfying both the reasonable patient and subjective patient limbs (s.21(1)(a)-(b)). Medical practitioners must record the information given even in urgent cases (s.21(2)). When multiple tortfeasors exist, defendants must give prompt written notice under s.43D identifying other concurrent wrongdoers and circumstances, or risk indemnity costs.

Volunteers and community organisations should ensure activities fall within the s.44 definition and that volunteers receive no prohibited remuneration (s.45(2)). Good samaritans must act without recklessness and not under the influence (s.35C). Food donors must verify safety at time of donation, provide handling instructions where required, and time limits (s.35F(1)).

All parties should consider structured settlements (s.8) and provisional damages (s.8B) in appropriate cases. Insurers and organisations should review trust deeds to confirm associated trust status (s.49P(3)) and ensure insurance responds to proper defendants (s.49Q(g)). Compliance programs should include apology protocols under s.7AA(2), with senior representative training. Legal sign-off on all risk warnings, contracts (s.3A(3)) and policies is essential given the Act's definitional precision and onus shifts. Regular audits against the indexed thresholds (s.27(6)) and discount rates (s.28A) are required for damages calculations.