Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Civil Liability Act 2002 .
This Act commences on a day to be proclaimed.
[Section 3 Substituted by No. 41 of 2003, s. 4, Applied:04 Jul 2003] In this Act, unless the contrary intention appears [Section 3 Amended by No. 69 of 2005, s. 4, Applied:15 Dec 2005] adult average weekly earnings means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading "AVERAGE WEEKLY EARNINGS, Australia: Original" in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time;
court includes tribunal and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined;
damages includes any form of monetary compensation;
duty means (a) a duty of care in tort; or
(b) a duty of care under contract that is co-extensive with a duty of care in tort; or
(c) another duty under statute or otherwise that is co-extensive with a duty of care referred to in paragraph (a) or (b) ;
(b) future general expenses;
(c) future medical expenses;
(d) future gratuitous services;
[Section 3 Amended by No. 69 of 2005, s. 4, Applied:15 Dec 2005] gratuitous services means services of a domestic nature or services relating to nursing or attendance provided to a person for which that person does not pay or is not liable to pay;
non-economic loss means any one or more of the following: (a) pain or suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
(d) curtailment of life expectancy;
(e) bodily or mental harm;
personal injury includes (a) pre-natal injury; and
(b) impairment of a person's physical or mental condition; and
3A. Provisions relating to operation of Act
[Section 3A Inserted by No. 41 of 2003, s. 4, Applied:04 Jul 2003] (1) This Act does not create or confer any cause of civil action for the recovery of damages.
(2) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.
(3) This Act, other than Part 7 , does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract in relation to any matter to which this Act applies and does not limit or otherwise affect the operation of such an express provision.
(4) Subsection (3) extends to any provision of this Act even if the provision applies to liability in contract.
(5) This Act is not a codification of the law relating to civil claims for damages for harm.
3B. Civil liability excluded from Act
[Section 3B Inserted by No. 41 of 2003, s. 4, Applied:04 Jul 2003] (1) This Act does not apply to or in respect of civil liability (a) in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct; or
(b) relating to an award of damages for personal injury or death where the injury or death concerned resulted from smoking or other use of tobacco products.
(5) The regulations may exclude a specified class or classes of civil liability from the operation of all or any provisions of this Act.
(6) Regulations referred to in subsection (5) may make transitional provision with respect to claims relating to acts or omissions which occurred before the commencement of the regulations.
3C. Application of Act to non-delegable duty
4. Application of Act
(1) Parts 2 , 3 and 4 do not apply to a cause of action accrued before the commencement of this Act.
(2) [Section 4 Subsection (2) amended by No. 8 of 2004, s. 4, Applied:04 Jul 2003] Part 5 and section 12 apply to a cause of action accrued whether before or after the commencement of this Act.
(2A) [Section 4 Subsection (2A) inserted by No. 47 of 2013, s. 5, Applied:01 Mar 2014] Part 5A applies to a cause of action accrued, and an action commenced, whether before or after the commencement of section 7 of the Civil Liability Amendment Act 2013.
(2B) [Section 4 Subsection (2B) inserted by No. 47 of 2013, s. 5, Applied:01 Mar 2014] However, Part 5A does not apply to an action commenced before the commencement of section 7 of the Civil Liability Amendment Act 2013 if (a) the hearing of the action had commenced before that commencement; or
(b) damages had been awarded in that action before that commencement; or
(c) a settlement had been reached in that action before that commencement, other than a settlement that only relates to damages that, if they had been awarded by a court, would be provisional damages within the meaning of section 8B(1) .
(3B) [Section 4 Subsection (3B) inserted by No. 47 of 2013, s. 5, Applied:01 Mar 2014] Section 28BA does not apply to a cause of action accrued before the commencement of section 9 of the Civil Liability Amendment Act 2013.
(3C) [Section 4 Subsection (3C) inserted by No. 47 of 2013, s. 5, Applied:01 Mar 2014] The amendment to section 28C effected by section 10 of the Civil Liability Amendment Act 2013 does not apply to a cause of action accrued before the commencement of section 10 of that Act.
(9) [Section 4 Subsection (9) inserted by No. 48 of 2019, s. 5, Applied:01 May 2020] Division 4 of Part 10C extends to child abuse proceedings in respect of child abuse perpetrated before the commencement of that Division.
child abuse proceedings has the same meaning as in section 49L .
4AA. Act binds Crown
[Section 4AA Inserted by No. 47 of 2013, s. 6, Applied:01 Mar 2014] This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Intoxication
4A. Application of Part 2
[Section 4A Inserted by No. 41 of 2003, s. 5, Applied:04 Jul 2003] This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B .
5. Presumption of contributory negligence where person intoxicated
(1) If it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was, at the time of the act or omission that caused the death, injury or damage, intoxicated to the extent that the person's capacity to exercise due care and skill was impaired, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage.
(2) If there is a presumption of contributory negligence, the court is to assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater or lesser percentage determined by the court to be appropriate in the circumstances of the case.
(3) The onus of satisfying the court that damages ought to be reduced on account of contributory negligence by a percentage of less than 25% is on the person whose death, injury or damage is the subject of the proceedings for the recovery of damages.
(4) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.
(5) Subject to subsection (6) , a reference in this section to a person being "intoxicated" is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).
(6) A person who has taken a drug for a medicinal purpose is not to be taken to be intoxicated for the purposes of this section if the person satisfies the court that he or she was not aware of the effect of the drug taken.
PART 3 - Recovery by criminals
5A. Application of Part 3
[Section 5A Inserted by No. 41 of 2003, s. 6, Applied:04 Jul 2003] This Part applies to civil liability of any kind for damages for personal injury or death or damage to property, except civil liability that is excluded from the operation of this Part by section 3B .
6. Criminals not to be awarded damages
(1) A court is not to award damages if the court is satisfied that (a) the person whose death, injury or damage is the subject of the proceedings was, at the time of the incident that resulted in the death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence; and
(b) the conduct contributed materially to the risk of the death, injury or damage that was suffered.
(2) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence relating to the conduct.
(3) In this section, serious offence means an offence punishable by imprisonment for a term greater than 6 months.
PART 4 - Apologies
6A. Application of Part 4
[Section 6A Inserted by No. 41 of 2003, s. 7, Applied:04 Jul 2003] This Part applies to civil liability of any kind, except civil liability that is excluded from the operation of this Part by section 3B .
7. Effect of apology on liability
(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.
(3) In this section, apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.
PART 5 - Structured Settlements
7A. Application of Part 5
[Section 7A Inserted by No. 41 of 2003, s. 8, Applied:04 Jul 2003] This Part applies to civil liability of any kind for damages for personal injury or death, except civil liability that is excluded from the operation of this Part by section 3B .
8. Court may make consent order for structured settlement
(1) A court may, on the application of the parties to a claim for damages for personal injury or death of a person, make an order approving of, or in the terms of, a structured settlement even though the payment of damages is not in the form of a lump sum award of damages.
(2) For the purposes of this section, a structured settlement is an agreement that provides for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means.
PART 5A - Provisional Damages
8A. Application of Part 5A
[Section 8A Inserted by No. 47 of 2013, s. 7, Applied:01 Mar 2014] This Part applies to civil liability of any kind for damages for personal injury or death, except civil liability that is excluded from the operation of this Part by section 3B .
8B. Provisional damages for asbestos-related conditions
[Section 8B Inserted by No. 47 of 2013, s. 7, Applied:01 Mar 2014] (1) If it is proved or admitted in an action for damages in respect of a dust-related disease ( the first disease ) of a person that the person may, at some definite or indefinite time in the future, develop another dust-related disease wholly or partly as a result of the act or omission giving rise to the cause of action, the court may (a) award, in the first instance, damages ( provisional damages ) for the first disease, assessed on the assumption that the person will not develop another dust-related disease; and
(b) award damages at a future date if the person does develop another dust-related disease.
(2) In this section dust-related disease means (a) any of the following diseases: (i) aluminosis;