Arguably one of the most important reforms in civil compensation in New South Wales, the commencement of the Civil Liability Act 2002 (NSW) (the CLA) retrospectively on 20 March 2002 (s 2) dramatically changed the landscape of the law of negligence.
In recognition of the 20th anniversary of the commencement of the CLA, we have drawn together some of the most significant changes that occurred as part of the tort law reform, as well as collated a list of the more prominent cases over the last 20 years in which the courts have discussed, interpreted and applied various provisions of the CLA.
Snap-shot of liability principles under the Civil Liability Act 2002 (NSW)
Having proved that he or she has suffered an injury of a type sounding in damages, a plaintiff will establish liability in negligence with proof of three elements: that the defendant owed the plaintiff a duty of care; that the defendant was in breach of that duty; and that that breach of duty caused or materially contributed to the plaintiff’s injury. If a duty of care is found to have been owed to the plaintiff, that duty requires the defendant to take reasonable care (standard of care) with a view to avoiding or somehow reducing the foreseeable injury.
The CLA contains a broad range of provisions that re-express and regulate the common law liability principles of negligence: see ss 5B, 5C, 5D and 5E.
There is now a fairly complex interaction of common law negligence principles and statutory provisions.
In general terms, the CLA does not alter the common law principles which determine the existence of a duty of care. Rather, at a general level the CLA instead alters the principles governing breach of duty and causation.
Whether or not a duty of care exists in any particular case is a question which depends almost entirely on the common law, except in very specific circumstances such as in relation to public authorities, mental harm, recreational activities, professional negligence, intoxication, and criminal enterprise. However, where the issue is whether that duty was breached, or whether that breach led to damage or injury, then the CLA must be the first port of call.
¶7-460 Roadmap - Commemorating 20 years of the Civil Liability Act 2002 (NSW)
¶7-463 Roadmap - liability principles under the Civil Liability Act 2002 (NSW)
Assessing damages under the Civil Liability Act 2002 (NSW)
The CLA places restrictions upon aspects of the recovery of damages for personal injury, forever altering the common law approach to assessing damages.
The major areas in which Part 2 of the CLA altered common law principles are loss of earnings (ss 12 and 13), the discount rate applied in determining the present value of future economic loss (s 14), non-economic loss (s 16), and gratuitous assistance (ss 15, 15A, 15B).
As to the discount rate, the 3% discount rate fixed by the High Court in Todorovic v Waller (1981) 150 CLR 402 no longer applies as the CLA prescribes a discount rate of 5%: s 14.
Other restrictions include:
- No exemplary or punitive damages may be awarded in an action for personal injury caused by negligence: s 21.
- Interest is excluded from damages for non-economic loss: s 18.
- A plaintiff cannot claim for damages in a medical negligence case for loss of a chance of a better outcome. See Tabet v Gett (2010) Aust Torts Reports ¶82-057;  HCA 12.
Part 2A contains provisions for offenders in custody in relation to negligence claims of inmates against protected defendants, defined in s 26A to include the Crown, a Government department and members of staff, a public health organisation and members of staff, and any person having public official functions or acting in a public official capacity
Another important restriction that the CLA introduced is in relation to damages awarded for the birth of a child. Part 11, ss 70 and 71 applies to any claim for damages in civil proceedings for the birth of a child. It does not apply to any claim for damages by a child in civil proceedings for personal injury sustained by the child pre-natally or during birth.
¶7-487 Roadmap - Assessing damages under the Civil Liability Act 2002 (NSW)
¶29-050 CCH Personal Injury — Comparative Verdicts Finder (key practical tool).
Defining cases of the last 20 years
In recognition of the 20th anniversary of the commencement of the CLA, we have curated a list of some of the more prominent New South Wales cases over the last 20 years in which the courts have discussed and interpreted various provisions of the CLA.
It is not an exhaustive list of all cases, but rather a list of curated cases that highlight the application of the CLA, its interaction with common law, and interpretation of key provisions within the CLA.
Also included in the curated list are cases involving institutional liability for historic child sexual abuse, as well as permanent stay applications under s 6A of the Limitation Act 1969 (NSW). Whilst not all of these cases involve the CLA (by reason of s 3B(1)(a)), it is nonetheless important to highlight such cases as part of an emerging area within civil compensation law.
Curated cases are grouped as follows:
¶7-496.1 Illegal enterprise; curated list of prominent cases.
¶7-496.2 Institutional liability and abuse law; curated list of prominent cases.
¶7-496.3 Medical negligence; curated list of prominent cases.
¶7-496.4 Mental harm; curated list of prominent cases.
¶7-496.5 Motor accidents; curated list of prominent cases.
¶7-496.6 Occupiers liability; curated list of prominent cases.
¶7-496.7 Public authorities; curated list of prominent cases.
¶7-496.8 Recreational activities, obvious risk; curated list of prominent cases.
¶7-496.9 School authorities; curated list of prominent cases.
¶7-496.10 Workers compensation; curated list of prominent cases.