(1) Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(1) A person ( the defendant ) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff ) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if—
(a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent). (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).
(1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.
(1) A person practising a profession ( a professional ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(1) In this Division, an individual associated with an organisation without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation and also includes the following—
(a) if the organisation is a religious organisation—a religious leader (such as a priest or a minister) or member of the personnel of the organisation, (b) if the organisation or part of the organisation is a designated agency within the meaning of the —an individual authorised by the designated agency (under that Act) as an authorised carer, Children’s Guardian Act 2019 (c) an individual, or an individual belonging to a class of individuals, prescribed by the regulations.
(1) This section imposes a duty of care that forms part of a cause of action in negligence. (2) An organisation that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse of the child in connection with the organisation’s responsibility for the child.
(1) In this Division— employee of an organisation includes an individual who is akin to an employee of the organisation.(2) An individual is akin to an employee of an organisation if the individual carries out activities as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation.
(1) An organisation is vicariously liable for child abuse perpetrated against a 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 that occasion to perpetrate the child abuse on the child.
(1) Child abuse proceedings may be commenced or continue against an unincorporated organisation in the name of the organisation or in a name reasonably sufficient to identify the organisation as if the organisation had legal personality.
(1) An unincorporated organisation may, with the consent of an entity, appoint the entity as a proper defendant for the organisation at any time.
(1) This section applies if—
(a) child abuse proceedings are commenced against an unincorporated organisation and no suitable proper defendant is appointed for the organisation by the end of 120 days after the unincorporated organisation (or a management member of the unincorporated organisation) is served with notice of the commencement of the proceedings, or (b) after that time, the proper defendant appointed ceases to be a suitable proper defendant.
(1) Despite any Act or other law or instrument (including any trust deed), the trustees of an associated trust of an unincorporated organisation may do one or more of the following—
(a) consent to be appointed by the organisation as a proper defendant, (b) supply any information about the trust that may be required under this Division, including identifying the financial capacity of the trust, (c) apply trust property to satisfy any liability incurred by the trustee as a proper defendant in child abuse proceedings. (2) Liability of a trustee of an associated trust incurred by the trustee as a proper defendant in child abuse proceedings is limited to the value of the trust property.
(1) The Uniform Rules Committee under the may make rules, not inconsistent with this Part, for or with respect to any matter that by this Part is required or permitted to be prescribed by rules or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to this Part. Civil Procedure Act 2005
(1) A person (the applicant ) who, because of an affected agreement, is prevented from exercising an action on a cause of action may—
(a) commence proceedings on the cause of action in a court with sufficient jurisdiction to hear the cause of action, and (b) apply to the court to set aside the affected agreement.
(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.
(1) In this section— attendant care services means any of the following—
(a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services—
(a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—
(a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury.
(1) This section applies to the determination of civil liability for damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the . Dust Diseases Tribunal Act 1989
(1) Definitions In this section— assisted care , in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)—
(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), (b) if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where—
(i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and(ii) the care includes the provision of accommodation to the dependant. dependants , in relation to a claimant, means—
(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises—
(i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note— “De facto partner” is defined in section 21C of the . Interpretation Act 1987 (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant’s household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.(2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that—
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants—
(i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note— Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants. (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may—
(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.
(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
(1) The Minister is, on or before 1 October 2002 and on or before 1 October in each succeeding year, to declare, by order published on the NSW legislation website, the amount that is to apply, as from the date specified in the order, for the purposes of section 16(2). (2) The amount declared is to be the amount applicable under section 16(2) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in New South Wales over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
(1) A court cannot order the payment of interest on damages awarded for any of the following—
(a) non-economic loss, (b) gratuitous attendant care services as defined in section 15 (other than gratuitous attendant care services to which section 15A applies), (c) loss of a claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants (as provided by section 15B).
(1) This section applies when a person ( the claimant ) is entitled to an award of damages in respect of death or injury against a person (the defendant ) and also against another person (the third party ), and the award against the defendant is an award to which this Part applies but the award against the third party is not an award to which this Part applies.
(1) The purpose of this section is to enable the court to give the parties to proceedings a reasonable opportunity to negotiate a structured settlement.
(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of—
(a) an injury to a person received while the person was an offender in custody, or (b) the death of a person resulting from or caused by an injury to the person received while the person was an offender in custody, being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable. (2) This Part does not apply to—
(a) an award of damages pursuant to an action under the , or Compensation to Relatives Act 1897 (b) an award of damages for mental harm (within the meaning of Part 3) to a person who was not an offender in custody at the time of the incident that resulted in the mental harm.
(1) A person (referred to in this Division as a claimant ) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this Part applies must give the protected defendant notice of the incident that gives rise to the claim within 6 months after the relevant date for the claim.
(1) A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information—
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and (b) to be able to make an early assessment of liability, and (c) to be able to make an informed offer of settlement.
(1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the (the Workplace Injury Management and Workers Compensation Act 1998 1998 WC Act ).(2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if—
(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and (b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and (c) a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and (d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and (e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and (f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations. (2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part. Note— The Minister may amend or repeal an order made under this subsection. See section 43 of the . Interpretation Act 1987 (2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time.
(1) A protected defendant who is liable to pay damages to an offender pursuant to an award to which this Part applies is entitled to deduct from those damages the amount of any victim support payment required to be paid by the offender. (2) A victim support payment is an amount ordered to be paid by the offender by an order for restitution under Division 2 of Part 5 of the. Victims Rights and Support Act 2013 (3) In the case of an amount ordered to be paid by the offender pursuant to a provisional order for restitution under Division 2 of Part 5 of the , the protected defendant may (while the provisional order is pending) withhold that amount from the damages payable to the offender. Victims Rights and Support Act 2013
(1) The protected defendant liable to pay offender damages awarded to an offender is to pay those damages to the NSW Trustee and Guardian to be held in trust for the offender and paid out only as authorised by this Division. (2) Offender damages held in trust for an offender under this Division comprise a victim trust fund for victims of the offender. The protected defendant liable to pay those damages isresponsible for the fund.
(1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is eligible to be satisfied from the victim trust fund as provided by this section.
(1) The protected defendant responsible for a victim trust fund must send to each person who appears (from any information reasonably available to the protected defendant) to have a victim claim against the offender a notice in writing—
(a) naming the offender and stating that there is a victim trust fund for victims of the offender, and (b) specifying the eligibility period for that victim trust fund, and (c) stating that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund. (1A) The notice must be sent as far as practicable within 28 days after the award date for the damages concerned (but this subsection does not prevent the notice from being sent more than 28 days after the award).
(1) A protected defendant must, in response to a request made during or within 1 month after the eligibility period for a victim trust fund by or on behalf of a person who appears to the protected defendant to be entitled to make a victim claim against the offender, provide such information as the protected defendant is reasonably able to provide concerning—
(a) the award of damages to the offender and the amount of the victim trust fund, and (b) any other victim claim against the offender that may be eligible to be satisfied from the victim trust fund and of which the protected defendant has been given notice under this Division.
(1) A court that awards damages to a person on a victim claim against an offender may, if satisfied that the claim is eligible to be satisfied from a victim trust fund for victims of the offender, order that the whole or a specified part of those damages is to be paid out of money held in the victim trust fund. (2) Before the court orders the payment of damages out of money held in the victim trust fund, the court must consider—
(a) whether there are or are likely to be other victim claims eligible to be satisfied from the victim trust fund that may be ordered to be wholly or partly satisfied by payment from the victim trust fund, and (b) the amount of the damages likely to be awarded in respect of those claims.
(1) When the protected defendant responsible for a victim trust fund is satisfied that all claims eligible to be satisfied from the fund have been finally determined, the protected defendant is to make a determination of the surplus (if any) in the fund.
(1)
(1) This Division does not require any amount to be held in trust that is payable by the protected defendant as legal costs under an order for costs made against the protected defendant or (in the case of an award of damages that is inclusive of costs) that is reasonably attributable to the offender’s legal costs.
(1) The maximum costs for legal services provided to the plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund are fixed as follows—
(a) if the amount recovered on the claim does not exceed $100,000—maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater, (b) if the amount recovered on the claim exceeds $100,000 but does not exceed $250,000—maximum costs are fixed at 18% of the amount recovered or $20,000, whichever is greater, (c) if the amount recovered on the claim exceeds $250,000 but does not exceed $500,000—maximum costs are fixed at 16% of the amount recovered or $45,000, whichever is greater, (d) if the amount recovered on the claim exceeds $500,000—maximum costs are fixed at 15% of the amount recovered or $80,000, whichever is greater.
(1) This section applies to the liability of a person ( the defendant ) for pure mental harm to a person (the plaintiff ) arising wholly or partly from mental or nervous shock in connection with another person (the victim ) being killed, injured or put in peril by the act or omission of the defendant.
(1) A person ( the defendant ) does not owe a duty of care to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(1) This Part applies to the following claims ( apportionable claims )—
(a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) a claim for economic loss or damage to property in an action for damages under the for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Act 1987 ) or under the Fair Trading Amendment (Australian Consumer Law) Act 2010 for a contravention of section 18 of that Law. Australian Consumer Law (NSW) (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).
(1) In any proceedings involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount.
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.
(1) This section applies when 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 reasonable care and skill was impaired.
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that—
(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(1) This section applies to a liability to which this Part applies in circumstances where—
(a) the liability arises out of the death of, or injury or damage to, a person, and (b) that death, injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not had a mental health impairment or a cognitive impairment at the time of the conduct, and (c) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(1) This Division applies to an award of damages to which this Part applies if—
(a) the award is made in respect of a civil liability that arises out of injury or damage to the person, and (b) the injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not had a mental health impairment or a cognitive impairment at the time of the conduct, and (c) the conduct contributed materially to the injury or damage or to the risk of injury or damage.
(1) A court that makes an award of damages must make an order directing the NSW Trustee and Guardian to take control of the amount of damages if it is satisfied, on the balance of probabilities, that the amount of damages is an amount to which this Division applies and that it is in the best interests of the person to whom the damages were awarded to make the order. (2) The NSW Trustee and Guardian must ensure that an amount of damages subject to a damages supervision order is used to cover the costs of past, present and future medical or other therapeutic treatment, rehabilitation costs and care costs of the person awarded the damages, subject to the terms of the order.
(1) This Part applies to civil liability of any kind.
(cf former s 2(2), (3) and (5) of ) Damage by Aircraft Act 1952
(Section 7)