What is your State Government legislating in response to the public
liability crisis?
The Federal, State and Territory Governments will discuss their
collective response to the public liability crisis at the next
Ministerial Meeting on September 27, 2002, in Sydney.
For details of the first negligence Review report prepared for the
Federal Government you can go to
http://assistant.treasurer.gov.au/atr/content/pressreleases/2002/091.asp
NSW
The Civil Liabilities Act (2002) has been introduced. It will
- Cap on maximum damages for non-economic loss - Capped at $350,000
(indexed).
- Exemplary and punitive damages are abolished in
all personal injury claims
- Restrictions on legal costs payable to a plaintiff lawyer in
cases where damages $100,000 or less, limited to the greater of 15% of
damages or $5,000.
- Unmeritorious Claims - Lawyers may commit 'Professional
Misconduct' and may be ordered to pay the costs of an action if they
commence action with 'no reasonable grounds for believing ...that the
claim is more likely than not to succeed'.
- Cap on maximum loss of earning capacity recoverable capped at
$2,712 per week (indexed).
- Severe restrictions on Legal advertising, including no
advertising on radio or television.
The Civil Liability Amendment (Personal Responsibilities) Bill 2002 has
been released for consultation. If enacted this Bill would:
- Exclude liability where there is an inherent or obvious risk
- Exclude liability in connection with recreational activities
where there is a risk warning
- Excludes liability in cases of self defence and activities
involving criminality
- Excludes liability for good Samaritans
- Excludes liability for Volunteers
- Allow an apology to an injured party without it being an
admission of liability
- Provide for structured settlements in cases of personal damages
Three leading insurers, Allianz Australia Insurance Ltd, NRMA
Insurance, and QBE Insurance (Australia) Ltd, are to set up a
co-insurance panel which would remove a major barrier to many NSW based
not-for-profit community groups gaining access to public liability
insurance. Because it involves the pooled resources of three
competitors, the proposal needs approval from the Australian
Competition and Consumer Commission before it can proceed.
SA
The Government has introduced three bills: the Statutes Amendment
(Structured Settlements) Bill 2002, the Recreational Services
(Limitation of Liability) Bill 2002 and the Wrongs (Liability and
Assessment of Damages) Amendment Bill 2002.
These bills will:
- Cap damages for pain and suffering in injury cases at a maximum
of $241,500 (to be adjusted by CPI in future years)
- Cap payments for total loss of earning capacity from the time of
the injury onward at $2.2 million
- Allow adults to waive their right to sue when they take part in
sport or recreational activities covered by a registered code of
practice but NOT to waive the rights of their children or children in
their care.
- Allow people to say sorry without it being taken as an admission
of liability.
- Restrict claims where the person injured was intoxicated at the
time of the incident.
- Cancel liability where a person is engaged in serious criminal
activity.
- Protect Good Samaritans from being sued when they help in a
medical emergency
- Allow the courts to award structured settlements as an
alternative to lump sum payments
- NOT apply to any injury received before they became law,
even where symptoms appear later or proceedings begin later. Thus,
someone who was injured by asbestos exposure before these measures
become lawful and takes action subsequently, will not have damages
capped.
- All three Bills have passed both Houses but are yet to be
assented. At this time we are unable to confirm that all details have
been passed or if they have been amended.
VIC
The Premier, Steve Bracks announced a second wave of insurance reforms
to help resolve problems in public liability. These include:
- A cap on general damages for personal injury awards to a maximum
of $360,000 indexed to CPI;
- A cap on loss of earnings awards of three times average weekly
earnings;
- A legal costs threshold preventing the recovery of legal costs as
a matter of course in court proceedings for claims under $30,000 and
limiting the recovery of legal costs to up to $2,500 for claims between
$30,000 and $50,000;
- A change in the rate used to calculate lump sum payments for
future economic loss and care costs (discount rate increases from three
to five per cent);
- A special Insurance Commissioner will be appointed to the
Essential Services Commission, with responsibility for collecting
insurance data to ensure transparency and fairness in the pricing of
premiums;
- Pre-litigation procedures to encourage early settlement of claims.
- Provision of waivers that will allow people to accept
responsibility for their own participation in risky activities eg horse
riding and adventure tourism;
- Protection of volunteers and 'Good Samaritans' from the risk of
being sued;
- Removing the right to claim damages where the injury was suffered
through criminal activity or while under the influence of drugs;
- Ensuring that saying "sorry" does not represent an admission of
liability.
Many community Groups in Victoria have access to the Community Groups
Insurance Scheme that can be accessed at www.communityinsurance.com.au.
QLD
The Personal Injuries Proceedings Act 2002 has been passed and the Act
will be made retrospective. There will be also be a second stage of the
Act.
- Exemplary and punitive damages have been abolished for personal
injury claims.
- Restrictions on legal costs payable to a plaintiff lawyer have
been restricted on costs for claims under $50,000.
- Cap on maximum loss of earning capacity recoverable of three
times average weekly earnings.
- Restrictions apply to a plaintiff claim for damages in respect of
care provided voluntarily by friends or relatives. Damages cannot be
awarded if care is for less than 6 hours a day for less than 6 months.
- Jury trials are abolished for liability claims
- Restrictions on legal costs recoverable against an unsuccessful
defendant apply. Nil where damages are less than $30,000. Amount
recoverable is limited where damages fall between $30,000 and $50,000.
Over $50,000 the normal "loser pays" rule applies.
- Lawyers have been restricted on how they advertise including no
advertising on radio or television. Also restricts lawyers touting for
business.
- Queensland has also announced a scheme for community groups with
a minimum policy of $480 and a requirement to belong to the scheme for
a three-year period. For more information visit
http://www.treasury.qld.gov.au/groupinsurance/index.htm or phone 1300
309 797.
TAS
The Tasmanian Treasurer, Dr David Crean has satted recently that "Many
of the public liability insurance reforms now being introduced by other
States are already in place in Tasmania."
These reforms include:
- The Tasmanian Supreme Court cannot order pre-judgement interest;
- Our discount rate is 7 per cent, the highest of any jurisdiction;
- Awards for gratuitous attendant care have already been abolished
in Tasmania;
- The standard limitation period is three years; and
- Tasmanian lawyers are not permitted to charge uplift fees; and
Dr Crean said the State Government was also examining the practicality
of capping insurance pay-outs.
"The important question is whether or not capping pay-outs will have
any effect on premiums.
The State Government's Public Liability contact line has been available
for some time now and the number to ring from anywhere in Tasmanian is
1800 003 533.
Many community Groups in Tasmania have access to the Community Groups
Insurance Scheme that can be accessed at www.communityinsurance.com.au.
WA
The West Australian Government has introduced the Civil Liability Bill
2002 with the aim of helping to reduce the cost of insurance and
its availability to the wider community, by:
- placing a cap on economic loss equal to three times the amount of
gross weekly earnings;
- allowing for structured settlements by agreement between the
parties;
- instituting a new threshold for general damages (pain and
suffering) of $12,000, so that claims for general damages need to
exceed $12,000 before payments can be made;
- thresholds and caps on awards for gratuitous home care services
claims; and
- tough restrictions on advertising by lawyers.
ACT
The ACT Government is committed to providing the Australian Capital
Region Community & Small Business Sector with the skills to obtain the most cost
Effective Public Liability and Professional Indemnity insurance
available by raising the awareness of risk management in the region.
The ACT Department of Treasury is hosting free training courses on:
Course Name:
Creating and Maintaining a Risk
Management Plan
When and where:
Please see the bottom of this page for venue addresses.
Course
No. Day Date Venue
43 Tuesday 15-06-04 Belconnen
44 Monday 12-07-04 Tuggeranong
45 Monday 09-08-04 Belconnen
46 Monday 06-09-04 Tuggeranong
47 Tuesday 05-10-04 Cooma
48 Monday 01-11-04 Queanbeyan
49 Monday 29-11-04 Belconnen
Times:
8:30 am - 4:00 pm
At the conclusion of the course you should:
* Have the beginnings of your risk management plan, including;
* A risk register,
* Risk action plans,
* Be able to identify major risks,
* Have a treatment plan for major risks,
* Know the importance of risk management for your organisation.
Course Outline:
1. Explain the requirement for Risk Management.
2. Introduction to national standards AS /NZS 4360:1999.
3. Establishing a Risk Management policy.
4. The Risk Management process.
5. The importance of monitoring and review.
6. Commence a Risk Management Plan appropriate to individual
requirements. 7. ACT Government assistance and web sites.
The only things you will need to provide are your own transport and an
enthusiasm to participate in a very rewarding day.
The course venues will be fully serviced and refreshments will be
provided.
Booking Details:
To book a place on these courses, please ring Kevin Wenman on (02) 620
70318.
Venue Addresses:
Belconnen
The Conference Room
Volunteering ACT
Canberra Labor Club Community Chambers
Chandler St (cnr Cameron Ave)
Belconnen
6251 4060
Tuggeranong
The Southern Cross Club Tuggeranong
Cnr Pitman & Holwell Sts
Tuggeranong
6293 7200
Queanbeyan
Comfort Inn Airport
57 - 73 Yass Road
Queanbeyan
6297 7877
Cooma
Snowy Monaro Business Enterprise Centre Inc
38 Bombala Street
COOMA
6452 5392
The ACT Government has also provided a free online risk plan creation
tool that downloads a finished personalised risk plan to a users
computer. This can be found at
http://www.insuranceriskadvice.act.gov.au/
NT
As part of its plan to tackle rising public liability costs in the
Territory, Chief Minister and Treasurer, Clare Martin, today detailed a
package of Government measures.
Heading the list is law reform with Government negotiating with
Trowbridge Consulting (the national public liability consultants) to
assist in developing appropriate NT laws and legal practice reform,
including:
- Tort Law Reforms - legislating to cap thresholds for general
damages and placing caps on loss of future earning capacity (caps will
not apply to medical expense).
- Discount rate for loss of earnings damages to be set at 5%.
- Prohibit claims arising from criminal activity and taking into
account recreational drug use (including alcohol) in compensation
payouts.
- Place limits on circumstances, and amount, of damages allocated
to family careers.
- Introduction of compulsory conferencing or mediation prior to the
commencement of court proceedings.
The legislative changes are expected to be introduced in the October
sittings.
A raft of other changes committed to by Government include:
- Legislation to exempt volunteers from any threat of public
liability action.
- Legislation to implement national solutions for structured
settlements.
- Limits on legal advertising.
The Chief Minister also announced that the Northern Territory would
join the Queensland Grouping Scheme to provide assistance for
not-for-profit and community groups.