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.