The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

Statement of principles for determining negligence.
Modification of causation test.
No duty to warn of obvious risk.
No liability for materialisation of inherent risk.
No liability for harm suffered from obvious risks of dangerous recreational activities.
No duty of care for risk warning of dangerous recreational activity.
Standard of care for professionals.
Contributory negligence can defeat a claim.
Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
Limiting interest.
Restrictions for persons in custody.
Restrictions for mental harm.
Allocation of proportionate liability for concurrent wrongdoers.
Limiting liability of public authorities.
Restricting recovery for intoxicated persons.
Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
Apologies not to affect liability.
Limiting damages for birth of a child.
Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
Dust diseases.
Tobacco.
Motor Accidents and public transport accidents.
Workers, Victims and Sporting Injuries compensation.

Sydney, Australia

1300 00 2088

Civil procedure, Compensation to relatives, Damages, Disability Law, Insurance Law, LAW FIRM, Law reform, Legislation, Negligence, Personal Injury, Professional negligence

Civil Liability Act 2002 (NSW)

March 19, 2002 Legal Helpdesk Lawyers

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

Civil procedure, Costs, LAW FIRM

Cachia v Hanes [1994] HCA 14

April 13, 1994 Legal Helpdesk Lawyers

ON 13 APRIL 1994, the High Court of Australia delivered Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374 (13 April 1994).

Costs recoverable from an unsuccessful party do not include time spent by a successful litigant who is not a lawyer.

Costs are recoverable under the indemnity principle: for money paid and liabilities incurred for professional legal services. No such costs are incurred when a non-lawyer represents themselves.

http://www.austlii.edu.au/au/cases/cth/HCA/1994/14.html

Sydney, Australia

1300 00 2088

Civil procedure, Criminal Procedure, LAW FIRM, Practice and Procedure

Williams v Spautz [1992] HCA 34

July 27, 1992 Legal Helpdesk Lawyers

ON 27 JULY 1992, the High Court of Australia delivered Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (27 July 1992).

http://www.austlii.edu.au/au/cases/cth/HCA/1992/34.html

The case concerns the use of the court’s power to grant a stay of proceedings when the proceedings have been used for an improper purpose.

After being dismissed from the University of Newcastle, Dr Spautz threatened, instituted and maintained private prosecutions of charges of conspiracy and criminal defamation against former colleagues including Professor Williams and others (“the appellants”).

The appellants obtained a stay of proceedings order from the Supreme Court of NSW. The trial judge found that the proceedings had been brought for the improper purpose of “exerting pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case”.

The NSW Court of Appeal quashed the orders, holding that the appellants could receive a fair trial and that there was no evidence of any misconduct in the way the prosecution was conducted.

The High Court allowed an appeal, setting aside the Court of Appeal’s decision, declaring that the prosecutions were an abuse of process and ordering that the prosecutions be stayed permanently.

The decision provides:

Australian courts have the inherent jurisdiction to stay criminal and civil proceedings.
The court may grant stays in (1) proceedings in which a party may not receive a fair trial and (2) proceedings brought for an improper purpose.
Before granting a stay for improper purpose, the court is not required to satisfy itself that there will be an unfair trial if the prosecution is not stopped: at 519-520.
Proceedings may be stayed notwithstanding that the prosecution has a prima facie case: at 522.
The court must have the power to act effectively within its jurisdiction, even if it means refraining from exercising their jurisdiction as it is in the public interest to ensure public confidence that the processes are used fairly and not for oppression or injustice.

1300 00 2088

Civil procedure, Courts and Tribunals, LAW FIRM, Practice and Procedure

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55

December 13, 1990 Legal Helpdesk Lawyers

ON 13 DECEMBER 1990, the High Court of Australia delivered Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 (13 December 1990).

http://www.austlii.edu.au/au/cases/cth/HCA/1990/55.html

Sydney, Australia

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Civil procedure, Damages, LAW FIRM, Medical negligence, Negligence, Personal Injury, Practice and Procedure, Torts

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

June 11, 1985 Legal Helpdesk Lawyers

ON 11 JUNE 1985, the High Court of Australia delivered Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (11 June 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/37.html

Sydney, Australia

1300 00 2088

Civil procedure, Constitutional law, Human Rights, LAW FIRM

Coe v Commonwealth [1979] HCA 68

April 5, 1979 Legal Helpdesk Lawyers

ON THIS DAY IN 1979, the High Court of Australia delivered Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; (1979) 24 ALR 118. The appellant, Paul Coe, was unsuccessful in his appeal for leave to amend a statement of claim in proceedings seeking declarations and orders on behalf of the aboriginal community that Australia had not been validly occupied under the doctrine of terra nullius.

Gibbs J said: “The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and proper form.”

The legal questions were ultimately decided in the Mabo case in 1992.

http://www.austlii.edu.au/au/cases/cth/HCA/1979/68.html

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