QueenslandCivilLiabilityAct2003Current as at [Not applicable]Indicative reprint noteThis is anunofficialversion of a
reprint of this Act that incorporates all proposedamendmentstotheActincludedintheCivilLiabilityandOtherLegislationAmendment Bill
2018. This indicative reprint has been prepared for
informationonly—it is not an authorised reprint of the
Act.Amendments to this Act are also
included in the Civil Liability (Institutional ChildAbuse)
Amendment Bill 2018*. These proposed amendments are not included
inthis indicative reprint.The point-in-time
date for this indicative reprint is the introduction date
forthe Civil Liability and Other Legislation
Amendment Bill 2018—15 November 2018.Detailed
information about indicative reprints is available on theInformationpageof the
Queensland legislation website.
Civil
Liability Act 2003Civil Liability Act 2003Chapter 1
Preliminary[s 1]An Act to reform
the law of civil liability for negligent acts, andfor
other purposesNotauthorised—indicativeonlyChapter 1PreliminaryPart 1Introduction1Short
titleThis Act may be cited as theCivil Liability Act 2003.2Commencement(1)Subject to subsections (2) and (3), this Act
is taken to havecommenced on 2 December 2002.(2)The following provisions commence on
assent—•chapter 2, part 1, division 7, part 3,
division 2 and part 4•chapter 3, parts
2 and 4•sections 53, 54 and 56 to 60•chapter 4, parts 1 and 2•chapter 5•chapter 6 and schedule 1.(3)Chapter2,part2commencesonadaytobefixedbyproclamation.Current as at
[Not applicable]Page 7
Civil
Liability Act 2003Chapter 1 Preliminary[s 3]3Notes in textA note in the
text of this Act is part of this Act.Notauthorised—indicativeonlyPart
2Application of Act4Application of Act(1)Subjecttosection 5,thisActappliestoanycivilclaimfordamages for harm.(2)The
following provisions apply only in relation to a breach ofduty
happening on or after 2 December 2002—•chapter 2, part 1, divisions 1 to 6•chapter 2, part 3, division 1•section 55.(3)Chapter 2, part 2 applies only in relation
to a breach of dutyhappening on or after the commencement of
this subsection.(4)The following provisions apply in
relation to a breach of dutyhappening on or
after the day this Act receives assent—•chapter 2, part 4•sections 52, 54, 56, 57, 58, 59, 60,
72.(5)Chapter 2, part 5 applies only in
relation to a breach of dutyhappening on or
after the commencement of this subsection.(6)Sections 64, 65, 66, 67 and 73 apply in
relation to personalinjuries damages regardless of when
the injury happened.5Civil liability excluded from
Act(1)ThisActdoesnotapplyinrelationtodecidingliabilityorawards of damages for personal injury
if the harm resultingfrom the breach of duty is or
includes—Page 8Current as at
[Not applicable]
Civil
Liability Act 2003Chapter 1 Preliminary[s 5]Notauthorised—indicativeonly(a)an injury for which compensation is
payable under theWorkCover Queensland Act 1996,
other than an injuryto which section 36(1)(c) or 37 of
that Act applies; orExample for paragraph (a)—A
worker employed under a contract of service with a labourhire
company is injured at the premises of a host employer whiledrivingadefectivemachine.Theworkerpursuesclaimsfordamages for civil liability against the
labour hire company, thehost employer and the manufacturer of
the machine. The workersuffers a number of injuries but only
1 of them is accepted as aninjury under
theWorkCover Queensland Act 1996,
section 34.This Act does not apply to any of the claims
for damages.(b)an injury for which compensation is
payable under theWorkers’CompensationandRehabilitationAct2003,other than an injury to which section
34(1)(c) or 35 ofthat Act applies; or(c)an
injury that is a dust-related condition; or(d)an
injury resulting from smoking or other use of tobaccoproducts or exposure to tobacco
smoke.(2)For subsection (1)(a) or (b), the
following is immaterial—(a)whether
compensation for the injury is actually claimedunder the
relevant Workers’ Compensation Act;(b)whether the entitlement to seek damages for
the injury isregulated under that Act.(3)Despite subsection (1)(c) and (d),
this Act applies for decidingawardsofsection 59Adamagesrelatingtoaninjurymentioned in
subsection (1)(c) or (d).(4)Toremoveanydoubt,itisdeclaredthatabreachofdutymentioned in
subsection (1) includes a breach of duty givingrise to a
dependency claim.(5)In this section—compensationforinjury,underarelevantWorkers’Compensation Act, includes payment
of—(a)reasonableexpensesformedicaltreatmentorattendance; andCurrent as at
[Not applicable]Page 9
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 1 Preliminary[s 6](b)funeral expenses.relevant
Workers’ Compensation Actmeans—(a)forcompensation,oranentitlementtoseekdamages,foraninjurymentionedinsubsection (1)(a)—theWorkCover
Queensland Act 1996; or(b)forcompensation,oranentitlementtoseekdamages,foraninjurymentionedinsubsection (1)(b)—theWorkers’
Compensation and Rehabilitation Act 2003.6Act binds all personsThisActbindsallpersonsincludingtheStateand,totheextentthelegislativepoweroftheParliamentpermits,theCommonwealth and the other
States.7Provisions relating to operation of
Act(1)Subject to sections 5(3) and 59A, this
Act does not create orconfer any cause of civil action for
the recovery of damages.(2)AprovisionofthisActthatgivesprotectionfromcivilliability does
not limit the protection from liability given byanother provision of this Act or by another
Act or law.Note—See, for
example, the following provisions giving protection from
civilliability to particular persons—•theForestry Act
1959, sections 96E, 96F and 96G•theMarine Parks Act
2004, section 147•theNature Conservation Act 1992,
section 142•theRecreation Areas
Management Act 2006, section 228.(3)This
Act, other than chapter 2, part 2 and chapter 3, does notpreventthepartiestoacontractfrommakingexpressprovision for their rights, obligations and
liabilities under thecontract (theexpress
provision) in relation to any matter towhich this Act applies and does not limit or
otherwise affectthe operation of the express
provision.Page 10Current as at
[Not applicable]
Civil
Liability Act 2003Chapter 2 Civil liability for harm[s
8](4)Subsection (3) extends to any
provision of this Act even if theprovision
applies to liability in contract.(5)This
Act is not a codification of the law relating to civil
claimsfor damages for harm.Notauthorised—indicativeonlyPart
3Interpretation8DefinitionsThe dictionary
in schedule 2 defines particular words used inthis Act.Chapter 2Civil liability
for harmPart 1Breach of
dutyDivision 1General standard
of care9General principles(1)A
person does not breach a duty to take precautions against arisk
of harm unless—(a)the risk was foreseeable (that is, it
is a risk of which theperson knew or ought reasonably to
have known); and(b)the risk was not insignificant;
and(c)in the circumstances, a reasonable
person in the positionof the person would have taken the
precautions.Current as at [Not applicable]Page
11
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
10](2)Indecidingwhetherareasonablepersonwouldhavetakenprecautions
against a risk of harm, the court is to consider thefollowing (among other relevant
things)—(a)the probability that the harm would
occur if care werenot taken;(b)the
likely seriousness of the harm;(c)theburdenoftakingprecautionstoavoidtheriskofharm;(d)the
social utility of the activity that creates the risk ofharm.10Other
principlesInaproceedingrelatingtoliabilityforbreachofdutyhappening on or
after 2 December 2002—(a)the burden of
taking precautions to avoid a risk of harmincludestheburdenoftakingprecautionstoavoidsimilarrisksofharmforwhichthepersonmayberesponsible; and(b)the
fact that a risk of harm could have been avoided bydoingsomethinginadifferentwaydoesnotofitselfgive rise to or
affect liability for the way in which thething was done;
and(c)thesubsequenttakingofactionthatwould(hadtheaction been taken earlier) have
avoided a risk of harmdoes not of itself give rise to or
affect liability in relationto the risk and
does not of itself constitute an admissionof liability in
connection with the risk.Division 2Causation11General principles(1)Adecisionthatabreachofdutycausedparticularharmcomprises the following elements—Page
12Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
12](a)thebreachofdutywasanecessaryconditionoftheoccurrence of
the harm (factual causation);(b)itisappropriateforthescopeoftheliabilityoftheperson in breach to extend to the harm
so caused (scopeof
liability).(2)Indecidinginanexceptionalcase,inaccordancewithestablishedprinciples,whetherabreachofduty—beingabreachofdutythatisestablishedbutwhichcannotbeestablishedassatisfyingsubsection
(1)(a)—shouldbeacceptedassatisfyingsubsection
(1)(a),thecourtistoconsider(amongotherrelevantthings)whetherornotandwhyresponsibilityfortheharmshouldbeimposedontheparty in breach.(3)If
it is relevant to deciding factual causation to decide what
theperson who suffered harm would have done if
the person whowas in breach of the duty had not been so in
breach—(a)the matter is to be decided
subjectively in the light of allrelevant
circumstances, subject to paragraph (b); and(b)anystatementmadebythepersonaftersufferingtheharmaboutwhatheorshewouldhavedoneisinadmissibleexcepttotheextent(ifany)thatthestatement is against his or her
interest.(4)For the purpose of deciding the scope
of liability, the court isto consider (among other relevant
things) whether or not andwhyresponsibilityfortheharmshouldbeimposedontheparty who was in breach of the
duty.12Onus of proofIn deciding
liability for breach of a duty, the plaintiff alwaysbears the onus of proving, on the balance of
probabilities, anyfact relevant to the issue of
causation.Current as at [Not applicable]Page
13
Civil
Liability Act 2003Chapter 2 Civil liability for harm[s
13]Division 3Assumption of
riskNotauthorised—indicativeonly13Meaning ofobvious
risk(1)For this division, anobvious riskto a person who
suffers harmis a risk that, in the circumstances, would
have been obviousto a reasonable person in the position of
that person.(2)Obviousrisksincluderisksthatarepatentoramatterofcommon knowledge.(3)Ariskofsomethingoccurringcanbeanobviousriskeventhough it has a
low probability of occurring.(4)A
risk can be an obvious risk even if the risk (or a condition
orcircumstancethatgivesrisetotherisk)isnotprominent,conspicuous or
physically observable.(5)To remove any
doubt, it is declared that a risk from a thing,including a
living thing, is not an obvious risk if the risk iscreated because of a failure on the part of
a person to properlyoperate, maintain, replace, prepare or
care for the thing, unlessthe failure itself is an obvious
risk.Examples for subsection (5)—1Amotorisedgo-cartthatappearstobeingoodconditionmaycreate a risk to a user of the go-cart that
is not an obvious risk if itsframe has been
damaged or cracked in a way that is not obvious.2A bungee cord that appears to be in
good condition may create arisk to a user
of the bungee cord that is not an obvious risk if it isusedafterthetimethemanufacturerofthebungeecordrecommends its replacement or it is used in
circumstances contraryto the manufacturer’s
recommendation.14Persons suffering harm presumed to be
aware of obviousrisks(1)If,
in an action for damages for breach of duty causing harm, adefenceofvoluntaryassumptionofriskisraisedbythedefendant and the risk is an obvious
risk, the plaintiff is takento have been
aware of the risk unless the plaintiff proves, onthe
balance of probabilities, that he or she was not aware ofthe
risk.Page 14Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
15]Editor’s note—‘Voluntary
assumption of risk’ is sometimes stated as ‘volenti non fitinjuria’.(2)For
this section, a person is aware of a risk if the person isawareofthetypeorkindofrisk,evenifthepersonisnotaware of the
precise nature, extent or manner of occurrence ofthe
risk.15No proactive duty to warn of obvious
risk(1)A person (defendant)
does not owe a duty to another person(plaintiff) to warn of an
obvious risk to the plaintiff.(2)Subsection (1) does not apply if—(a)the plaintiff has requested advice or
information aboutthe risk from the defendant; or(b)the defendant is required by a written
law to warn theplaintiff of the risk; or(c)the defendant is a professional, other
than a doctor, andthe risk is a risk of the death of or
personal injury to theplaintiff from the provision of a
professional service bythe defendant.Note—In
relation to paragraphs (a) and (b), see section 21 for the duty of
adoctor to warn of risk.(3)Subsection (2) does not give rise to a
presumption of a duty towarnofariskinthecircumstancesreferredtointhatsubsection.(4)In
this section—a professionalhas the same
meaning as it has in division 5.16No
liability for materialisation of inherent risk(1)Apersonisnotliableinnegligenceforharmsufferedbyanother person as a result of the
materialisation of an inherentrisk.Current as at [Not applicable]Page
15
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
17](2)An inherent risk is a risk of
something occurring that can notbe avoided by
the exercise of reasonable care and skill.(3)Thissectiondoesnotoperatetoexcludeliabilityinconnection with a duty to warn of a
risk.Division 4Dangerous
recreational activities17Application of
div 4(1)This division applies only in relation
to liability in negligencefor harm to a person resulting from a
dangerous recreationalactivity engaged in by the
plaintiff.(2)Thisdivisiondoesnotlimittheoperationofdivision3inrelation to a recreational
activity.18Definitions for div 4In
this division—dangerous recreational activitymeans an activity engaged infor
enjoyment, relaxation or leisure that involves a significantdegree of risk of physical harm to a
person.obvious riskhas the same
meaning as it has in division 3.19No
liability for personal injury suffered from obviousrisks
of dangerous recreational activities(1)Apersonisnotliableinnegligenceforharmsufferedbyanother person as a result of the
materialisation of an obviousriskofadangerousrecreationalactivityengagedinbytheperson suffering
harm.(2)This section applies whether or not
the person suffering harmwas aware of the risk.Page
16Current as at [Not applicable]
Division 5Civil Liability
Act 2003Chapter 2 Civil liability for harm[s
20]Duty of professionalsNotauthorised—indicativeonly20Definition for div 5In
this division—a professionalmeans a person
practising a profession.21Proactive and
reactive duty of doctor to warn of risk(1)A
doctor does not breach a duty owed to a patient to warn ofrisk, before the patient undergoes any
medical treatment (or atthe time of being given medical
advice) that will involve a riskof personal
injury to the patient, unless the doctor at that timefails to give or arrange to be given to the
patient the followinginformation about the risk—(a)informationthatareasonablepersoninthepatient’sposition would, in the circumstances,
require to enablethepersontomakeareasonablyinformeddecisionaboutwhethertoundergothetreatmentorfollowtheadvice;(b)information that the doctor knows or ought
reasonablyto know the patient wants to be given before
making thedecisionaboutwhethertoundergothetreatmentorfollow the advice.(2)In
this section—patient,whenusedinacontextofgivingorbeinggiveninformation, includes a person who has the
responsibility formakingadecisionaboutthemedicaltreatmenttobeundergone by a
patient if the patient is under a legal disability.Example—the
responsibility a parent has for an infant child22Standard of care for professionals(1)Aprofessionaldoesnotbreachadutyarisingfromtheprovision of a professional service if it is
established that theCurrent as at [Not applicable]Page
17
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
23]professional acted in a way that (at the
time the service wasprovided) was widely accepted by peer
professional opinionby a significant number of respected
practitioners in the fieldas competent professional
practice.(2)However, peer professional opinion can
not be relied on forthepurposesofthissectionifthecourtconsidersthattheopinion is irrational or contrary to a
written law.(3)Thefactthattherearedifferingpeerprofessionalopinionswidelyacceptedbyasignificantnumberofrespectedpractitioners in
the field concerning a matter does not preventany 1 or more
(or all) of the opinions being relied on for thepurposes of this section.(4)Peerprofessionalopiniondoesnothavetobeuniversallyaccepted to be
considered widely accepted.(5)This
section does not apply to liability arising in connectionwith
the giving of (or the failure to give) a warning, advice orother information, in relation to the risk
of harm to a person,thatisassociatedwiththeprovisionbyaprofessionalofaprofessional service.Division 6Contributory
negligence23Standard of care in relation to
contributory negligence(1)Theprinciplesthatareapplicableindecidingwhetheraperson has breached a duty also apply
in deciding whether thepersonwhosufferedharmhasbeenguiltyofcontributorynegligenceinfailingtotakeprecautionsagainsttheriskofthat
harm.(2)For that purpose—(a)the
standard of care required of the person who sufferedharm
is that of a reasonable person in the position of thatperson; andPage 18Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
24](b)thematteristobedecidedonthebasisofwhatthatperson knew or ought reasonably to have
known at thetime.24Contributory negligence can defeat
claimIn deciding the extent of a reduction in
damages by reason ofcontributorynegligence,acourtmaydecideareductionof100%
if the court considers it just and equitable to do so, withthe
result that the claim for damages is defeated.Division 7Enhancement of public safety25Definition for div 7In
this division—person in distressincludes—(a)a person who is injured, apparently
injured or at risk ofinjury; and(b)a
person who is suffering, or apparently suffering, froman
illness.26Protection of persons performing
duties for entities toenhance public safety(1)Civil liability does not attach to a
person in relation to an actdone or omitted
in the course of rendering first aid or other aidor
assistance to a person in distress if—(a)thefirstaidorotheraidorassistanceisgivenbytheperson while performing duties to
enhance public safetyfor an entity prescribed under a
regulation that providesservices to enhance public safety;
and(b)thefirstaidorotheraidorassistanceisgivenincircumstances of emergency; andCurrent as at [Not applicable]Page
19
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
27](c)theactisdoneoromittedingoodfaithandwithoutreckless
disregard for the safety of the person in distressor
someone else.(2)Subsection (1)doesnotlimitoraffecttheLawReformAct1995, part 5.27Protection of prescribed entities
performing duties toenhance public safety(1)Civil liability does not attach to an
entity, prescribed under aregulation, that provides services to
enhance public safety inrelation to an act done or omitted in
the course of renderingfirst aid or other aid or assistance
to a person in distress if—(a)thefirstaidorotheraidorassistanceisgivenbytheentity while performing duties to
enhance public safety;and(b)thefirstaidorotheraidorassistanceisgivenincircumstances of emergency; and(c)theactisdoneoromittedingoodfaithandwithoutreckless
disregard for the safety of the person in distressor
someone else.(2)Subsection (1)doesnotlimitoraffecttheLawReformAct1995, part 5.Part
2Proportionate liability28Application of pt 2(1)Thispartappliestoeitherorbothofthefollowingclaims(apportionable claim)—(a)a claim for
economic loss or damage to property in anaction for
damages arising from a breach of a duty ofcare;Page
20Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
29](b)a claim for economic loss or damage to
property in anaction for damages under theFair
Trading Act 1989foracontraventionoftheAustralianConsumerLaw(Queensland), section 18.(2)Forthispart,ifmorethan1claimofakindmentionedinsubsection (1)(a) or (1)(b) or both
provisions is based on thesame loss or damage, the claims must
be treated as a singleapportionable claim.(3)This part does not apply to a
claim—(a)arising out of personal injury;
or(b)by a consumer.(4)Also, this part does not apply to a claim to
the extent that anAct provides that liability for an amount
payable in relation tothe claim is joint and several.(5)Aprovisionofthispartthatgivesprotectionfromcivilliability does
not limit or otherwise affect any protection fromliability given by any other provision of
this Act or by anotherAct or law.29Definitions for pt 2In this
part—apportionable claimsee section
28(1).consumermeans an
individual whose claim is based on rightsrelating to
goods or services, or both, in circumstances wherethe
particular goods or services—(a)are
being acquired for personal, domestic or householduse
or consumption; or(b)relate to advice given by a
professional to the individualfor the
individual’s use, other than for a business carriedon
by the individual whether solely or as a member of abusiness partnership.court, in
relation to a claim for damages, means any court byor
before which the claim falls to be decided.Current as at
[Not applicable]Page 21
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
30]defendantincludes any
person joined as a defendant or otherparty in the
proceeding (except as a plaintiff) whether joinedunder this part, under rules of court or
otherwise.30Who is a concurrent wrongdoer(1)Aconcurrentwrongdoer,inrelationtoaclaim,isapersonwho is 1 of 2 or
more persons whose acts or omissions caused,independentlyofeachother,thelossordamagethatisthesubject of the
claim.(2)For this part, it does not matter that
a concurrent wrongdoer isinsolvent, is being wound up, has
ceased to exist or has died.31Proportionate liability for apportionable
claims(1)In any proceeding involving an
apportionable claim—(a)theliabilityofadefendantwhoisaconcurrentwrongdoerinrelationtotheclaimislimitedtoanamount reflecting that proportion of
the loss or damageclaimedthatthecourtconsidersjustandequitablehavingregardtotheextentofthedefendant’sresponsibility
for the loss or damage; and(b)judgmentmustnotbegivenagainstthedefendantformore
than that amount in relation to the claim.(2)If
the proceeding involves both an apportionable claim and aclaim that is not an apportionable
claim—(a)liabilityfortheapportionableclaim,totheextentitinvolvesconcurrentwrongdoers,istobedecidedinaccordance with this part; and(b)liability for the other claim, and the
apportionable claimto the extent it is not provided for under
paragraph (a), isto be decided in accordance with the legal
rules, if any,that, apart from this part, are
relevant.(3)InapportioningresponsibilitybetweendefendantsinaproceedingthecourtmayhaveregardtothecomparativePage 22Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
32]responsibility of any concurrent wrongdoer
who is not a partyto the proceeding.(4)Thissectionappliestoaproceedinginrelationtoanapportionable claim whether or not all
concurrent wrongdoersare parties to the proceeding.32Onus of parties to identify all
relevant parties(1)Aperson(claimant)whomakesaclaimtowhichthispartapplies is to
make the claim against all persons the claimanthas reasonable
grounds to believe may be liable for the loss ordamage.(2)A
concurrent wrongdoer, in relation to a claim involving anapportionable claim, must give the claimant
any informationthat the concurrent wrongdoer has—(a)that is likely to help the claimant to
identify and locateanyotherperson(notbeingaconcurrentwrongdoerknown to the claimant) who the concurrent
wrongdoerhas reasonable grounds to believe is also a
concurrentwrongdoer in relation to the claim;
and(b)aboutthecircumstancesthatmaketheconcurrentwrongdoerbelievetheotherpersonisormaybeaconcurrent
wrongdoer in relation to the claim.(3)The
concurrent wrongdoer must give the information to theclaimant,inwriting,assoonaspracticableafterbecomingawareoftheclaimbeingmadeoroftheinformation,whichever is the
later.(4)If the claimant fails to comply with
the claimant’s obligationsunder this section, a court may, on a
concurrent wrongdoer’sapplication, make orders as it
considers just and equitable inthe
circumstances of the case on the following—(a)apportionmentofdamagesproventohavebeenclaimable;(b)costs thrown away as a result of the failure
to comply.Current as at [Not applicable]Page
23
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
32A](5)If a concurrent wrongdoer fails to
comply with the concurrentwrongdoer’sobligationsunderthissection,acourtmayonapplication, if it considers it just
and equitable to do so, makeeither or both
of the following orders—(a)anorderthattheconcurrentwrongdoerisseverallyliable for any
award of damages made;(b)an order that
the concurrent wrongdoer pay costs thrownaway as a result
of the failure to comply.(6)However if, as a
result of information given by a concurrentwrongdoerundersubsection
(2),theclaimantjoinsanotherparty to the
proceeding for the claim, and that party is foundnot
to be liable to the claimant, the court may make ordersaboutcostsasitconsidersjustandequitableinthecircumstances of the case.32AContribution not recoverable from
concurrent wrongdoerSubjecttothispart,aconcurrentwrongdoeragainstwhomjudgmentisgivenunderthispartinrelationtoanapportionable claim—(a)cannotberequiredtocontributetothedamagesrecoveredorrecoverablefromanotherconcurrentwrongdoer for
the apportionable claim, whether or notthe damages are
recovered or recoverable in the sameproceeding in
which the judgment is given; and(b)cannotberequiredtoindemnifytheotherconcurrentwrongdoer.32BSubsequent actions(1)Inrelationtoanapportionableclaim,nothinginthispartpreventsaplaintiffwhohaspreviouslyrecoveredjudgmentagainst a
concurrent wrongdoer for an apportionable part ofany
loss or damage from bringing another action against anyother concurrent wrongdoer for that loss or
damage.(2)However, in any proceeding in relation
to the other action, theplaintiff can not recover an amount of
damages that, havingPage 24Current as at
[Not applicable]
Civil
Liability Act 2003Chapter 2 Civil liability for harm[s
32C]regard to any damages previously recovered
by the plaintiff inrelationtothelossordamage,wouldresultintheplaintiffreceiving
compensation for loss or damage that is greater thanthe
loss or damage actually suffered by the plaintiff.Notauthorised—indicativeonly32CJoining non-party concurrent wrongdoer
in the action(1)Subject to subsection (2), the court
may give leave for any 1or more persons who are concurrent
wrongdoers in relation toanapportionableclaimtobejoinedasdefendantsinaproceeding in relation to that
claim.(2)The court is not to give leave for the
joinder of any personwho was a party to any previously
concluded proceeding inrelation to the apportionable
claim.32DWhat if a concurrent wrongdoer is
fraudulentDespitesections
31and32A,aconcurrentwrongdoerinaproceeding in
relation to an apportionable claim who is foundliablefordamagesandagainstwhomafindingoffraudismade
is severally liable for the damages awarded against anyother concurrent wrongdoer to the
apportionable claim.32EWhat if a concurrent wrongdoer intends
to cause loss ordamageDespitesections 31and32A,aconcurrentwrongdoerinaproceeding in
relation to an apportionable claim who is foundto have intended
to cause the loss or damage suffered, and isfound liable for
damages, is severally liable for the damagesawardedagainstanyotherconcurrentwrongdoertotheapportionable
claim.32FWhat if a concurrent wrongdoer is
proved to haveengaged in misleading or deceptive conduct
under theFair Trading ActDespitesections 31and32A,aconcurrentwrongdoerinaproceedinginrelationtoanapportionableclaimwhoCurrent as at [Not applicable]Page
25
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
32G]contravenestheAustralianConsumerLaw(Queensland),section 18 is
severally liable for the damages awarded againstany
other concurrent wrongdoer to the apportionable claim.32GLiability for contributory negligence
not affectedInapportioningresponsibilityasbetweenconcurrentwrongdoers,thecourtistoexcludetheproportionofthedamageorlossinrelationtowhichtheplaintiffiscontributorily negligent under any relevant
law.32HConcurrent wrongdoer may seek
contribution fromperson not a party to the original
proceedingNothinginthispartpreventsaconcurrentwrongdoerfromseeking,inanotherproceeding,contributionfromsomeoneelse in relation
to the apportionable claim.32IPart not to
affect other liabilityNothing in this part—(a)prevents a person from being held
vicariously liable foraproportionofanyapportionableclaimforwhichanother person
is liable; or(b)prevents a person from being held
jointly and severallyliable for the damages awarded against
another personas agent of the person; or(c)prevents a partner from being held
jointly and severallyliablewithanotherpartnerforthatproportionofanapportionable claim for which the
other partner is liable;or(d)prevents a court from awarding exemplary or
punitivedamages against a defendant in a
proceeding.Page 26Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
33]33Court may give directions(1)This section applies for the purposes
of this part in relation toa claim for
damages.(2)Totheextentamatteraboutthecourt’sprocedureisnotprovided for by
rules of court, the matter may be dealt with bya direction
under subsection (3).(3)On application
by a party, the court may give directions aboutthe way a matter
not dealt with by the rules is to proceed.Part 2ALiability of institutions for childsexual abuseDivision 1Preliminary33ADefinitions for partIn this
part—abuse claimmeans a claim
arising from the sexual abuse of achild by a
person associated with an institution while the childwasunderthecare,supervision,controlorauthorityoftheinstitution.associated
trust, of an institution, see section 33B.associated with, an
institution, see section 33C.current office
holdersee section 33G(2).head, of
an institution, means the person who—(a)is
acknowledged by the institution as its head; or(b)ifparagraph(a)doesnotapply—hasoverallresponsibility for the institution.institution—Current as at [Not applicable]Page
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33B](a)meansanentitythatprovidesanactivity,programorservice of a kind that gives an
opportunity for a personto have contact with a child;
and(b)includes a public sector unit that is
an entity mentionedin paragraph (a); and(c)does
not include a family.nominee,foraninstitution,meansapersonwhoistheinstitution’s
nominee because of a nomination or court orderunder section
33H.33BMeaning of associated trustForthispart,atrustisanassociated trustofaninstitutionif—(a)theinstitutionhas,directlyorindirectly,anyofthefollowing
powers—(i)a power to control the application of
income of thetrust or the distribution of property of the
trust;(ii)a power to
obtain the beneficial enjoyment of theproperty or
income of the trust, with or without theconsent of
another entity;(iii)apowertoappointorremoveatrusteeorbeneficiary of the trust;(iv)apowertodeterminetheoutcomeofanyotherdecision about
the trust’s operations; or(b)a member or
manager of the institution has, under thetrust deed for
the trust, a power mentioned in paragraph(a); or(c)a trustee is accustomed to acting, or
is under a formalorinformalobligationtoact,accordingtothedirections,
instructions or wishes of the institution or amember or
manager of the institution.Page 28Current as at [Not applicable]
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33C]33CWhen is a person associated with an
institution(1)Forthispart,thepersonsassociatedwithaninstitutioninclude—(a)anofficer,representative,leader,member,employee,agent, volunteer or contractor of the
institution; and(b)foraninstitutionthatisareligiousorganisation—aministerofreligionorreligiousleaderoftheorganisation;
and(c)iftheinstitutionhasdelegatedthecare,supervision,control or
authority over a child to another entity (thedelegate)—(i)if the delegate
is an individual—the delegate; and(ii)apersonwhowouldbeapersonmentionedinparagraph(a)or(b)ifthedelegatewerethedelegating institution; and(d)a person prescribed by
regulation.(2)Toremoveanydoubt,itisdeclaredthatapersonisnotadelegate
mentioned in subsection (1)(c) only because a childprotection order is made granting long-term
guardianship ofa child to the person.(3)A
person is not associated with an institution only because
theperson is associated with an entity that is
funded or regulatedby the institution.Division 2Duty
of institutions33DDuty to prevent child sexual
abuseAninstitutionhasadutytotakeallreasonablestepstopreventthesexualabuseofachildbyapersonassociatedwiththeinstitutionwhilethechildisunderthecare,supervision,
control or authority of the institution.Current as at
[Not applicable]Page 29
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33E]33EProof of whether duty was
breached(1)This section applies if a person
associated with an institutionsexuallyabusesachildwhilethechildisunderthecare,supervision,
control or authority of the institution.(2)The
institution is taken to have breached its duty under section33D
unless the institution proves it took all reasonable stepsto
prevent the abuse.(3)In deciding whether the institution
took all reasonable steps toprevent the
abuse, the matters that are relevant include—(a)the
nature of the institution; and(b)theresourcesthatwerereasonablyavailabletotheinstitution;
and(c)therelationshipbetweentheinstitutionandthechild;and(d)the position in which the institution
placed the person inrelationtothechild,includingtheextenttowhichtheposition gave the person—(i)authority, power or control over the
child; or(ii)anabilitytoachieveintimacywiththechildorgain
the child’s trust.Division 3Liability of
particular institutionsand office holders33FLiability of incorporated institution that
wasunincorporated at time of abuse(1)This section applies if—(a)a person (theclaimant)
suffered sexual abuse as a childbyapersonassociatedwithaninstitution(theassociatedperson)whiletheclaimantwasunderthecare, supervision, control or authority of
the institution;andPage 30Current as at
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33G](b)theclaimanthasorhadacauseofactionagainstaperson (theformer office
holder) who held an office ofauthority in the
institution (therelevant office) when
thecauseofactionaccrued,foundedontheformerofficeholder’sresponsibilityfortheinstitutionorfortheassociated
person; and(c)theinstitutionwasanunincorporatedbodywhenthecause of action accrued; and(d)the institution is an incorporated
body; and(e)the claimant is able to maintain an
action on the causeof action, or would be able to maintain an
action on thecause of action if the former office holder
still held therelevant office.(2)Aproceedingfortheclaimant’scauseofactionmaybestarted or continued against the
institution.(3)Any liability that the former office
holder has or would havehad in relation to the cause of action
is taken to be a liabilityof the institution.33GLiability of current office holder of
unincorporatedinstitution(1)This
section applies if—(a)a person (theclaimant)
suffered sexual abuse as a childbyapersonassociatedwithaninstitution(theassociatedperson)whiletheclaimantwasunderthecare, supervision, control or authority of
the institution;and(b)theclaimanthasorhadacauseofactionagainstaperson (theformer office
holder) who held an office ofauthority in the
institution (therelevant office) when
thecauseofactionaccrued,foundedontheformerofficeholder’sresponsibilityfortheinstitutionorfortheassociated
person; and(c)theinstitutionwasanunincorporatedbodywhenthecause of action accrued; andCurrent as at [Not applicable]Page
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33H](d)the institution is an unincorporated
body; and(e)theformerofficeholdernolongerholdstherelevantoffice;
and(f)the claimant would be able to maintain
an action on thecause of action if the former office holder
still held therelevant office.(2)Aproceedingfortheclaimant’scauseofactionmaybestarted or continued against the
current holder of the relevantoffice
(thecurrent office holder) in the name of
the office.(3)Any liability that the former office
holder has or would havehad in relation to the cause of action
is taken to be a liabilityof the current office holder.33HClaim against unincorporated
institution and nominationof appropriate defendant(1)Thissectionappliesinrelationtoaninstitutionthatisanunincorporated
body.(2)A proceeding for an abuse claim may be
started against theinstitution.(3)AnoticeofaclaimrequiredtobegiventotheinstitutionunderthePersonalInjuriesProceedingsAct2002,section9(1)
must be given to the head of the institution.(4)Theinstitutionmaynominateaperson,withtheperson’sconsent, to be
the appropriate defendant for the purposes ofan abuse claim
against the institution.(5)Subsection (6)
applies if—(a)at least 120 days have passed since a
proceeding for anabuse claim was started against the
institution; and(b)either—(i)there is no nominee for the institution;
or(ii)acourtissatisfiedtheinstitution’snomineedoesnot have
sufficient assets to satisfy a liability thatmay be found
under a decision on the abuse claim.Page 32Current as at [Not applicable]
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33I](6)Onapplicationbytheclaimant,acourtmayorderthatthetrusteeofanassociatedtrustoftheinstitutionistheinstitution’s nominee if the court is
satisfied the order wouldbe appropriate.(7)Acourtmaygivethedirectionsandmaketheordersitconsiders appropriate for the purpose of
establishing—(a)whether a trust is an associated trust
of the institution;or(b)whether a
nominee of the institution has sufficient assetsto
satisfy a liability that may be found under a decisionon
the abuse claim; or(c)whetheritwouldbeappropriatetomakeanorderinrelationtoanassociatedtrustoftheinstitutionundersubsection (6).33IProceeding against nominee of
unincorporatedinstitutionThefollowingappliesif,undersection33H,thereisanominee for an
institution—(a)aproceedingforanabuseclaimmaybestartedorcontinued against the nominee;(b)any liability of the institution under
the court’s decisionon the abuse claim is incurred by the
nominee;(c)anythingdonebytheinstitutionistakentohavebeendone
by the nominee;(d)a duty or obligation of the
institution in relation to theproceeding is a
duty or obligation of the nominee;(e)theinstitutionmustcontinuetoparticipateintheproceedingandacourtmaymakeanorderorgiveadirection relating to the institution as if
it were a person;(f)acourtmaymakeasubstantivefindingintheproceeding
against the institution as if it were a person;Current as at
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33J](g)the nominee may rely on any defence or
immunity thatwould be available to the institution as a
defendant inthe proceeding if the institution were a
person;(h)any right of the institution to be
indemnified (includingunderaninsurancepolicy)inrespectofdamagesawarded in an
abuse claim extends to, and indemnifies,the
nominee;(i)if there is more than 1 nominee, the
nominees must file asingle defence and proceed as a single
defendant.Division 4Satisfaction of
liability33JAssets available to satisfy liability
of institution(1)Thissectionappliesifaninstitutionhasaliabilityunderajudgment in, or settlement of, an
abuse claim.(2)The institution may satisfy the
liability out of the assets of theinstitutionandtheassetsofanassociatedtrustthattheinstitution uses to carry out its functions
or activities.33KAssets available to satisfy liability
of nominee(1)This section applies if an
institution’s nominee has a liabilityunder a judgment
in, or settlement of, an abuse claim.(2)Ifthenomineeisthetrusteeofanassociatedtrustoftheinstitution,thenomineemaysatisfytheliabilityoutoftheassets of the
trust and the assets of the institution.(3)Otherwise,thenomineemaysatisfytheliabilityoutofitsassets and the
assets of the institution.33LAssets available
to satisfy liability of current office holder(1)This
section applies if, under section 33G(3), a current officeholder has a liability under a judgment in,
or settlement of, anabuse claim.Page 34Current as at [Not applicable]
Civil
Liability Act 2003Chapter 2 Civil liability for harm[s
33M](2)Thecurrentofficeholderisnotpersonallyliablebutmaysatisfy the
liability out of the assets of the institution and theassets of an associated trust that the
institution uses to carryout its functions or
activities.Notauthorised—indicativeonly33MSatisfaction of liability by trustee
of associated trust(1)Thissectionappliesinrelationtoaliabilitythat,undersection 33J, 33K
or 33L, may be satisfied out of the assets ofan associated
trust of an institution.(2)Thetrusteeoftheassociatedtrustmaypayanamountinsatisfaction of the liability and, for that
purpose, may realiseassets of the trust.(3)The satisfaction of the liability is a
proper expense for whichthetrusteemaybeindemnifiedoutofthetrustproperty,irrespectiveofanylimitationonanyrightofindemnitythetrustee may have.(4)Theliabilityofthetrusteeoftheassociatedtrustastheinstitution’snomineeislimitedtothevalueofthetrustproperty.Division 5Miscellaneous33NEntities may act despite other laws and
dutiesAn institution, an institution’s nominee, a
current office holderor the trustee of an associated trust
of an institution may actunder division 4, and the trustee of
an associated trust of aninstitutionmayconsenttobeingtheinstitution’snominee,despite—(a)another law; or(b)the
terms of the associated trust (including a trust for acharitable purpose); or(c)a
duty, whether as the current holder of an office in theinstitution or as trustee or
otherwise.Current as at [Not applicable]Page
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33O]33OContinuity of institutions(1)For this part, an institution
(thecurrent institution) is
takento be the same institution as the
institution that breached itsdutyundersection33Dorwasaninstitutionmentionedinsection33F(1)(a)or33G(1)(a)(theoldinstitution)ifitissubstantiallythesameasitwaswhentherelevantcauseofaction accrued, even if—(a)its name has changed; or(b)its organisational structure has
changed; or(c)it has become incorporated; or(d)its functions or activities are
carried out at a differentplace.(2)Without limiting subsection (1), the current
institution is takento be substantially the same as it was
when the relevant causeofactionaccruedifthetypeofmember,anditsprimarypurposes or
functions, are substantially the same as they wereat
that time.(3)Ifthereisnoinstitutionthatisthesameinstitution,orsubstantiallythesameinstitution,astheoldinstitution,arelevant successor of the old institution is
taken to be the sameinstitution as the old
institution.(4)For subsection (3), an institution
(also thecurrent institution)is a
relevant successor of the old institution if—(a)all
or part of the old institution merged into the currentinstitution; or(b)all
or part of the old institution merged with 1 or moreother entities to form the current
institution; or(c)thecurrentinstitutionistheremainderoftheoldinstitution
after part of the old institution ceased to bepart of the old
institution; or(d)inacaseinwhichthereisatleast1institutioninterposed,overtime,betweentheoldinstitutionandthecurrentinstitution—atleast1ofthefollowingPage 36Current as at [Not applicable]
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33P]circumstances applies to each link in the
chain betweenthe old institution and the current
institution—(i)allorpartofanearlierinstitutionmergedintoanother
institution;(ii)all or part of
an earlier institution merged with 1or more other
entities to form another institution;(iii)aninstitutionistheremainderofanearlierinstitutionafterpartoftheearlierinstitutionceased to be
part of the earlier institution;(iv)aninstitutionasitisataparticulartimeissubstantially the same as it was at an
earlier time;or(e)the current
institution is prescribed by regulation to bethe relevant
successor of the old institution.(5)The
Minister may recommend to the Governor in Council themaking of a regulation under subsection
(4)(e) only if satisfiedthat—(a)the
current institution has a relevant connection to theold
institution; or(b)theheadofthecurrentinstitutionhasagreedtothecurrentinstitutionbeingtherelevantsuccessoroftheold institution
for this section.33PContinuity of offices(1)This section applies for the purpose
of section 33G.(2)It is sufficient that an office in the
institution is substantiallythe same as it
was when the relevant cause of action accrued.(3)If
there is no current office in the institution that is the same
orsubstantiallythesameastherelevantofficementionedinsection 33G(1)(b), the current head of the
institution is takento be the current office
holder.Current as at [Not applicable]Page
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33Q]33QCorporations Act displacementSections33Ito33NaredeclaredtobeCorporationslegislation
displacement provisions for the Corporations Act,section5GinrelationtotheCorporationslegislationgenerally.Notauthorised—indicativeonlyPart
3Liability of public and otherauthorities and volunteersDivision 1Public and other
authorities34Definitions for div 1In
this division—functionincludes
power.public or other authoritymeans—(a)theCrown(withinthemeaningoftheCrownProceedings Act
1980); or(b)a
local government; or(c)any public
authority constituted under an Act.35Principles concerning resources,
responsibilities etc. ofpublic or other authoritiesThefollowingprinciplesapplytoaproceedingindecidingwhether a public
or other authority has a duty or has breacheda duty—(a)the functions required to be exercised
by the authorityare limited by the financial and other
resources that arereasonably available to the authority for
the purpose ofexercising the functions;Page
38Current as at [Not applicable]
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36](b)the general allocation of financial or
other resources bythe authority is not open to
challenge;(c)the functions required to be exercised
by the authorityare to be decided by reference to the broad
range of itsactivities (and not merely by reference to
the matter towhich the proceeding relates);(d)theauthoritymayrelyonevidenceofitscompliancewith its general
procedures and any applicable standardsfor the exercise
of its functions as evidence of the properexerciseofitsfunctionsinthemattertowhichtheproceeding relates.36Proceedings against public or other
authorities based onbreach of statutory duty(1)Thissectionappliestoaproceedingthatisbasedonanalleged wrongful exercise of or
failure to exercise a functionof a public or
other authority.(2)For the purposes of the proceeding, an
act or omission of theauthoritydoesnotconstituteawrongfulexerciseorfailureunlesstheactoromissionwasinthecircumstancessounreasonablethatnopublicorotherauthorityhavingthefunctions of the authority in question could
properly considerthe act or omission to be a reasonable
exercise of its functions.37Restriction on
liability of public or other authorities withfunctions of road
authorities(1)Apublicorotherauthorityisnotliableinanylegalproceeding for any failure by the authority
in relation to anyfunction it has as a road authority—(a)to repair a road or to keep a road in
repair; or(b)to inspect a road for the purpose of
deciding the need torepair the road or to keep the road in
repair.(2)Subsection (1)doesnotapplyifatthetimeoftheallegedfailuretheauthorityhadactualknowledgeoftheparticularrisk the
materialisation of which resulted in the harm.Current as at
[Not applicable]Page 39
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Liability Act 2003Chapter 2 Civil liability for harm[s
38](3)In this section—roadsee
theTransport Operations (Road Use
Management)Act 1995, schedule
4.road authoritymeans the entity
responsible for carrying outany road
work.Notauthorised—indicativeonlyDivision 2Food donors and
volunteersSubdivision 1Interpretation38Interpretation(1)In
this division—communityorganisationmeansanyofthefollowingthatorganises the doing of community work by
volunteers—(a)a corporation;(b)a
trustee acting in the capacity of trustee;(c)a
church or other religious group;(d)aregisteredpoliticalpartyasdefinedundertheElectoral Act 1992or theCommonwealth Electoral Act1918(Cwlth);(e)a public or other authority as defined
under section 34;(f)aparentsandcitizensassociationformedundertheEducation (General Provisions) Act
2006, chapter 7;(g)another entity prescribed under a
regulation.community workmeans work that
is not for private financialgainandthatisdoneforacharitable,benevolent,philanthropic,
sporting, recreational, political, educational orcultural purpose, and includes making
donations of food if thedonations are not for private
financial gain and are done for acharitable,benevolent,philanthropic,sporting,recreational,political,
educational or cultural purpose.Page 40Current as at [Not applicable]
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38A]food donor—(a)meansanentitythat,ingoodfaithforacharitable,benevolent,philanthropic,sporting,recreational,political,educationalorculturalpurpose,donatesordistributes food with the intention that the
consumer ofthe food will not have to pay for the food;
but(b)does not include—(i)anentitythatdirectlydistributesthefoodtotheconsumer of the food; or(ii)a
volunteer.organisedincludes
directed or supervised.possessionincludes
control.volunteermeans an
individual who—(a)does community work on a voluntary
basis; or(b)donatesfoodinthecircumstancesmentionedinsection 39(3).workincludes any activity.(2)For
the purposes of this division—(a)community work done by a person under an
order of acourt is not to be regarded as work done on
a voluntarybasis; and(b)communityworkforwhichapersonreceivesremuneration by way of reimbursement of the
person’sreasonable expenses in doing the work is to
be regardedas work done on a voluntary basis.Subdivision 2Food
donors38AProtection of food donors(1)A food donor does not incur any civil
liability in relation toany act or omission done or made by
the food donor, whendonating or distributing food in the
circumstances mentionedCurrent as at [Not applicable]Page
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38B]insubsection (2),givingrisetoharmresultingfromtheconsumption of the food.(2)The
circumstances are—(a)that the food was safe to consume at
the time it left thefood donor’s possession; and(b)if the food was of a nature that
required it to be handledin a particular way to remain safe to
consume after it leftthefooddonor’spossession—thatthefooddonorinformedtherecipientofthefoodofthehandlingrequirements;
and(c)ifthefoodonlyremainedsafetoconsumeforaparticularperiodoftimeafteritleftthefooddonor’spossession—that the food donor informed the
recipientof the food of the time limit.(3)In this section—recipient, of
the food, means the entity directly receiving thefood
from the food donor.38BLiability not excluded if insurance
requiredThis subdivision does not confer protection
from liability on afood donor if the liability is a liability
that is required under awritten law of the State to be insured
against.38CLiability not excluded for motor
accidentsThe protection from liability conferred on a
food donor by thissubdivision does not apply if the liability
would, apart fromthis subdivision, be covered by a CTP
insurance policy undertheMotorAccidentInsuranceAct1994,orberecoverablefrom the Nominal
Defendant under that Act.Page 42Current as at
[Not applicable]
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Act 2003Chapter 2 Civil liability for harm[s
39]39Protection of volunteers(1)Avolunteerdoesnotincuranypersonalcivilliabilityinrelation to any act or omission done or made
by the volunteerin good faith when doing community
work—(a)organised by a community organisation;
or(b)as an office holder of a community
organisation.(2)A person does not incur any personal
civil liability in relationtoanyactoromissiondoneormadebytheperson,whendonatingfoodinthecircumstancesmentionedinsubsection (3),givingrisetoharmresultingfromtheconsumption of the food.(3)The
circumstances are—(a)thatthepersondonatedthefoodtoacommunityorganisation—(i)ingoodfaithforacharitable,benevolent,philanthropic,sporting,recreational,political,educational or
cultural purpose; and(ii)withtheintentionthattheconsumerofthefoodwould not have
to pay for the food; and(b)that the food
was safe to consume at the time it left theperson’s
possession; and(c)if the food was of a nature that
required it to be handledin a particular way to remain safe to
consume after it lefttheperson’spossession—thattheperson informedthecommunityorganisationof thehandlingrequirements;and(d)ifthefoodonlyremainedsafetoconsumeforaparticularperiodoftimeafteritlefttheperson’spossession—thatthepersoninformedthecommunityorganisation of
the time limit.Current as at [Not applicable]Page
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40]40Liability not excluded for criminal
actsThissubdivisiondoesnotconferprotectionfrompersonalliability on a
volunteer in relation to an act or omission of thevolunteer if it is established (on the
balance of probabilities)thatatthetimeoftheactoromissionthevolunteerwasengaged in conduct that constitutes an
offence.41Liability of intoxicated volunteer not
excludedTheprotectionfrompersonalliabilityconferredonavolunteerbythissubdivisioninconnectionwithanycommunity work does not apply if the
volunteer—(a)was intoxicated when doing the work;
and(b)failedtoexerciseduecareandskillwhendoingthework.42Liability of volunteer not excluded if
acting outside scopeof activities or contrary to
instructionsThissubdivisiondoesnotconferprotectiononavolunteerfrom personal
liability in relation to an act or omission of avolunteer if the volunteer knew or ought
reasonably to haveknown that he or she was acting—(a)outsidethescopeoftheactivitiesauthorisedbythecommunity organisation concerned;
or(b)contrarytoinstructionsgivenbythecommunityorganisation.43Liability not excluded if insurance
requiredThissubdivisiondoesnotconferprotectionfrompersonalliabilityonavolunteeriftheliabilityisaliabilitythatthevolunteer is requiredunder a written
law of the State to beinsured against.Page 44Current as at [Not applicable]
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44]44Liability not excluded for motor
accidentsTheprotectionfrompersonalliabilityconferredonavolunteerbythissubdivisiondoesnotapplyiftheliabilitywould,apartfromthissubdivision,becoveredbyaCTPinsurancepolicyundertheMotorAccidentInsuranceAct1994, or be
recoverable from the Nominal Defendant underthat Act.Part
4Exclusion from claimingdamages because
of particularbehaviourDivision 1Criminal behaviour45Criminals not to be awarded damages(1)A person does not incur civil
liability if the court is satisfiedon the balance
of probabilities that—(a)the breach of
duty from which civil liability would arise,apart from this
section, happened while the person whosufferedharmwasengagedinconductthatisanindictable
offence; and(b)the person’s conduct contributed
materially to the risk ofthe harm.(2)Despitesubsection
(1),thecourtmayawarddamagesinaparticularcaseifsatisfiedthatinthecircumstancesofthecase, subsection (1) would operate
harshly and unjustly.(3)If the court
decides to award damages under subsection (2),the court must
assess damages on the basis that the damagesto which the
injured person would be entitled, apart from thissection, are to be reduced, on account of
the injured person’sconduct, by 25% or a greater
percentage decided by the courtto be
appropriate in the circumstances of the case.Current as at
[Not applicable]Page 45
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46](4)Itdoesnotmatterwhetherthepersonwhoseconductisalleged to constitute an indictable offence
has been, will be oris or was capable of being proceeded
against or convicted ofan indictable offence.(5)If the person has been dealt with for
the offence, it does notmatterwhetherthepersonwasdealtwithonindictmentorsummarily.Division 2Intoxication46Effect of intoxication on duty and standard
of care(1)The following principles apply in
relation to the effect that aperson’s
intoxication has on the duty and standard of care thatthe
person is owed—(a)indecidingwhetheradutyofcarearises,itisnotrelevant to consider the possibility or
likelihood that apersonmaybeintoxicatedorthatapersonwhoisintoxicatedmaybeexposedtoincreasedriskbecausetheperson’scapacitytoexercisereasonablecareandskill is impaired as a result of being
intoxicated;(b)a person is not owed a duty of care
merely because theperson is intoxicated;(c)the
fact that a person is or may be intoxicated does notof
itself increase or otherwise affect the standard of careowed
to the person.(2)Subsection (1) does not affect a
liability arising out of conducthappening on
licensed premises.(3)In this section—licensed
premisessee theLiquor Act
1992, section 4.Page 46Current as at [Not applicable]
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47]47Presumption of contributory negligence
if person whosuffers harm is intoxicated(1)Thissectionappliesifapersonwhosufferedharmwasintoxicated at the time of the breach
of duty giving rise to aclaim for damages and contributory
negligence is alleged bythe defendant.(2)Contributorynegligencewill,subjecttothissection,bepresumed.(3)The
person may only rebut the presumption by establishing onthe
balance of probabilities—(a)that the
intoxication did not contribute to the breach ofduty; or(b)that
the intoxication was not self-induced.(4)Unlessthepersonrebutsthepresumptionofcontributorynegligence, the
court must assess damages on the basis thatthedamagestowhichthepersonwouldbeentitledintheabsenceofcontributorynegligencearetobereduced,onaccountofcontributorynegligence,by25%oragreaterpercentagedecidedbythecourttobeappropriateinthecircumstances of the case.(5)If,inthecaseofamotorvehicleaccident,thepersonwhosuffered harm was the driver of a motor
vehicle involved inthe accident and the evidence
establishes—(a)thattheconcentrationofalcoholinthedriver’sbloodwas
150mg or more of alcohol in 100mL of blood; or(b)thatthedriverwassomuchundertheinfluenceofalcoholoradrugastobeincapableofexercisingeffective
control of the vehicle;theminimumreductionprescribedbysubsection (4)isincreased to 50%.Current as at
[Not applicable]Page 47
Civil
Liability Act 2003Chapter 2 Civil liability for harm[s
48]Notauthorised—indicativeonly48Presumption of contributory negligence
if person whosuffers harm relies on care and skill of
person known tobe intoxicated(1)This
section applies to a person who suffered harm (plaintiff)who—(a)was
at least 16 years at the time of the breach of dutygiving rise to the harm; and(b)reliedonthecareandskillofapersonwhowasintoxicatedatthetimeofthebreachofduty(defendant); and(c)was aware, or ought reasonably to have
been aware, thatthe defendant was intoxicated.(2)If the harm suffered by the plaintiff
was caused through thenegligenceofthedefendantandthedefendantallegescontributorynegligenceonthepartoftheplaintiff,contributorynegligencewill,subjecttothissection,bepresumed.(3)The
plaintiff may only rebut the presumption if the plaintiffestablishes, on the balance of
probabilities, that—(a)thedefendant’sintoxicationdidnotcontributetothebreach of duty; or(b)the
plaintiff could not reasonably be expected to haveavoided relying on the defendant’s care and
skill.(4)Unlesstheplaintiffrebutsthepresumptionofcontributorynegligence, the
court must assess damages on the basis thatthedamagestowhichtheplaintiffwouldbeentitledintheabsenceofcontributorynegligencearetobereduced,onaccountofcontributorynegligence,by25%oragreaterpercentagedecidedbythecourttobeappropriateinthecircumstances of the case.(5)Thecommonlawdefenceofvoluntaryassumptionofriskdoes not apply
to a matter to which this section applies.Editor’s
note—‘Voluntary assumption of risk’ is sometimes
stated as ‘volenti non fitinjuria’.Page 48Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 2 Civil liability for harm[s
49]49Additional presumption for motor
vehicle accident(1)This section applies to a plaintiff
and defendant mentioned insection 48.(2)If—(a)the breach of
duty giving rise to the harm suffered by theplaintiff was a
motor vehicle accident; and(b)the
plaintiff was a passenger in the motor vehicle; and(c)the motor vehicle was driven by the
defendant; and(d)either—(i)theconcentrationofalcoholinthedefendant’sblood was 150mg
or more of alcohol in 100mL ofblood; or(ii)the defendant
was so much under the influence ofalcohol or a
drug as to be incapable of exercisingeffective
control of the vehicle;theminimumreductionprescribedbysection 48(4)isincreased to 50%.(3)The
plaintiff is taken, for this section, to rely on the care
andskill of the defendant.Part 5Awards for economic lossfollowing
sterilisationprocedure or contraceptiveprocedure or advice49AFailed sterilisation procedures(1)Thissectionappliesif,followingaproceduretoeffectthesterilisation of an individual, the
individual gives birth to, orfathers, a child
because of the breach of duty of a person inadvising about,
or performing, the procedure.Current as at
[Not applicable]Page 49
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 49B]Examples of
sterilisation procedures—tubal ligation and vasectomy(2)A court can not award damages for
economic loss arising outof the costs ordinarily associated
with rearing or maintaining achild.49BFailed contraceptive procedure or
contraceptive advice(1)This section
applies if, following a contraceptive procedure onanindividualorthegivingofcontraceptiveadvicetoanindividual,theindividualgivesbirthto,orfathers,achildbecause of the
breach of duty of a person in advising about, orperforming, the procedure or giving the
advice.(2)A court can not award damages for
economic loss arising outof the costs ordinarily associated
with rearing or maintaining achild.Chapter 3Assessment of
damages forpersonal injuryPart 1Preliminary50Application of ch 3Subject to
section 5, this chapter applies only in relation to anaward of personal injury damages.51Definitions for ch 3In
this chapter—general damagesmeans damages
for—(a)pain and suffering; orPage
50Current as at [Not applicable]
Civil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 52](b)loss
of amenities of life; or(c)loss of
expectation of life; or(d)disfigurement.injurymeans personal injury.Notauthorised—indicativeonlyPart
2Exemplary and similardamages52Exemplary, punitive or aggravated
damages can not beawarded(1)Acourtcannotawardexemplary,punitiveoraggravateddamages in
relation to a claim for personal injury damages.(2)Subsection (1) does not apply to a
claim for personal injurydamages if the act that caused the
personal injury was—(a)anunlawfulintentionalactdonewithintenttocausepersonal injury;
or(b)anunlawfulsexualassaultorotherunlawfulsexualmisconduct.Part 2AParticipants in national injuryinsurance scheme, Queensland52ADefinitions for partIn
this part—insuranceagencymeanstheNationalInjuryInsuranceAgency,QueenslandestablishedundertheNationalInjuryAct.Current as at
[Not applicable]Page 51
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 52B]insuranceschememeansthenationalinjuryinsurancescheme,QueenslandestablishedundertheNationalInjuryAct,
chapter 2.motor accidentsee the National
Injury Act, section 4(1)(b).NationalInjuryActmeanstheNationalInjuryInsuranceScheme
(Queensland) Act 2016.serious personal
injurysee the National Injury Act, schedule1.52BRestriction on
damages for participants in insurancescheme(1)This section applies to the awarding
of damages for personalinjury resulting from a motor accident
if the person sufferingthe injury is, or was, a participant
in the insurance scheme inrelation to a serious personal injury
resulting from the motoraccident.(2)Acourtcannotawarddamagesinrelationtotheperson’streatment, care
and support needs that—(a)result from the
personal injury; and(b)arise, or arose,
while the person is, or was, a participantin the insurance
scheme.(3)This section applies—(a)whether or not the personal injury is
a serious personalinjury; and(b)whether or not the treatment, care and
support needs arean approved service for the person under the
NationalInjury Act; and(c)whetherornottheinsuranceagencymust,underthatAct,
make a payment in relation to the treatment, careand
support needs; and(d)whetherornotthetreatment,careandsupportisprovided without charge.(4)Also, this section applies subject to
section 52C.Page 52Current as at
[Not applicable]
Civil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 52C](5)In
this section—participant, in the
insurance scheme, see the National InjuryAct, section
14(1).treatment,careandsupportneedsseetheNationalInjuryAct, section
8.Notauthorised—indicativeonly52CDamages if insurance agency is liable
to contribute(1)This section applies to a claim for
personal injury damagesagainstaninsurerundertheMotorAccidentInsuranceAct1994if—(a)the personal injury resulted from a
motor accident; and(b)thepersonsufferingthepersonalinjuryisalifetimeparticipantintheinsuranceschemeinrelationtoaseriouspersonalinjuryresultingfromthemotoraccident;
and(c)a court decides—(i)the
person is not guilty of contributory negligencein relation to
the claim; or(ii)the person is
guilty of contributory negligence inrelationtotheclaimandthedamagesthatthepersonwouldbeentitledtointheabsenceofcontributory negligence are to be
reduced, becauseof the contributory negligence, by less than
50%;and(d)the insurance
agency is liable, under the National InjuryAct,section42,tocontributetowardstheinsurer’sliabilityontheclaimfortreatment,careandsupportdamages.(2)The court may award treatment, care
and support damages.(3)However,ifthecourtawardstreatment,careandsupportdamages, the
court must not, in assessing the amount of thetreatment,careandsupportdamages,takeintoaccountanycontributory negligence of the
person.Current as at [Not applicable]Page
53
Civil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 53](4)In
this section—lifetime participantsee the National
Injury Act, section 14(2).treatment, care and support
damagessee the National InjuryAct, schedule
1.Notauthorised—indicativeonlyPart
3Assessment of damages53Notice requiring mitigation of
damages(1)Ifadefendantisnotsatisfiedwiththeactiontakenbyaplaintifftomitigatedamages,thedefendantmaygivetheplaintiff written notice suggesting
specified action the plaintiffshould take to
mitigate damages.(2)The notice may, for example, suggest
that—(a)theplaintiffshouldundergomedicaltreatmentofaspecified kind;
or(b)the plaintiff should return to work or
take specified stepsto obtain employment; or(c)the plaintiff should undergo
rehabilitation therapy of aspecifiedkind,orundertakespecifiedprogramsofrehabilitation and training.(3)Subsection (1) does not limit the
plaintiff’s duty to mitigatedamages.(4)In assessing damages for personal
injury, the court must—(a)considerwhethertheplaintiffhasfailedtotakereasonable steps
to mitigate damages by not followingsuggestions made
under this section or a written noticegiven under
thePersonal Injuries Proceedings Act
2002,section 26; and(b)if
the notice suggested that the plaintiff undergo medicaltreatment or rehabilitation therapy of a
specified kind—considerwhetherthenoticewasaccompaniedbyanPage 54Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 54]offerbythedefendanttopayforthecostofthetreatment or therapy; and(c)ifitappearstheplaintiffhasfailedtotakestepstomitigatedamagesbynotfollowingthesuggestions—reduce the
plaintiff’s damages to an appropriate extentreflectingthefailureif,inallthecircumstances,thecourt considers that the plaintiff’s failure
to follow thesuggestions was not reasonable.(5)Subsection (4)doesnotapplyinassessingdamagesforpersonalinjuryifleavetostarttheproceedingwasgivenunderthePersonalInjuriesProceedingsAct2002,section 43(1) and was not stayed under
section 43(3) of thatAct because section 43(4) of that Act
applied.(6)In this section—defendantmeans a person against whom a claim for
personalinjury damages is made whether or not a
proceeding for theclaim has been started.plaintiffmeans an injured person making a claim for
personalinjury damages whether or not a proceeding
for the claim hasbeen started.54Damages for loss of earnings(1)In making an award of damages for loss
of earnings, includingin a dependency claim, the maximum
award a court may makeis for an amount equal to the limit
fixed by subsection (2).(2)The limit is an
amount equal to the present value of 3 timesaverage weekly
earnings per week for each week of the periodof loss of
earnings.(3)In this section—present
valuemeans the value when the award is
made.Current as at [Not applicable]Page
55
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 55]55When
earnings can not be precisely calculated(1)This
section applies if a court is considering making an awardof
damages for loss of earnings that are unable to be preciselycalculated by reference to a defined weekly
loss.(2)The court may only award damages if it
is satisfied that thepersonhassufferedorwillsufferlosshavingregardtotheperson’sage,workhistory,actuallossofearnings,anypermanent impairment and any other relevant
matters.(3)Ifthecourtawardsdamages,thecourtmuststatetheassumptionsonwhichtheawardisbasedandthemethodology it used to arrive at the
award.(4)The limitation mentioned in section
54(2) applies to an awardof damages under this section.56Damages for loss of superannuation
entitlements(1)The maximum amount of damages that may
be awarded to anemployeeforeconomiclossduetothelossofemployersuperannuationcontributionsistherelevantpercentageofdamagespayable(inaccordancewiththispart)forthedeprivation or
impairment of the earning capacity on whichthe entitlement
to the contributions is based.(2)The
relevant percentage is the percentage of earnings that isthe
minimum percentage required by a written law to be paidontheemployee’sbehalfasemployersuperannuationcontributions.57Discount rate for calculating present value
of future lossor gratuitous services(1)When
assessing an amount of damages as a lump sum for afuturelossorgratuitousservices,theamountmustbethepresent value,
calculated using the prescribed discount rate, ofthe
future loss or gratuitous services.(2)In
this section—Page 56Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 58]prescribeddiscountrate,foranaward,seetheCivilProceedings Act 2011, section
61.58Damages for loss of consortium or loss
of servitium(1)Acourtmustnotawarddamagesforlossofconsortiumorloss
of servitium unless—(a)the injured
person died as a result of injuries suffered; or(b)generaldamagesfortheinjuredpersonareassessed(beforeallowingforcontributorynegligence)attheamount prescribed under a regulation
for this provision,or more.Note—Under section 75, the Minister must make a
recommendationabout the amount to be prescribed.(2)The court must not assess damages for
loss of servitium abovethe limit fixed by subsection
(3).(3)The limit is 3 times average weekly
earnings per week.59Damages for gratuitous services
provided to an injuredperson(1)Damages for gratuitous services provided to
an injured personare not to be awarded unless—(a)the services are necessary; and(b)the need for the services arises
solely out of the injury inrelation to
which damages are awarded; and(c)the
services are provided, or are to be provided—(i)for
at least 6 hours per week; and(ii)for
at least 6 months.(2)Damagesarenottobeawardedforgratuitousservicesifgratuitous services of the same kind
were being provided forthe injured person before the breach
of duty happened.Current as at [Not applicable]Page
57
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 59A](3)Inassessingdamagesforgratuitousservices,acourtmusttake
into account—(a)anyoffsettingbenefittheserviceproviderobtainsthrough
providing the services; and(b)periods for which the injured person has not
required oris not likely to require the services
because the injuredperson has been or is likely to be cared for
in a hospitalor other institution.59ADamages for gratuitous domestic services
provided byan injured person(1)Subject to section 59B, damages (section 59A damages) maybe
awarded to an injured person for any loss of the person’scapacity to provide gratuitous domestic
services to someoneelse (therecipient) if
subsection (2) or (4) applies.(2)Generally, the court may award section 59A
damages only ifit is satisfied of all of the
following—(a)either—(i)the
injured person died as a result of the injuriessuffered;
or(ii)generaldamagesfortheinjuredpersonareassessed(beforeallowingforcontributorynegligence)attheamountprescribedundersection 58, or more;(b)at
the relevant time the recipient was—(i)a
person who resided at the injured person’s usualresidence; or(ii)an
unborn child of the injured person;(c)before the relevant time, the injured
person—(i)provided the services to the
recipient; or(ii)if the recipient
was then an unborn child—wouldhaveprovidedservicestotherecipienthadtherecipient been
born;Page 58Current as at
[Not applicable]
Civil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 59A]Notauthorised—indicativeonly(d)the recipient was, or will be,
incapable of performing theservicespersonallybecauseoftherecipient’sageorphysical or mental incapacity;(e)thereisareasonableexpectationthat,ifnotfortherelevant injury, the injured person
would have providedthe services to the recipient—(i)for at least 6 hours a week;
and(ii)for a period of
at least 6 months;(f)there will be a need for the services
for the hours and theperiodmentionedinparagraph(e),andtheneedisreasonable in all the
circumstances.(3)Subsection (4) applies if—(a)the court is satisfied, as required
under subsection (2), inallrespectsotherthanthattheinjuredpersonwouldhave provided
the services for the hours and the periodmentioned in
subsection (2)(e) and (f); and(b)therecipientwasprovidedwithaccommodationbyaparent other than the injured person
or with other care towhich all of the following
apply—(i)it included accommodation provided
other than bythe injured person;(ii)it
was provided because the recipient is aged, frailor
suffers from a mental or physical disability;(iii)its
primary purpose was to give the recipient or theinjuredpersonabreakfromtheirusualcarearrangements.(4)Thecourtmayawardsection
59Adamagesifitconsidersthat—(a)the injured person would not have
provided the servicesfor the hours and the period because
of the provision ofthe accommodation or the other care;
and(b)awardingthedamagesisreasonableinallthecircumstances.Current as at
[Not applicable]Page 59
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 59B]Examples of
circumstances that may make the award reasonable—1The injured person would have had
custody of the recipient eachalternate week
for a full week at a time.2The recipient
would have spent part of their school holidays with anon-custodial parent.3The
recipient is an elderly parent and is placed in short-term
oroccasional respite care at a nursing
home.(5)In this section—gratuitousdomesticservicesmeansservicesofadomesticnature for which
there has been, and will be, no payment orliability to
pay.parentincludes a
person who stands in the place of a parent.relevant
timemeans—(a)generally, when the relevant injury
happened; or(b)ifthesymptomsoftherelevantinjurywerenotimmediatelyapparentwhenithappened,whenthenature and extent of the injury
becomes known.59BCircumstances in which section 59A
damages can not beawarded(1)To
remove any doubt, it is declared that section 59A damagescan
not be awarded if the recipient is not a person mentionedin
section 59A(2)(b).(2)Section 59A damages can not be awarded
for loss if, and tothe extent—(a)theinjuredpersoncanrecoverdamagesforgratuitousservices
mentioned in section 59 for the same injury thatcaused the loss; and(b)the
provision of gratuitous services to the injured personalso
resulted, or would also result, in the recipient beingprovided with the domestic services that the
person haslost the capacity to provide.(3)Section 59Adamagescannotbeawardedif,andtotheextent—Page 60Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 59C](a)thelossresultedfrompersonalinjurytowhichtheMotor Accident Insurance Act 1994applies; andNote—For
when theMotor Accident Insurance Act 1994applies, seesection 5 of
that Act.(b)under section 51 of that Act an
insurer has paid, or isliabletopay,thecostofprovidingrehabilitationservices to the
injured person; and(c)the provision of the rehabilitation
services resulted, orwouldresult,intherecipientbeingprovidedwiththedomesticservicesthattheinjuredpersonhaslostthecapacity to provide.(4)An
injured person, or an injured person’s legal representative,cannotbeawardedsection
59Adamagesforalossiftherecipienthaspreviouslyrecovereddamagesforalosssustained
because of the person’s loss of capacity.59CProvisions for assessment of section 59A
damages(1)Indeciding,forsection 59A,thevalueofanygratuitousdomestic
services that an injured person has lost the capacityto
provide to the recipient, the court must take into account—(a)the extent of the injured person’s
capacity to provide theservices before the relevant time
under section 59A; and(b)the extent to
which provision of the services would, ifnot for the
injury sustained by the injured person, havealsobenefitedpersonsoutsidetheinjuredperson’shousehold; and(c)thevicissitudesorcontingenciesoflifeforwhichallowanceisordinarilymadeintheassessmentofdamages.(2)Section 59Adamagesmustbeassessedontheinjuredperson’s life
expectancy immediately before the relevant timeunder section
59A.Current as at [Not applicable]Page
61
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 59D](3)However,iftheinjuredperson’slifeisshortenedbyanunrelated event, section 59A damages
can not be awarded forany period after the person’s
death.Example of an unrelated event—a
life-limiting illness first suffered after the breach of duty
happened(4)In deciding the amount of section 59A
damages, if any, to beawarded to the injured person for a
loss of capacity mentionedin section 59A, a court—(a)may only award damages for that loss
as provided undersection 59A; and(b)must
not include in any general damages awarded to theinjured person a component that compensates
the personfor the loss of that capacity.59DRestriction on damages if section 59A
damages alreadyrecovered(1)Thissectionappliestoanyone(theclaimant),includingarecipient mentioned in section 59A(1), who
makes a claim forlosssustainedbecauseofpersonalinjurysufferedbyaninjured person.(2)The
claimant can not be awarded damages for a loss sustainedbytheclaimantbecauseoftheinjuredperson’slossofcapacity to provide gratuitous domestic
services if the injuredpersonortheperson’slegalrepresentativehaspreviouslyrecovered
section 59A damages for that loss.60Interest(1)A
court can not order the payment of interest on—(a)an
award for general damages; or(b)an
award of damages for gratuitous services provided toan
injured person.(2)Interestawardedondamagescompensatingpastmonetaryloss—Page
62Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 61](a)must
not be more than interest at the appropriate rate;and(b)must be related
in an appropriate way to the period overwhich the loss
was incurred.(3)Theappropriaterateistheratefor10yearTreasurybondspublishedbytheReserveBankofAustraliaunder‘CapitalMarketYields—GovernmentBonds—Daily—F2’asatthebeginningofthequarterinwhichtheawardofinterestismade.Example of
calculation of interest for this section—Suppose that
past monetary loss consists of medical expenses that havebeen
incurred at a uniform rate over a particular period. The interest
tobe awarded would be calculated under the
following formula—A = am/100 x p x 0.5where—Ais the amount of the award of
interest.ais a percentage rate decided by the
court subject to the limit fixed insubsection
(2).mis the aggregate of the medical
expenses.pis the period over which the medical
expenses have been incurred(expressed in
years).61Assessment by court of injury
scale(1)If general damages are to be awarded
by a court in relation toan injury arising after 1 December
2002, the court must assessan injury scale
value as follows—(a)theinjuredperson’stotalgeneraldamagesmustbeassignedanumericalvalue(injuryscalevalue)onascale running
from 0 to 100;(b)thescalereflects100equalgradationsofgeneraldamages, from a
case in which an injury is not severeenoughtojustifyanyawardofgeneraldamagestoacaseinwhichaninjuryisofthegravestconceivablekind;(c)in assessing the injury scale value,
the court must—Current as at [Not applicable]Page
63
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 62](i)assesstheinjuryscalevalueunderanyrulesprovided under a
regulation; and(ii)haveregardtotheinjuryscalevaluesgiventosimilar injuries in previous
proceedings.(2)If a court assesses an injury scale
value for a particular injuryto be more or
less than any injury scale value prescribed for orattributedtosimilarparticularinjuriesundersubsection
(1)(c), the court must state the factors on which theassessmentisbasedthatjustifytheassessedinjuryscalevalue.62Calculation of general damages(1)For an injury arising after 1 December
2002, general damagesmustbecalculatedbyreferencetothegeneraldamagescalculation provisions applying to the
period within which theinjury arose.(2)In
this section—generaldamagescalculationprovisions,applyingtoaperiod, means the provisions
prescribed for the period under aregulation.Part 4Structured settlements63Definition for pt 4In this
part—structured settlementmeans an
agreement providing for thepayment of all
or part of an award of personal injury damagesintheformofperiodicpaymentsfundedbyanannuityorother agreed means.Page 64Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 3 Assessment of damages for personal
injury[s 64]64Court
required to inform parties of proposed award(1)The
purpose of this section is to enable the court to give theparties to a proceeding a reasonable
opportunity to negotiate astructured settlement.(2)Acourtthatdecidestomakeanawardforfutureloss(notincluding
interest) of more than the amount prescribed under aregulation for this section must first
notify all the parties to theproceeding of
the terms of the award it proposes to make.Note—Under section 75, the Minister must make a
recommendation about theamount to be prescribed.65Court may make consent order for
structured settlementA court may, on the application of the
parties to a claim forpersonal injury damages, make an order
approving of or in theterms of a structured settlement even
though the payment ofdamages is not in the form of a lump
sum award of damages.66Obligation of
legal practitioners to provide adviceA lawyer engaged
by a plaintiff must advise the plaintiff, inwriting,aboutthefollowingiftheplaintiffproposestonegotiateasettlementofaclaimforpersonalinjurydamages—(a)the
availability of structured settlements;(b)thedesirabilityoftheplaintiffobtainingindependentfinancial advice
about structured settlements and lumpsum settlements
of the claim.67Offer of structured settlement—legal
costs(1)TheUniformCivilProcedureRules1999,
chapter 9, part 5extendstoanofferofcompromisebywayofastructuredsettlement on a
claim for personal injury damages.(2)Inthatcase,thecourtistohaveregardtothecosttothedefendant of the
proposed structured settlement as comparedCurrent as at
[Not applicable]Page 65
Civil
Liability Act 2003Chapter 4 Miscellaneous[s 68]to
the lump sum payment of damages when deciding whethera
reasonable offer of compromise has been made.Notauthorised—indicativeonlyChapter 4MiscellaneousPart 1Expressions of regret68Application of pt 1This part
applies only in relation to a claim for personal injurydamages.69Definition for pt 1In this
part—liabilityincludes the
following—(a)fault;(b)negligence.70Purpose of pt 1The purpose of
this part is to allow an individual to expressregretaboutanincidentthatmaygiverisetoanactionforpersonalinjurydamageswithoutbeingconcernedthattheexpression of regret may be construed or
used as an admissionofliabilityonaclaimorinaproceedingbasedonaclaimarising out of the incident.71Meaning ofexpression of
regretAnexpression of regretmade
by an individual in relation toan incident
alleged to give rise to an action for damages is anyoral
or written statement expressing regret for the incident toPage
66Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 4 Miscellaneous[s 72]the
extent that it does not contain an admission of liability onthe
part of the individual or someone else.72Expressions of regret are
inadmissibleAn expression of regret made by an
individual in relation to anincident alleged
to give rise to an action for damages at anytime before a
civil proceeding is started in a court in relationto
the incident is not admissible in the proceeding.Example—Supposeapatientattendedahealthserviceandwasdiagnosedassufferingfromgallstones.Removalofthegallbladderwasrecommendedfortreatmentofthecondition.Theprocedurewasattempted, but there was an adverse
outcome.A health care provider stated that the
provider was sorry that there wasan adverse
outcome.Thestatementisinadmissibleinanyfutureproceedingagainstthehealth care provider in relation to a
personal injury allegedly arising outof the
procedure.Part 1AApologies72AApplication of pt 1A(1)This part applies to civil liability
of any kind.(2)However, this part does not apply to
the following—(a)civil liability that is excluded from
the operation of thispart by section 5;(b)civil liability for defamation;(c)civil liability of a person for an
unlawful intentional actdone by the person with intent to
cause personal injury;(d)civil liability
of a person for an unlawful sexual assaultor other
unlawful sexual misconduct committed by theperson.Current as at [Not applicable]Page
67
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 4 Miscellaneous[s 72B]72BPurpose of pt 1AThepurposeofthispartistoallowapersontomakeanapology about a matter without the apology
being construedor used as an admission of liability in
relation to the matter.72CMeaning ofapologyAnapologyis an expression
of sympathy or regret, or of ageneralsenseofbenevolenceorcompassion,inconnectionwithanymatter,whetherornotitadmitsorimpliesanadmission of fault in relation to the
matter.72DEffect of apology on liability(1)An apology made by or on behalf of a
person in relation toany matter alleged to have been caused
by the person—(a)does not constitute an express or
implied admission offault or liability by the person in
relation to the matter;and(b)is
not relevant to the determination of fault or liability inrelation to matter.(2)Evidence of an apology made by a person is
not admissible inany civil proceeding as evidence of the
fault or liability of theperson in relation to the
matter.Part 2Jury
trials73Exclusion of jury trialA
proceeding in a court based on a claim for personal injurydamages must be decided by the court sitting
without a jury.Page 68Current as at
[Not applicable]
Part
3GeneralCivil Liability
Act 2003Chapter 4 Miscellaneous[s 74]Notauthorised—indicativeonly74Regulation-making power(1)TheGovernorinCouncilmaymakeregulationsunderthisAct.(2)A regulation may do any of the
following—(a)prescribeoffencesforacontraventionofaregulation,and fix a
maximum penalty of not more than 20 penaltyunits for a
contravention;(b)prescribe fees payable under this
Act.75Indexation of particular
amounts(1)The Minister must, on or before 1 July
2011 and on or before1 July in each succeeding year,
recommend to the Governor inCounciltheamountsthataretobeprescribedunderaregulation for or under the following
provisions—(a)section 58(1)(b);(b)section 62(2),definitiongeneraldamagescalculationprovisions;(c)section 64(2).(2)The
amount recommended for or under the provision is to bethe
amount last prescribed under a regulation for or under theprovisionadjustedbythepercentagechangeinaverageweekly earnings
over the 12 months preceding the date of therecommendation
and rounded to the nearest ten dollar.(3)However, if the percentage change in average
weekly earningsover the 12 months preceding the date of the
recommendationwouldreducetheamountprescribedfororundertheprovision or result in no change to the
amount, the Ministerneed not make a recommendation.(4)Ifthepercentagechangeinaverageweeklyearningsmentionedinsubsection (2)isnotavailablefromtheCurrent as at [Not applicable]Page
69
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 5 Transitional and other
provisions[s 76]Australian
Statistician, the Minister must advise the Governorin
Council accordingly.(5)IftheMinisteradvisestheGovernorinCounciloftheunavailability of the percentage
change under subsection (4),the amount
prescribed for or under the provision is the amountdecided by the Governor in Council.(6)A regulation notified after 1 July in
a year and specifying adate that is before the date it is
notified as the date from whichthe amount
prescribed for the provision is to apply has effectfrom
the specified date.(7)Subsection (6)appliesdespitetheStatutoryInstrumentsAct1992, section
34.(8)ThissectiondoesnotlimitthepoweroftheGovernorinCouncil to amend the amount prescribed under
a regulationfor a limit.Chapter 5Transitional and otherprovisionsPart
1Transitional provisions for ActNo.
16 of 200376Prescribed entities for ss 26 and
27(1)Subsection (2)appliesuntilaregulationunderthisActprescribes an entity for section
26(1)(a).(2)The entities mentioned in thePersonal Injuries ProceedingsRegulation2002,section 12,immediatelybeforethecommencement of this section are taken
to be prescribed forsection 26(1)(a) and 27(1).Page
70Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 5 Transitional and other
provisions[s 77]77Jury
trialsDespite the omission of thePersonal Injuries Proceedings Act2002, section 58 by
chapter 6, part 1, of this Act and despitesection 73 of
this Act, a jury trial may be started or continuedif
it could have been started or continued under thePersonalInjuriesProceedingsAct2002,section 77,immediatelybefore the
commencement of this section.Part 2Transitional provisions forJustice and Other LegislationAmendment Act 200479Food
donationsChapter2,part3,division2appliesinrelationtopersonsdonatingfoodincircumstancesmentionedinsection 39(3)onlyafterthecommencementoftheJusticeandOtherLegislation
Amendment Act 2004, section 23.80Injuries under the Workers’ Compensation
andRehabilitation Act 2003Section 5(b) has
effect in relation to an injury as defined undertheWorkers’CompensationandRehabilitationAct2003,other than an injury to which section
34(1)(c) or 35 of that Actapplies, whether the injury happened
before, on or after thecommencement of this section.Current as at [Not applicable]Page
71
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 5 Transitional and other
provisions[s 81]Part 3Transitional provision for CivilLiability (Dust Diseases) andOther Legislation AmendmentAct
200581Awards of damages for loss of
earnings(1)It is declared that section 54, as
amended by theCivil Liability(Dust Diseases)
and Other Legislation Amendment Act 2005,appliesinrelationtoallawardsfordamagesforlossofearnings made on or after the commencement
of this section,whether or not liability for the loss arose
before or after thecommencement.(2)To
remove any doubt, it is declared that section 54 does notapply in relation to an appeal against an
award for damagesfor loss of earnings heard on or after the
commencement if theaward was made before the
commencement.Part 4Declaration
aboutcommencement of chapter 2,part
282Commencement of ch 2, pt 2It
is declared that chapter 2, part 2 commenced and has effect,and
has always had effect, on and from 1 March 2005.Page
72Current as at [Not applicable]
Notauthorised—indicativeonlyPart
5Civil Liability Act 2003Chapter 5
Transitional and other provisions[s 83]Transitional provision forCriminal Code and CivilLiability
Amendment Act 200783Personal injury to which the amended s
5 extendsas a result of the amendment(1)It is declared that section 5, to the
extent it is amended by theamending Act,
has effect to disapply this Act to a decision inrelation to personal injury only if the
personal injury, or anypart of it, is or was caused on or
after 6 November 2006.(2)However,section 5,totheextentitisamendedbytheamending Act, does not have effect to
disapply this Act to adecisioninrelationtopersonalinjuryif,beforethedateofassent of the amending Act—(a)thepartieshaveenteredintoanagreementtopaydamages for the personal injury;
or(b)the trial in relation to the personal
injury has started butfinal relief has not been granted by
the court; or(c)finalreliefinrelationtothepersonalinjuryhasbeengranted by a
court.(3)Section 5, as in force before 6
November 2006, continues toapply in
relation to a decision mentioned in subsection (2).(4)In this section—amending
Actmeans theCriminalCodeandCivilLiabilityAmendment Act 2007.final relief, in relation to
personal injury, means the judgmentor decision for
the civil claim in relation to the personal injury,includingthejudgmentordecisionaboutliabilityonly,whether or not an appeal has been made
against the judgmentor decision.Current as at
[Not applicable]Page 73
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 5 Transitional and other
provisions[s 84]Part 6Transitional provision forJustice and Other LegislationAmendment Act 2008, part 584Persons donating food(1)The reference to personal civil
liability in section 39(2), as inforce before the
commencement of this section, has never hadthe effect of
limiting the protection to individuals.(2)It
is declared that the protection has always been available topersons including individuals and
corporations.Part 7Transitional
provisions for CivilLiability and Other LegislationAmendment Act 201085Retrospective effect of section 59A damages
provisionsfor dust-related claims only(1)The section 59A damages provisions
apply to any dust-relatedclaim,eveniftherelevantbreachofdutyhashappenedorhappens before 1 July 2010.Note—The section 59A
damages provisions commence on 1 July 2010.(2)However, the section 59A damages provisions
do not apply toadust-relatedclaimif,beforethedateofassentoftheamending Act—(a)the
claim was settled; or(b)a proceeding for
the claim was started and—(i)the proceeding
was discontinued; or(ii)judgment was
given in the proceeding.Page 74Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Chapter 5 Transitional and other
provisions[s 86](3)The
section 59A damages provisions apply to another type ofpersonalinjuryclaimonlyiftherelevantbreachofdutyhappens on or
after 1 July 2010.(4)To remove any doubt, it is declared
that in a proceeding for adust-relatedclaimstartedbefore1July2010,section 59Adamagesmaybeclaimedeventhoughthesection 59Adamages
provisions have not yet commenced.(5)In
this section—amending Actmeans theCivil Liability and Other LegislationAmendment Act 2010.dust-related claimmeans a claim
for personal injury damagesresulting from a
dust-related condition.section 59A damages provisionsmeans sections 5, 7, 59, 59Ato59Dand60andschedule
2,definitionsection
59Adamages, as amended or
inserted under the amending Act.Part 8Transitional provision for CivilLiability and Other LegislationAmendment Act 201886Application of ch 2, pt 2AChapter 2, part 2A, other than division 2,
applies in relationtoacauseofactionwhetheritarosebeforeorafterthecommencement.Current as at
[Not applicable]Page 75
Civil
Liability Act 2003Schedule 2Schedule 2DictionaryNotauthorised—indicativeonlysection 8abuse
claim, for chapter 2, part 2A, see section
33A.apology, for chapter 4,
part 1A, see section 72C.apportionable claim,
for chapter 2, part 2, see section 29.a
professionalsee section 20.associated
trust, of an institution, for chapter 2, part 2A,
seesection 33B.associatedwith,aninstitution,forchapter2,part2A,seesection 33C.averageweeklyearnings,forafinancialyear,meanstheamount of Queensland full-time adult persons
ordinary timeearnings declared by the Australian
Statistician in the originalseries of the
statistician’s average weekly earnings publicationmost
recently published before the start of the financial year.child protection ordermeans a child
protection order underthe Child Protection Act 1999.claimmeans a claim,
however described, for damages basedonaliabilityforpersonalinjury,damagetopropertyoreconomicloss,whetherthatliabilityisbasedintortorcontract or in or on another form of action,
including breachof statutory duty and, for a fatal injury,
includes a claim forthe deceased’s dependants or
estate.community organisation, for chapter 2,
part 3, division 2, seesection 38.communitywork,forchapter2,part3,division2,seesection 38.consumer,
for chapter 2, part 2, see section 29.contributorynegligenceseetheLawReformAct1995,section 10.Page 76Current as at [Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Schedule 2court,
for chapter 2, part 2, see section 29.currentofficeholder,forchapter2,part2A,seesection33G(2).damagesincludes any
form of monetary compensation.dangerous
recreational activity, for chapter 2, part 1,
division4, see section 18.defendant,
for chapter 2, part 2, see section 29.dependency
claimmeans a claim in relation to a fatal
injurybrought on behalf of a deceased’s dependants
or estate.dust-related conditionmeans—(a)any of the following diseases—•aluminosis•asbestos induced carcinoma•asbestosis•asbestos related pleural diseases•bagassosis•berylliosis•byssinosis•coal
dust pneumoconiosis•farmers’ lung•hard
metal pneumoconiosis•mesothelioma•silicosis•silicotuberculosis•talcosis; or(b)any
other pathological condition of the lung, pleura orperitoneum that is attributable to
dust.dutymeans—(a)a duty of care in tort; orCurrent as at [Not applicable]Page
77
Notauthorised—indicativeonlyCivil
Liability Act 2003Schedule 2(b)adutyofcareundercontractthatisconcurrentandcoextensive with a duty of care in tort;
or(c)anotherdutyunderstatuteorotherwisethatisconcurrent with a duty of care
mentioned in paragraph(a) or (b).dutyofcaremeansadutytotakereasonablecareortoexercise
reasonable skill (or both duties).expression of
regretsee section 71.fooddonor,forchapter2,part3,division2,seesection 38A(1).function,
for chapter 2, part 3, division 1, see section 34.future lossmeans all or any
of the following—(a)future economic loss;(b)future general expenses;(c)future medical expenses.general damages, for chapter 3,
see section 51.harmmeans harm of
any kind, including the following—(a)personal injury;(b)damage to property;(c)economic loss.head, of
an institution, for chapter 2, part 2A, see section 33A.injury, for chapter 3,
see section 51.injury scale valuesee section
61(1)(a).institution, for chapter 2,
part 2A, see section 33A.insurance agency, for chapter 3,
part 2A, see section 52A.insurance scheme, for chapter 3,
part 2A, see section 52A.intoxicated, in relation to
a person, means that the person isunder the
influence of alcohol or a drug to the extent that theperson’s capacity to exercise proper care
and skill is impaired.liability, for chapter 4,
part 1, see section 69.Page 78Current as at
[Not applicable]
Notauthorised—indicativeonlyCivil
Liability Act 2003Schedule 2loss of
earningsmeans—(a)pasteconomiclossduetolossofearningsorthedeprivation or impairment of earning
capacity; and(b)future economic loss due to loss of
prospective earningsor the deprivation or impairment of
prospective earningcapacity.motor
accident, for chapter 3, part 2A, see section
52A.motorvehiclemeansavehicleforwhichregistrationisrequiredundertheTransportOperations(RoadUseManagement—VehicleRegistration)Regulation2010andincludes a trailer.National Injury Act, for chapter 3,
part 2A, see section 52A.nominee, for an
institution, for chapter 2, part 2A, see section33A.obvious
risk—(a)for chapter 2,
part 1, division 3, see section 13; and(b)chapter 2, part 1, division 4, see section
18.organised, for chapter 2,
part 3, division 2, see section 38.personal
injuryincludes—(a)fatal injury; and(b)pre-natal injury; and(c)psychological or psychiatric injury;
and(d)disease.personalinjurydamagesmeansdamagesthatrelatetothedeath of or
injury to a person.personindistress,forchapter2,part1,division7,seesection 25.possession, for chapter 2,
part 3, division 2, see section 38(1).public or other
authority, for chapter 2, part 3, division 1,
seesection 34.section 59A
damagessee section 59A(1).Current as at
[Not applicable]Page 79
Civil
Liability Act 2003Schedule 2seriouspersonalinjury,forchapter3,part2A,seesection52A.structured settlement, for chapter 3,
part 4, see section 63.volunteer, for chapter 2,
part 3, division 2, see section 38.work,
for chapter 2, part 3, division 2, see section 38.Notauthorised—indicativeonlyPage
80Current as at [Not applicable]