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Act No. 113 of 2004 as made
An Act to amend the Trade Practices Act 1974, and for related purposes
Originating Bill: Trade Practices Amendment (Personal Injuries and Death) Bill (No. 2) 2004
Date of Assent 13 Jul 2004
Table of contents.

 

 

 

 

 

 

Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004

 

No. 113, 2004

 

 

 

 

 

An Act to amend the Trade Practices Act 1974, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendments                                                                                                 3

Trade Practices Act 1974                                                                                           3

 


 

 

Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004

No. 113, 2004

 

 

 

An Act to amend the Trade Practices Act 1974, and for related purposes

[Assented to 13 July 2004]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

  

Trade Practices Act 1974

1  Subsection 4(1)

Insert:

personal injury has (except in section 68B) a meaning affected by section 4KA.

2  After section 4K

Insert:

4KA  Personal injury

                   In this Act (except in section 68B):

personal injury includes:

                     (a)  pre‑natal injury; or

                     (b)  impairment of a person’s physical or mental condition; or

                     (c)  disease;

but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.

3  At the end of subsection 74J(3)

Add:

Note:          Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.

4  At the end of Division 2A of Part V

Add:

74M  The effect of Part VIB on this Division

                   This Division has effect subject to Part VIB.

5  At the end of subsection 75AO(2)

Add:

Note:          Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.

6  At the end of subsection 82(2)

Add:

Note:          Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for damages for death or personal injury.

7  At the end of subsection 87(6)

Add:

Note:          Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.

8  At the end of Part VI

Add:

87CAA  The effect of Part VIB on this Part

                   This Part has effect subject to Part VIB.

9  Before Part VII

Insert:

Part VIBClaims for damages or compensation for death or personal injury

Division 1Introduction

87D  Definitions

                   In this Part, unless the contrary intention appears:

applicable percentage has the meaning given by subsection 87Q(2).

average weekly earnings has the meaning given by section 87V.

capable parent or guardian, of a minor, means a person who is a parent or guardian of the minor, and who is not under a disability.

date of discoverability has the meaning given by section 87G.

gratuitous attendant care services has the meaning given by subsection 87W(5).

incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to a proceeding under this Act because of:

                     (a)  any disease, or any impairment of his or her mental condition; or

                     (b)  restraint of his or her person, lawful or unlawful, including detention or custody under a law of a State or Territory relating to mental health; or

                     (c)  war or warlike operations, or circumstances arising out of war or warlike operations.

index number has the meaning given by section 87N.

long‑stop period has the meaning given by section 87H.

maximum amount of damages for non‑economic loss has the meaning given by section 87M.

minor means a person under 18.

most extreme case has the meaning given by subsection 87P(2).

non‑economic loss means any one or more of the following:

                     (a)  pain and suffering;

                     (b)  loss of amenities of life;

                     (c)  loss of expectation of life;

                     (d)  disfigurement.

personal injury damages means damages or compensation for loss or damage that is, or results from, the death of or personal injury to a person.

plaintiff, in relation to a proceeding, means:

                     (a)  if the proceeding is a proceeding that the Commission commences under section 75AQ or paragraph 87(1A)(b)—a person on whose behalf the Commission commences the proceeding; or

                     (b)  in any other case—the person by whom the proceeding is brought (however described).

proceeding to which this Part applies means a proceeding referred to in section 87E.

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

87E  Proceedings to which this Part applies

             (1)  This Part applies to proceedings taken under this Act:

                     (a)  that relate to Part IVA, to Division 1A or 2A of Part V or to Part VA; and

                     (b)  in which the plaintiff is seeking an award of personal injury damages; and

                     (c)  that are not proceedings in respect of the death of or personal injury to a person resulting from smoking or other use of tobacco products.

             (2)  However, for the purposes of Divisions 2 and 7, paragraph (1)(c) does not apply.

Division 2Limitation periods

87F  Basic rule

             (1)  A court must not award personal injury damages in a proceeding to which this Part applies if the proceeding was commenced:

                     (a)  after the end of the period of 3 years after the date of discoverability for the death or injury to which the personal injury damages would relate; or

                     (b)  after the end of the long‑stop period for that death or injury.

          (1A)  However, paragraph (1)(b) does not apply in relation to a proceeding in respect of the death of or personal injury to a person resulting from smoking or other use of tobacco products.

             (2)  This diagram shows when this Division prevents an award of personal injury damages.

 

87G  Date of discoverability

Definition

             (1)  The date of discoverability for the death or injury is the first date when the plaintiff in the proceeding knows or ought to know each of the following:

                     (a)  that the death or personal injury has occurred;

                     (b)  that the death or personal injury was attributable to a contravention of this Act;

                     (c)  that in the case of a personal injury—the injury was significant enough to justify bringing an action.

Constructive knowledge

             (2)  For the purposes of subsection (1), the plaintiff ought to know a fact if the plaintiff would have ascertained the fact had the plaintiff taken all reasonable steps before the date in question to ascertain the fact.

Use of the plaintiff’s conduct and statements

             (3)  In determining what the plaintiff knows or ought to have known, the court may have regard to the plaintiff’s conduct, and to the plaintiff’s oral or written statements.

Minors

             (4)  If the plaintiff is a minor, facts that a capable parent or guardian of the plaintiff knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know.

Incapacitated persons

             (5)  If:

                     (a)  the plaintiff is an incapacitated person; and

                     (b)  there is a guardian of the plaintiff, or other person to manage all or part of the plaintiff’s estate, under a law of a State or Territory relating to the protection of incapacitated persons;

facts that the guardian or other person knows or ought to know are taken for the purposes of subsection (1) to be facts that the plaintiff knows or ought to know.

Proceedings by personal representatives

             (6)  Despite subsection (1), if the plaintiff brings the proceeding in the capacity of the personal representative of a deceased person, the date of discoverability for the death or injury is the earliest of:

                     (a)  if, had the deceased person commenced a proceeding, in relation to the contravention to which the death or injury relates, before his or her death, the date of discoverability under subsection (1) would have occurred more than 3 years before the death—that date; or

                     (b)  if, at the time of the plaintiff’s appointment as personal representative, the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c)—the date of the appointment; or

                     (c)  if the first time at which the plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a), (b) and (c) was after the date of appointment—the date of that first time.

87H  Long‑stop period

             (1)  The long‑stop period for the death or injury of a person is:

                     (a)  the period of 12 years following the act or omission alleged to have caused the death or injury; or

                     (b)  that period as extended by the court.

             (2)  The court must not extend the period by more than 3 years beyond the date of discoverability for the death or injury.

             (3)  In considering whether to extend the period, the court must have regard to the justice of the case, and, in particular, must have regard to:

                     (a)  whether the passage of time has prejudiced a fair trial; and

                     (b)  the nature and extent of the person’s loss or damage; and

                     (c)  the nature of the defendant’s conduct alleged to have caused the death or injury; and

                     (d)  the nature of the defendant’s conduct since the alleged act or omission.

87J  The effect of minority or incapacity

                   In working out whether the period of 3 years after the date of discoverability, or the long‑stop period, has expired, disregard any period during which the plaintiff has been:

                     (a)  a minor who is not in the custody of a capable parent or guardian; or

                     (b)  an incapacitated person in respect of whom there is no guardian, and no other person to manage all or part of the person’s estate, under a law of a State or Territory relating to the protection of incapacitated persons.

87K  The effect of close relationships

             (1)  If:

                     (a)  a cause of action to which the proceeding relates is founded on the death or injury to a person (the victim) who was a minor at the time of the act or omission alleged to have caused the death or injury; and

                     (b)  the proceeding is taken against a person who was at that time:

                              (i)  a parent or guardian of the victim; or

                             (ii)  a person in a close relationship with a parent or guardian of the victim;

in working out whether the period of 3 years after the date of discoverability, or the long‑stop period, has expired, disregard any period:

                     (c)  before the victim turns 25; or

                     (d)  if the victim dies before turning 25—before the victim’s death.

             (2)  For the purposes of subparagraph (1)(b)(ii), a person is taken to be in a close relationship with a parent or guardian of the victim if the person’s relationship with the parent or guardian is such that:

                     (a)  the person might influence the parent or guardian not to bring a claim on behalf of the victim against the person; or

                     (b)  the victim might be unwilling to disclose to the parent or guardian the acts, omissions or events in respect of which the cause of action is founded.

Division 3Limits on personal injury damages for non‑economic loss

87L  Limits on damages for non‑economic loss

                   A court must not, in a proceeding to which this Part applies, award as personal injury damages for non‑economic loss an amount that exceeds the amount (if any) permitted under this Division.

87M  Maximum amount of damages for non‑economic loss

             (1)  The maximum amount of damages for non‑economic loss is:

                     (a)  during the year in which this Part commences—$250,000; or

                     (b)  during a later year—the amount worked out (to the nearest multiple of $10) as follows:

                            where:

                            current September CPI number is the index number for the quarter ending on 30 September in the year immediately preceding that later year.

                            previous maximum amount is the maximum amount of damages for non‑economic loss during the year immediately preceding that later year.

                            previous September CPI number is the index number for the quarter ending on the 30 September immediately preceding the 30 September referred to in the definition of current September CPI number.

             (2)  If an amount worked out under paragraph (1)(b) is a multiple of $5 (but not a multiple of $10), round the amount up to the nearest multiple of $10.

             (3)  This section does not affect the operation of section 86AA.

87N  Index numbers

             (1)  The index number for a quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.

             (2)  Subject to subsection (3), if, at any time before or after the commencement of this Act:

                     (a)  the Australian Statistician has published or publishes an index number in respect of a quarter; and

                     (b)  that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;

disregard the publication of the later index number for the purposes of this section.

             (3)  If, at any time, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to index numbers published in terms of the new reference base.

             (4)  In this section:

Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.

87P  Most extreme cases

             (1)  The court must not award as personal injury damages for non‑economic loss the maximum amount of damages for non‑economic loss except in a most extreme case.

             (2)  A most extreme case is a case in which the plaintiff suffers non‑economic loss of the gravest conceivable kind.

87Q  Cases of 33% or more (but not 100%) of a most extreme case

             (1)  If the non‑economic loss the plaintiff suffers is at least 33%, but less than 100%, of a most extreme case, the court must not award as personal injury damages for non‑economic loss an amount that exceeds the applicable percentage of the maximum amount of damages for non‑economic loss.

             (2)  The applicable percentage is the extent of the non‑economic loss the plaintiff suffers, expressed as a percentage of a most extreme case.

87R  Cases of 15% or more (but less than 33%) of a most extreme case

                   If the non‑economic loss the plaintiff suffers is at least 15%, but less than 33%, of a most extreme case, the court must not award as personal injury damages for non‑economic loss an amount that exceeds the amount set out in the following table:

 

Cases of 15% or more (but less than 33%) of a most extreme case

Item

Severity of the non‑economic loss (as a proportion of a most extreme case)

Damages for non‑economic loss (as a proportion of the maximum amount of damages for non‑economic loss)

1

15%

1%

2

16%

1.5%

3

17%

2%

4

18%

2.5%

5

19%

3%

6

20%

3.5%

7

21%

4%

8

22%

4.5%

9

23%

5%

10

24%

5.5%

11

25%

6.5%

12

26%

8%

13

27%

10%

14

28%

14%

15

29%

18%

16

30%

23%

17

31%

26%

18

32%

30%

87S  Cases of less than 15% of a most extreme case

                   If the non‑economic loss the plaintiff suffers is less than 15% of a most extreme case, the court must not award personal injury damages for non‑economic loss.

87T  Referring to earlier decisions on non‑economic loss

             (1)  In determining personal injury damages for non‑economic loss, the court may refer to earlier decisions of the court or of other courts for the purpose of establishing the appropriate award in the proceeding.

             (2)  For that purpose, the parties to the proceeding or their counsel may bring the court’s attention to awards of personal injury damages for non‑economic loss in those earlier decisions.

             (3)  This section does not affect the rules for determination of other damages or compensation.

Division 4Limits on personal injury damages for loss of earning capacity

87U  Personal injury damages for loss of earning capacity

                   In determining, in a proceeding to which this Part applies, personal injury damages for:

                     (a)  past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; or

                     (b)  future economic loss due to the deprivation or impairment of earning capacity; or

                     (c)  the loss of expectation of financial support;

a court must disregard the amount by which the plaintiff’s gross weekly earnings during any quarter would (but for the personal injury or death in question) have exceeded:

                     (d)  if, at the time the award was made, the amount of average weekly earnings for the quarter was ascertainable—an amount that is twice the amount of average weekly earnings for the quarter; or

                     (e)  if:

                              (i)  at the time the award was made, the amount of average weekly earnings for the quarter was not ascertainable; or

                             (ii)  the award was made during, or before the start of, the quarter;

                            an amount that is twice the amount of average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable.

87V  Average weekly earnings

             (1)  Average weekly earnings, for a quarter, means the amount:

                     (a)  published by the Australian Statistician as the average weekly earnings for all employees (total earnings, seasonally adjusted) for the reference period in that quarter; or

                     (b)  if the Australian Statistician fails or ceases to publish the amount referred to in paragraph (a)—the amount determined in the manner specified in the regulations.

             (2)  Regulations made for the purposes of paragraph (1)(b) may specify matters by reference to which an amount is to be determined.

             (3)  In this section:

reference period, in a quarter, is the period described by the Australian Statistician as the pay period ending on or before a specified day that is the third Friday of the middle month of that quarter.

Division 5Limits on personal injury damages for gratuitous attendant care services

87W  Personal injury damages for gratuitous attendant care services for plaintiff

             (1)  A court must not, in a proceeding to which this Part applies, award personal injury damages for gratuitous attendant care services for the plaintiff, except in accordance with this section.

             (2)  The court must be satisfied that:

                     (a)  there is (or was) a reasonable need for the services to be provided; and

                     (b)  the need has arisen (or arose) solely because of personal injury to which the personal injury damages relate; and

                     (c)  the services would not be (or would not have been) provided to the plaintiff but for the injury; and

                     (d)  the services are provided (or are to be provided) for at least 6 hours per week; and

                     (e)  the services are provided (or are to be provided) over a period of at least 6 months.

             (3)  If the services were provided during a quarter for which, at the time the award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services:

                     (a)  if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for that quarter; or

                     (b)  if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.

             (4)  If the services:

                     (a)  were provided during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or

                     (b)  are to be provided after the time the award was made;

the court must not award as personal injury damages for the services:

                     (c)  if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or

                     (d)  if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.

             (5)  Gratuitous attendant care services are services that one person provides to another person:

                     (a)  that:

                              (i)  are of a domestic nature; or

                             (ii)  relate to nursing; or

                            (iii)  aim to alleviate the consequences of a personal injury; and

                     (b)  for which the other person has not paid or is not liable to pay.

87X  Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services

             (1)  A court must not, in a proceeding to which this Part applies, award personal injury damages for loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons, except in accordance with this section.

             (2)  The court must be satisfied that:

                     (a)  prior to his or her loss of capacity to provide the services, the plaintiff had provided the services:

                              (i)  for at least 6 hours per week; and

                             (ii)  over a period of at least 6 months; and

                     (b)  the other person would have been entitled, if the plaintiff had died as a result of the contravention of this Act to which the award relates, to recover damages under a law of a State or Territory for loss of the plaintiff’s services.

             (3)  If the plaintiff would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was ascertainable, the court must not award as personal injury damages for the services:

                     (a)  if the services would have been provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for that quarter; and

                     (b)  if the services would have been provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.

             (4)  If the plaintiff:

                     (a)  would have provided the services during a quarter for which, at the time the award was made, the amount of average weekly earnings was not ascertainable; or

                     (b)  would have provided the services after the time the award was made;

the court must not award as personal injury damages for the services:

                     (c)  if the services were provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or

                     (d)  if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.

Division 6Other limits on personal injury damages

87Y  Damages for future economic loss—discount rate

             (1)  If an award of personal injury damages in a proceeding to which this Part applies is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by applying:

                     (a)  a discount rate of the percentage prescribed by the regulations; or

                     (b)  if no percentage is prescribed—a discount rate of 5%.

             (2)  A regulation made for the purposes of paragraph (1)(a) does not take effect before the end of the period of 6 months starting:

                     (a)  if the regulation is laid before each House of the Parliament under paragraph 48(1)(c) of the Acts Interpretation Act 1901 on the same day—starting on that day; or

                     (b)  if it is laid before each House of the Parliament under that paragraph on different days—starting on the later of those days.

             (3)  Except as provided by this section, this section does not affect any other law relating to the discounting of sums awarded as damages or compensation.

87Z  Damages for loss of superannuation entitlements

                   A court must not, in a proceeding to which this Part applies, award personal injury damages for economic loss due to the loss of employer superannuation contributions an amount that exceeds the following amount:

where:

damages for earnings loss are the personal injury damages payable (in accordance with this Part) for:

                     (a)  any past economic loss due to loss of earnings, or the deprivation or impairment of earning capacity, on which the entitlement to those contributions is based; and

                     (b)  any future economic loss due to the deprivation or impairment of earning capacity on which the entitlement to those contributions would be based.

superannuation percentage is the highest employer’s charge percentage for a quarter under section 19 of the Superannuation Guarantee (Administration) Act 1992.

87ZA  Interest on damages

             (1)  A court must not, in a proceeding to which this Part applies, order the payment of interest on personal injury damages for:

                     (a)  non‑economic loss; or

                     (b)  gratuitous attendant care services for the plaintiff; or

                     (c)  loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons.

             (2)  If, in a proceeding to which this Part applies, a court is satisfied that interest is payable on personal injury damages of another kind, the rate of interest to be used in working out the interest is:

                     (a)  the rate of interest prescribed by the regulations; or

                     (b)  if no rate is prescribed—the 10‑year benchmark bond rate on the day on which the court determines the personal injury damages.

             (3)  This section does not affect the payment of interest on a debt under a judgment or order of a court.

             (4)  In this section:

10‑year benchmark bond rate, on a day, means:

                     (a)  if the day occurs on or after 1 March in a particular year and before 1 September in that year—the Commonwealth Government 10‑year benchmark bond rate:

                              (i)  as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described); and

                             (ii)  applying on the first business day of January in that year; or

                     (b)  otherwise—the Commonwealth Government 10‑year benchmark bond rate, as so published, applying on the first business day of July in the preceding year.

business day means a day other than a Saturday, a Sunday or a public or bank holiday in any State, the Australian Capital Territory or the Northern Territory.

87ZB  Exemplary and aggravated damages

             (1)  A court must not, in a proceeding to which this Part applies, award exemplary damages or aggravated damages in respect of death or personal injury.

             (2)  This section does not affect whether a court has power to award exemplary damages or aggravated damages:

                     (a)  otherwise than in respect of death or personal injury; or

                     (b)  in a proceeding other than a proceeding to which this Part applies.

Division 7Structured settlements

87ZC  Court may make orders under section 87 for structured settlements

             (1)  In a proceeding to which this Part applies, a court may, on the application of the parties, make an order under section 87 approving a structured settlement, or the terms of a structured settlement, even though the payment of damages is not in the form of a lump sum award of damages.

             (2)  This section does not limit the powers of a court to make an order under section 87 in a proceeding that is not a proceeding to which this Part applies.

             (3)  In this section:

structured settlement means an agreement that provides for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means.

10  Section 87D

Renumber as section 87ZD.

11  Application

The amendments made by this Schedule (other than item 10) apply to contraventions of Part IVA, of Division 1A or 2A of Part V or of Part VA of the Trade Practices Act 1974 that occur after this Schedule commences.


 

 

[Minister’s second reading speech made in—

House of Representatives on 19 February 2004

Senate on 29 March 2004]

(23/04)