Robertson, Thomas

From:
Sent:
To:
Subject:
Attachments:

Weddell, Mary
Wednesday, 11 June 2014 2:55 PM
Doherty, Edward; Stott, Celia; Walker, Deanne; Robertson, Thomas; McCarthy,
Siobhan
FW: re
Draft IndividualLearningPlan2014 Emma Whitting.docx

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Thanks

ThefinalversionwillbeintheSSfolderearlynextweek.

From: Weddell, Mary

Sent: Thursday, 22 May 2014 1:08 PM
To: Doherty, Edward; Stott, Celia; Walker, Deanne; Robertson, Thomas; McCarthy, Siobhan
Cc: Budd, Jenny; Dawson, Caroline; Wiild; Delisia; Phillipps, Catherine
Subject: re
Importance: High

YesterdayweheldanAppraisalofNeedmeetingwith
sparentsandamoderatorfromtheDepartment.This
meansthat
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schedule.

willbeaffordedextratimeandsmallgrouptestingfacilities
Duetounderlyinganxietyanddifficultiesprocessinginformation,Emmaneeds:scaffoldedinstructions;
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Teachersneedtorecogniseanddiffuseanypotentialsituationsforconflict.Strategiestoinclude:calmone
toonediscussionawayfromgroup;suggestionfortimeout;enlistsupportofCounsellororSupport
Teacher;(PleasenoteaRiskManagementPlanwillbeformulatedshortlybuttheviewofthepanel
yesterdaywasthiswasalowriskunlikelyscenario)
PleasecontactmeorJennyifyouhaveanyquestions.FeedbackwouldbeappreciatedtheILPwillbe
finalisedinthenextcoupleofweeks.

Mary Weddell
Student Support (Upstairs D Block: D17)
6205 6985
0404841069

Robertson, Thomas
From:
Sent:
To:
Cc:
Subject:

Weddell, Mary
Monday, 15 September 2014 7:49 AM
Knowles, Joan; Walding, Judith; Robertson, Thomas; Ranyard, Peter; Woodhouse,
Mary
Budd, Jenny
re

Importance:

High

Hiall,
willbeinyourclassthissession.ShehasanILPandthefollowingstrategiesarerecommendedto
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anxiousifuncertainaboutwhattodo)
Providehardcopiesofimportantinformation
Ifdoingtasksthatrequiretechnicalprocessesofferadditionalsupportandtime.
Negotiateextensionsasnecessary
Smallgrouptesting
Thanks

Mary Weddell
Student Support (Upstairs D Block: D17)
6205 6985
0404841069

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Michael, defendant
Lucy, defendant
Jeremy Gruzman and Martin Walsh,
barristers for the taxi company
Greg Thomas, solicitor for the insurance company
Graham Roberts, Assessor

This episode involves two motor accident cases being heard in the Small Claims Division of the local
court at the Downing Centre in Sydney. Car accidents are a major cause of disputes in the local court
and the accidents themselves usually constitute a tort (a civil law wrong that unfairly caused someone
else to suffer loss or harm).
The Small Claims Division prides itself on providing a smoother ride for people without a lawyer. But
when these people are up against the legal teams of large companies... it's more like a crash 'n' bash.
Michael is an antiques retailer who collided with a taxi four years ago while reverse parking his car.
The taxi cab company claims $860 in damages. Michel asserts the damage was only a minor paint
blemish and that the claim is excessive. He is prepared to offer $250.
Michael feels strongly that the cab company is purposely delaying proceedings in an attempt to get
him to settle on their terms. He calls it an 'abuse of process' and is determined to fight this to the end.
Its not the money, he says, it's the principle of standing up against the "big end of town". But does
principle have a price?
Our other defendant is Lucy. She was involved in a car accident in Marrickville when she was turning
right against oncoming traffic. Lucy didn't have third party property insurance and can't afford a
lawyer. She's up against Greg Thomas, the solicitor for the other driver's insurance company.
At the pre-trial review Lucy puts forward what she feels is a fair approach to settling the matter but is
soon disappointed to learn of the gulf between what she feels is fair and what the insurance company
wants. The risk for her is that if she takes the matter to hearing and loses she will have to pay the
whole amount plus legal costs.
Lucy says the accident was not all her fault and wants to put in a cross claim for damage to her car
but Greg Thomas plays it tough and says she is out of time.
Settlement negotiations become very stressful for Lucy. She feels they are asking too much and she
can't afford to pay it anyway, and yet worries that if she goes to a full hearing she may end up with an
even greater payout. Which course of action will she choose?

The Local Court of New South Wales is by far the largest in the State of NSW and deals with the
majority of litigated claims. It is the equivalent of the ACT Magistrates Court in the ACT, but in this
episode we focus on the Local Courts Small Claims Tribunal, which is a division of the court very
similar to the ACT Civil and Administrative Tribunal. At present the jurisdictional limit of the Local
Court is $40,000. The Small Claims Tribunal is designed specifically to deal with unrepresented
litigants and small claims at or under $5,000.
The cases of Michael the Furniture Retailer and Lucy the Account Manager demonstrate a number of
the features of Local (or Magistrates in the ACT) Court litigation.

Firstly, the vast majority of litigated civil cases settle. This is usually because the parties prefer the
certainty of a negotiated result to the uncertainty and potential extra legal costs of a litigated result. It
is usually in the interests of the parties to try and negotiate early - it saves time and effort. However,
as the Magistrate pointed out to Lucy, a significant number of cases still settle "on the steps of the
Court".
Secondly, it is important to recognise that even for the self-represented litigant there are significant
costs involved in the court process. When we were first introduced to Michael at the pre-trial review
he has already attended at Court on 4 occasions previously. By the conclusion of his case Michael
has been to the Court House at least 7 times. Michael explains that he is defending the case against
him on the principle that the plaintiff is engaged in an "abuse of process". Although Michael ultimately
settles by agreeing to pay the plaintiff $250, the case has cost him considerably more in his own time
and effort. Michael's "principle" has potentially cost him more than the $800 the plaintiff was initially
seeking.
For Lucy, there are clearly other costs of litigation. Above and beyond any moneys paid in the
settlement agreement and her time off work to attend to the case there is also an emotional cost.
Litigation is a stressful experience, especially for the unrepresented and inexperienced litigant.
Thirdly, even in the consumer friendly Small Claims Division of the Local Court, justice does not move
quickly. In American television dramas you see the lawyers gathered around the conference table in
the morning discussing a case. The same afternoon they are in Court. What the script writers leave
out is the 12 month preparation period and/or delay between the first and last step.
Michael was still fighting his case years after the accident concerned. Lucy's case gets to hearing at
which point she is the one seeking an adjournment in order to put on a cross claim. When settled, her
case is still not finally ready to be heard.
Fourthly, unrepresented litigants do require considerable extra assistance from the Court. Michael
utilises the advisory service provided by the Chamber Magistrate. What we don't see are the queues
of people waiting to seek that advice. Similarly, when Michael and Lucy appear before the Magistrate
it is in a quiet and unhurried Court environment. The reality is that Local Court magistrates are
burdened with long lists of cases to deal with each day. The Court will not always have unlimited time
to assist the unrepresented litigant to explore the issues and their rights.
Finally, these cases illustrate that there are benefits to be had from obtaining legal advice. One of the
biggest challenges for any litigant is to remain objective in evaluating their prospects of success as
against the risks of failure and the possible financial consequences. When consulted for advice the
Chamber Magistrate was advising Michael that in a legal sense there had been no "abuse of
process". It became difficult for Michael to maintain his argument that there had been an abuse of
process when he conceded at the outset of the hearing that he had been partly at fault in reversing
into the taxi. It was not clear that Michael's fight was based on sound legal (as distinct from personal)
experience.
Similarly, Lucy maintained that she ought not to have to pay for the full repairs of the other vehicle on
the basis that the accident was "not entirely my fault". Legal advice may have helped Lucy to a clearer
understanding that if she were partly at fault she would be found liable to pay at least some damages.
Lucy certainly seemed at a disadvantage when trying to engage in settlement negotiations with an
experienced legal practitioner representing the insurance company.
Utilising the service of a legal practitioner can be expensive. However, a lawyer can also provide
advice that saves time, money and costs.
Ultimately, both cases involved the attempted reconciliation of a civil dispute. In each claim the
plaintiff wanted money and the defendant was resisting having to pay. The question to be considered
by any litigant is how to obtain the best outcome at the lowest cost.

Civil Proceedings in ACT

There are three bodies in the ACT that deal with civil law. These are the Australian Capital Territory Civil
and Administrative Tribunal (ACAT), the Magistrates Court, and the Supreme Court. Each have specific
jurisdictional requirements, and can only determine matters that fall within their jurisdiction. The
Magistrates Court will only hear claims, or disputes, with a value of up to $250,000. However, if a matter
is less than $10,000 it must be heard in the ACAT. The Supreme Court can determine any matter, but is
generally restricted to matters over $250,000, and all deceased estate matters. Many matters are
resolved through mediation, or negotiation without the need to initiate court or tribunal proceedings.
Proceedings commenced through ACAT
Not only does ACAT deal with all civil disputes of less than $10,000, it is also hears matters relating to
residential tenancy disputes, retirement villages, energy and water, mental health, and guardianship. In
regard to civil disputes there are several different application types which can be heard by ACAT. These
include contract, damages, debt, goods, trespass, nuisance, debt declaration, and common boundary
disputes. Once you have filed the appropriate application then ACAT will serve it on the Respondent (you
become known as the Applicant). The Respondent will then have 21 days to file a response. All matters
before ACAT will involve the parties participating in a case conference in an attempt to settle the matter
prior to it being set down for hearing. If you believe an error was made by the Tribunal in the decision
handed down then you can lodge an appeal within 28 days in the Appeals Tribunal. Either you, or the
tribunal, can elect to have the matter heard in the Supreme Court if the appeal raises an issue of law, or if
the application raises an issue of public importance.
Proceedings commenced through the courts
Whether you are commencing action in the Magistrates Court, or Supreme Court, to initiate proceedings
you must file an Originating Claim, and Statement of Claim.
Your Originating Claim is like an application form and contains sections concerning:

The nature (or type) of claim youre making (e.g. debt, injury, death)
The relief claimed (e.g. general, special, exemplary and/or aggravated damages)
Whether a summary judgment is applied for
What the your name and details are (incl. company name if you [the Plaintiff] are a company)
Notice and information to be provided to the Defendant
Endorsement from a solicitor to make sure that the claim has a reasonable prospect of success.

Your Statement of Claim contains the particulars of your claim (the circumstances involved; the time, date
and place that it occurred; your reason for making the claim; how much you plan on claiming, etc), and
there are different Statements of Claims depending on the type of matter that youre bringing.
Once the Originating Claim and Statement of Claim have been filed in either Court, they must be served
on the Respondent. The Respondent will then have 28 days to file a defence. If they fail to do so you can
apply for a default judgment. If a defence is filed within the 28 days, both parties must file a Certificate of
Readiness for trial (signed by their solicitors). The matter will then be set down for a pre hearing
conference. At the pre hearing conference the registrar will attempt to settle the matter by reviewing the
facts, in the hope of narrowing down the issues in dispute. If there are still issues in dispute the matter will
be set down for a hearing. At the conclusion of the hearing a judgement will be made.
If either party wishes to appeal the judgment, all appeals must be filed with the ACT Court of Appeal. If an
Appeal is unsuccessful, a costs order may be made against the Appellant. If a matter remains unresolved
after being heard by the ACT Court of Appeal, and a matter of law or procedure is still in dispute, an
appeal can be made to the Federal Court (then the Full Federal Court, then the High Court)

School liable for boy's rock-fight

injury
By Jonathan Pearlman
Source: Sydney Morning Herald: May 23 2002

A boy injured in a rock fight while wagging school has been awarded $221,079 after
a judge ruled that the school had failed to adequately supervise students during
short recesses.
Judge Robert Sorby, of the District Court, said Epping Boys High School owed Vivian
Ndaba a duty of care even though he and nine other students were having the rock
fight nearly a kilometre from the school.
The judgement follows an announcement by the Premier, Bob Carr, earlier this
month of safeguards for schools under proposed tort law reforms.
On December 10, 1996, Mr Ndaba, then aged 14, was one of 10 students from years
7 and 8 who left the school grounds during a 10-minute recess.
Deciding to skip the first class after recess, the boys walked to a former construction
site where they divided into two teams of five for a "rock war".

They then threw stones and dirt at each other, aiming to avoid the genitals and
head.
Mr Ndaba was hit on the forehead with a rock and taken to Royal North Shore
Hospital where he underwent surgery and had plates and screws inserted.
In his decision last Tuesday, Judge Sorby said Mr Ndaba and four friends had left
the school "without any realistic prospect of detection" and had had "no fear of
retribution by the school".
He said the injury would probably have been prevented if the school had ensured
that teachers were visible in the grounds during recesses and that rolls were marked
and absentees punished.
"A group of boys unsupervised are likely to get up to mischief of one sort or another,
including mischief that might result in injury," Judge Sorby said.
He found that Mr Ndaba's injury had caused a permanent sleeping disorder which
reduced his earning capacity. There was also scarring, which could be embarrassing
to a young person.

Mr Ndaba, now 19, repeated year 9 in 1998. He left school after doing his School
Certificate and has been unemployed since.
Damages were set at $315,827, but reduced to $221,079 after the judge assessed
Mr Ndaba's contributory negligence at 30 per cent.
His mother, Anne Ndaba, told the Herald yesterday: "There has been no supervision
at that recess since 1996 and schools have to provide supervision during breaks.
Because of that, Viv has been left with a lifelong disability."
Mr Ndaba's solicitor, John McGuire, said the school's negligence resulted from its
failure to abide by Department of Education guidelines that all breaks be supervised.
"At Epping they have a system of four 75-minute periods," he said. "In between the
second and third period, there is a 10-minute break.
"The school submitted it didn't need to supervise that shorter break. But the judge
found there was no distinction between the need to supervise the shorter break and
other breaks such as lunch and morning tea."
A spokeswoman for Mr Carr said planned changes to negligence laws would
strengthen the ability of schools to defend against public liability claims. "We will be
strengthening the defences for schools for the sorts of cases that involve the issue of
what is reasonable supervision."

Injured cyclist proves Council negligent

CCH Law Chat, October 23 2013
By Anne Wardell

A competitive cyclist w ho had his leg amputated below the knee after colliding w ith a boom gate successfully
sued Rockdale City Council (the Council) in negligence after proving that its omissions constituted failures by it to
exercise reasonable care to avoid foreseeable injury to cyclists.

Background to the case

The plaintiff, Mr Simmons, had been a competitive cyclist since 1997 participating in National and State
Championships and team pursuits. On the day of the accident the plaintiff w as on an early morning training ride
having left home around 5.30 am. He w as cycling a route he had cycled literally hundreds of times over the past
decade. Approximately 45 minutes into the planned tw o-hour ride he w as riding along Riverside Drive in front of
St George Sailing Club (the Club) in a direction that w as opposite to the directional arrow s painted on the
pavement. He proceeded over tw o speed bumps before colliding w ith the boom gate. The carpark adjacent to the
Club w as enclosed by the Council by the construction of the boom gate in 2004 in order to restrict access
follow ing the problem of hooning that had arisen in the carpark at night. The plaintiff had no time to react and
w as seriously injured w hen his left leg below the knee, took the full force of the impact.

The plaintiffs case

The plaintiff brought proceedings against the Council and the Club in negligence. He submitted that he belonged
to a class of persons that should have been in the contemplation of the Council and the Club, being cyclists w ho
early in the day w ere know n to use the boom gate entry on a regular basis. The risk of striking a barrier at speed
w as not an insignificant one, that could foreseeably occasion serious harm and required the adoption of
appropriate safeguards. The risk of serious injury required risk management by a system that coordinated and
regulated the boom gate operation. A proper system of operation w ould ensure that the boom gate w ould have
been opened by 5.00 am. The plaintiff argued the closed boom gate could not be considered an obvious risk but
w as more of perceptual trap as all the plaintiff saw as he approached the closed gate w as a horizontal w hite line
w hich provided no clue that the gate w as closed rather than open.

There had been at least three know n incidents occurring w hen the boom gate had been left, early in the morning,
in the closed position involving cycle accidents w hen experienced cyclists, like the plaintiff, had been injured. One
such incident occurred in 2006, one in January 2007 and the plaintiffs in April 2007.

The Councils case

The Council submitted that the plaintiff collided w ith the boom gate simply because he w as not keeping a proper
lookout w hich rendered him 100% responsible for his ow n injury. Part of the redesign and use of the carpark w as
for the Club to close the gate of an evening and to open it in their discretion. It submitted that the system for the

control of the boom gate, being that the Clubs cleaner w ould open the gate betw een 5 am and 6 am, w as both
reasonable and practicable. The Council also contended that the incident w as the result of an obvious risk of
the dangerous recreational activity of cycling, hence no liability for injury arose. Cycling through the boom gate
access w ith no entry signs in place, and against directional arrow s at speed, carried a significant risk of
physical harm and w as therefore a dangerous recreational activity.

Suprem e Court of New South Wales decision

Liability of the Council

In the courts view the Council w as under a duty of care to the regular users of Riverside Drive, including cyclists.
The modifications to the carpark that included the boom gate, w ere consequent upon a decision made by Council
in 2004. Follow ing from that modification, the Councils duty w as to take reasonably practical steps to ensure that
the boom gate once constructed w ould not operate as or become a hazard or a trap to cyclists. The failure by the
Council to take appropriate action to protect cyclists by:

(i) putting in place a system that ensured the gate w ould be opened at a specified time each day

(ii) taking steps, as it did after the plaintiffs accident, to reduce the risk of accident by increasing the
visibility of the boom gate, and

(iii) providing a safe alternative access to the street

constituted failures by it to exercise reasonable care to avoid foreseeable injury to cyclists. The Councils failures
materially contributed to the plaintiffs accident.

Colliding w ith the boom gate w as not an obvious risk of cycling and nor w as the plaintiff engaged in a dangerous
recreational activity. The directional arrow s on the road w ere to direct motor vehicle traffic. The Council, having
taken the decision to install the boom gate and leave its daily operation in the hands of the Club under the loose
arrangement, remained under a duty to ensure that the system it established continued to provide, on a daily
basis, for the safe passage of cyclists w ho, it w as know n, w ere frequent users of the cycle route.

Liability of the Club

The plaintiff had not established that the Club failed to exercise reasonable care. The Club w as not the body
vested w ith contractual responsibility in relation to risk management. The pow er or authority to investigate lay
w ith the Council to manage its ow n structures and amenities that w ere the subject of public use. The informal
arrangement betw een the Council and the Club did not require the Club to put in place a back-up system that
w ould have ensured that someone other than the cleaner opened the gate if the cleaner w as likely to be delayed
or w as unable to attend to open the gate by a certain time.

Contributory negligence

The court rejected Councils submission to the effect that the plaintiff had himself to blame for the accident upon
the basis that he failed to take reasonable care for his ow n safety. The Councils omissions and failure to take
reasonable care w ere the dominant cause of the plaintiffs accident. The plaintiffs failure to react in time to avoid
or brake to reduce the force of impact w as a departure from the applicable standard at the low end of the range.
Respective liabilities w ere assessed as being the Council at 80%, the plaintiff at 20%.

Damages

The quantum of damages w as agreed at $1,160,000 subject to the findings on the liability of the Club and
Council, and contributory negligence on the part of the plaintiff. A verdict and judgment w as entered in favour of
the plaintiff against the Council for $928,000. Judgment w as entered in favour of the Club: Simmons v Rockdale
City Council(2013) Aust Torts Reports 82-144; [2013] NSWSC 1431.

Carlton Crest and Council liable for nervous shock damages

CCH Law Chat, September 29, 2014
By Sherika Ponniah

A w oman w ho suffered an almost complete psychological collapse after w itnessing her husband killed w hen the
car he w as driving fell off the edge of a second storey car park, has been aw arded a large sum of damages by
the court that had no difficulty in ruling that both the Carlton Crest Hotel and the Council w ere liable in
negligence.

Background

When the accident occurred on the evening of 5 March 2006, Michelle Lee, a 34-year-old speech pathologist w ith
a promising career ahead of her, w as a passenger in the car driven by her husband of six years, Thomas Lee. Mr
Lee drove to a multi-level commercial car park ow ned and operated by the Carlton Crest Hotel (Sydney) Pty Ltd
(the car park and Carlton respectively). Mr Lee found a car space on the second storey. Ms Lee alighted from the
vehicle w hile Mr Lee endeavoured to reverse the car further into the car space. The car slow ly reversed into the
car space and tow ards a metal railing that w as a perimeter barrier. The barrier disintegrated and the car fell off
the edge. Mr Lee w as fatally injured. Ms Lee sued for nervous shock and under the Compensation to Relatives
Act 1897 (NSW) in respect of the alleged w rongful act, neglect, or default of Carlton and the City of Sydney
Council (Council) tow ards her late husband.

Liability of Carlton

Carlton w as negligent and w as held to be responsible for 75% of the judgment in Ms Lees favour. It ow ed a duty
of care to users of the car park that required it to have a reasonable system of inspection of the surface of the
interior and exterior of the car park to ascertain the existence of any potentially significant and obvious defects or
disrepair. If it had such a system, it w ould have detected the fact that only one-half of the w heel stop at the rear of
the car space w as affixed so as w hen Mr Lee reversed he did not detect the tactile resistance that he w as
expecting. The system w ould also have detected that the state of the car park w as such that it needed inspection
by an engineer. Such an inspection w ould have revealed that the perimeter railing w as grossly inadequate and
did not comply w ith a particular design standard that prescribed a specific level of load resistance. Carlton w as
also held to be aw are that some w heel stops w ere not attached and that at least one of the perimeter railings w as
loose.

Liability of Council

The Council w as also held liable as the car park w as not erected in compliance w ith the Local Government Act
1919 (NSW). The perimeter railing didnt comply but after inspecting the car park the Council issued a building
certificate w hich allow ed it to be used as a commercial car park. The Councils inspection and the subsequent
exercises of pow er w ere considered by the court to be both negligent and unreasonable. The Council w as to
bear responsibility for 25% of Ms Lees judgment.

Contributory negligence

Mr Lees conduct in applying accelerating force contributed to his death but he had no know ledge of either the
faulty w heel stop or the grossly inadequate nature of the perimeter railing. A reduction of 20% of the damages
recoverable w as w arranted to account for his contributory negligence.

Dam ages recoverable

In relation to her nervous shock claim, as a result of her husbands death Ms Lee suffered an almost complete
psychological collapse affecting every part of her life, including her promising career as a speech pathologist.
Since the fatal accident she had been depressed, suicidal at times and spent a considerable period in a
psychiatric clinic and her condition w as unlikely to improve. The court assessed her non-economic loss at 50% of
a most extreme case. Considerable amounts for both past and future economic loss w ere also aw arded along
w ith past and future domestic assistance, and out-of-pocket expenses.

In relation to the damages under the Compensation to Relatives Act 1897 (NSW), absent the accident, Ms Lee
could have expected to have derived significant economic benefits from her marriage. The court considered the
income Mr Lee w ould have brought to the marriage via his role as a Netw ork Support Analyst in a salary that
commenced at $72,000 per annum and modestly increased and then from 2009 to the date of judgment as a
Senior Infrastructure Specialist earning an average of $120,000 gross per annum.

The parties w ere asked to calculate the damages to give effect to the judgment: Lee v Carlton Crest Hotel
(Sydney) Pty Ltd [2014] NSWSC 1280.

THE TORT LAW REFORMS

Since 2002, governments across Australia have undertaken a comprehensive
programme of law reform to improve the cost and availability of the liability classes of
insurance.1
Jurisdictions introduced reforms progressively from 2002 to 2006, with each
jurisdiction taking into account its own circumstances. However, these reforms were
broadly consistent with the recommendations of the Review of the Law of Negligence (the
Ipp review).2
The law reforms fall into three categories, dealing with:

Establishing liability changes to the law governing decisions on

liability, including contributory negligence and proportionate liability.

Damages changes to the amount of damages paid to an injured person

for personal injury or for a claim for economic loss against a professional.

Procedural reforms time limits and methods for making and resolving
claims, including court procedures, legal conduct and legal costs.

The sections below refer, where appropriate, to two previous publications: the Review
of the Law of Negligence and a subsequent survey of the tort law reforms, Reform of
liability insurance law in Australia.3

1
2

Do not rely on the information in this chapter as a statement of the law. Instead, refer to the
Australian legislation in force from time to time and seek appropriate legal advice.
Minter Ellison Special report: Tort law reform throughout Australia: a brief review of recent
amendments (Sixth edition, December 2005) 1
<http://www.minterellison.com/public/resources/file/eb1bac0d59b7755/RG-TortLawRef
orm_0512.pdf> at 23 November 2006.
Review of the Law of Negligence: final report (September 2002)
<http://revofneg.treasury.gov.au/content/reports.asp> at 23 November 2006. Reform of
liability insurance law in Australia (February 2004)
<http://www.treasury.gov.au/contentitem.asp?ContentID=799&NavID=>
at 23 November 2006.
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The tort law reforms

There was a perception that, on occasion, lower courts accepted a lower standard of
care from the plaintiff in contributory negligence and were more indulgent to plaintiffs
than to defendants. In some cases, judges expressly applied a lower standard of care.
Apportionment legislation provided that the reduction of damages for contributory
negligence should be just and equitable. The High Court held that a reduction of
100 per cent was not permissible, on the basis that a finding of 100 per cent
contributory negligence would be incompatible with the finding that the defendant
was negligent. Contributory negligence allowed some recovery to the plaintiff, even
where the plaintiff bore a significant share of responsibility for the harm suffered.
There may be circumstances in which the plaintiffs relative responsibility for the
injuries suffered is so great that it seems fair to deny the plaintiff any damages at all.
For example, where the risk created by the defendant was patently obvious and could
have been avoided by the plaintiff exercising reasonable care.
The reforms to tort law ensured that the standard of care applied to the determination
of contributory negligence was the same as that applied to negligence. The reforms
also allowed the court to reduce the damages of a plaintiff by 100 per cent where it
considered it just and equitable to do so.
In theory, the standard of care that applied to the actions a person should take to
protect themselves is equivalent to the actions required of others to take care of that
person.
For that reason, the negligence calculus (described above in the discussion of
foreseeability) provides a framework for deciding what precautions it is reasonable to
expect a plaintiff to have taken for his or her own safety.
The defence of voluntary assumption of risk is a complete defence in the sense that it
provides the basis for denying the plaintiff any damages at all. A person will be held to
have voluntarily assumed a risk only if they were actually aware of the precise risk in
question and freely accepted that risk.
Following the introduction of the defence of contributory negligence, the defence of
the voluntary assumption of risk fell into disuse. This was because any conduct that
could amount to voluntary assumption of risk would also amount to contributory
negligence.
The reforms to tort law made it easier to establish the defence of the assumption of
risk, by reversing the burden of proof on the issue of awareness of risk in relation to
obvious risks. That is, there is a presumption that a person against whom the defence
is pleaded was aware of an obvious risk unless that person can prove, on the balance
of probabilities, that he or she was not aware of the risk. The question is whether the
person was aware of the type or kind of risk, not of its precise nature, extent or manner
of occurrence.

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The tort law reforms

For claims between $20,000 and $100,000, 45 per cent of the cost was in general
damages. Therefore, the reforms to tort law imposed a threshold on general damages,
to reduce the number and cost of smaller claims.
The reforms also capped general damages. These caps improved stability and assisted
the consistent calculation of general damages amounts below the cap.
In making these reforms, each jurisdiction took into account its own circumstances.
The Australian Government amended the Trade Practices Act 1974 through the Trade
Practices Amendment (Personal Injuries and Death) Act (No 2) 2004. The amendments
limited recovery for personal injury or death arising out of a contravention of the Act.
This ensured that damages limits under the state or territory law of the tort would
apply and that access to the Trade Practices Act 1974 for the same cause of action would
not undermine the state or territory tort law reforms.
Western Australia imposed thresholds in the same manner as its Motor Vehicle (Third
Party Insurance) Act 1943. However, it chose not to impose a cap on general damages as
it considered that this had the potential to operate unfairly in relation to the most
seriously injured claimants.
Queensland introduced a cap on general damages of $250,000 as appropriate for the
jurisdiction, having regard to the more conservative approach historically adopted by
the Queensland courts in the assessment of general damages.
Rather than introduce thresholds for general damages in personal injuries actions,
Queensland instead introduced a system of graduated general damages. It uses injury
scale values that describes different types of injuries and allocates them a point value
as a guide to courts in assessment. Corresponding dollar values for different ranges of
point values provide more compensation for the more seriously injured. Queensland
considers that this system provides clarity and transparency and is fairer than
eliminating general damages for smaller claims altogether. Queensland is currently
reviewing this scheme and expects to report on the outcome of consultation soon.
In contrast with this approach, Victoria uses guides to assess injuries for awarding
damages, including in relation to workers compensation and transport accidents.4
Victoria argues that the guides have a proven record of measuring the extent and
nature of injury.
Victoria has set permanent impairment thresholds to access general damages at
5 per cent for physical injury impairment and 10 per cent for psychiatric injury
impairment, whereas New South Wales uses a 15 per cent threshold for extreme cases.
Tasmania did not set a cap on general damages. Traditionally, general damages
awarded in Tasmania were modest so it saw no need for a cap. Also, because of the
4

American Medical Association Guides to the evaluation of permanent impairment (Fourth

edition, 1995).
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to file size restrictions, the whole booklet
wasn't able to be uploaded.