27 February 2002

Joint Communique - Ministerial Meeting on Insurance Issues

Note

Hobart

Commonwealth, State and Territory Ministers, or their representatives, and the Senior Vice President of the Australian Local Government Association (the Ministers), met today in Hobart to discuss ongoing reforms to improve the availability and affordability of liability insurance.

The meeting was the seventh in a series of highly successful meetings held over the course of the last 2 years which has resulted in all jurisdictions implementing a wide-ranging package of reforms. Ministers noted the very significant achievements in improving the availability of liability classes of insurance and evidence of capacity returning to the market. They also noted the challenge of continuing to maintain the momentum of reform, with a focus on professional indemnity insurance in particular.

Long term Care for the Catastrophically Injured

Ministers examined a range of options for the possible implementation of a long term care scheme for all catastrophically injured people.

Ministers asked officials to undertake further work to explore potential costs, benefits and efficiencies that could arise from the establishment of a nationally consistent framework.

Ministers noted that a long term care scheme would have significant implications for existing health, social welfare and disability arrangements and funding.

Ministers agreed that any options for a long term care scheme should be developed on the basis of no net shifting of costs.

Medical Assessment Panels

Ministers noted that the Medical Indemnity Policy Review Panel called for the establishment of medical assessment panels.

Ministers agreed to examine the operation of medical assessment panels, including existing arrangements as a potential means of reducing claims costs and assisting consumers in producing better outcomes.

Such panels would not consider issues of causation and would operate to determine the extent of the injury and streamline compensation cases.

Professional Indemnity Insurance

All jurisdictions have progressed legislation to improve the affordability and availability of professional indemnity insurance. Ministers reaffirmed their commitment to implement reforms including the introduction of professional standards legislation, proportionate liability, amendments to the Trade Practices Act 1974, and reforms to section 54 the Insurance Contracts Act 1984.

Professional Standards Legislation

Ministers confirmed unanimous support for professional standards legislation reforms.

Ministers agreed that any legislation or schemes being developed should be flexible enough to meet the concerns of large purchasers of professional services.

Review of the Insurance Contracts Act 1984

On 10 September 2003, the Commonwealth announced a review of the operation of the Insurance Contracts Act 1984. This review reported in two stages, with the first stage, on the operation of section 54, being released on 18 November 2003.

Following recent stakeholder consultation on the form of amendments to be made, the Commonwealth expects to release draft legislation for comment in the coming weeks to amend the operation of section 54. The report on the review of the rest of the Act is expected to be handed to the Australian Government on 31 May 2004.

Trade Practices Act 1974

The Commonwealth reported on the range of amendments to the Trade Practices Act currently being progressed through Parliament.

All Governments have renewed their support for amendments to the TPA to underpin State and Territory personal injury law reform to be implemented as soon as possible.

Discussions with the Australian Competition and Consumer Commission and Industry

The Chairman of the Australian Competition and Consumer Commission (ACCC), Mr Graeme Samuel, reported to Ministers the progress of the ACCC in monitoring prices of public liability and professional indemnity insurance.

The recent ACCC report found that the rate of increase in public liability and professional indemnity insurance premiums had slowed in the first six months of 2003 compared with 2002.

Representatives of the insurance industry reported to Ministers on the extent to which benefits of tort law reform were being passed on to consumers. They re-assured Ministers that they were conscious of the need for savings to be passed on to the Australian community.

Mr Samuel indicated he would consider seeking further powers to effectively monitor premium prices if there was evidence that insurers were not passing on the benefits of reforms.

International Marketing of Reforms

The publication, Reform of liability insurance law in Australia, was officially released by the Minister for Revenue and Assistant Treasurer, Senator the Hon Helen Coonan, today. The publication details the broad-ranging reforms implemented in all jurisdictions over the past two years.

This official release followed a report on successful meetings officials held with insurers in London at the beginning of February where the document was initially released. A number of sources have indicated that the publication was well received in the London insurance market and Australia is now regarded as being at the forefront of reforming liability law and a potential model for reform in other jurisdictions.

Next Meeting

Ministers agreed to meet again in September 2004 in Darwin.

ATTACHMENT A

COMMONWEALTH

  • The Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 was enacted on 19 December 2002 to remove tax barriers to structured settlements.
  • The Trade Practices Amendment (Liability for Recreational Services) Act 2002 was enacted on 19 December 2002. This Act seeks to amend the Trade Practices Act 1974 to allow people to sign waivers and assume the risk of participating in inherently risky recreational activities.
  • The Commonwealth Volunteers Protection Act 2002 was given Royal Assent on 24 February 2003. This Act exempts Commonwealth volunteers from liability.
  • The Trade Practices Amendment (Personal Injuries and Death) Bill 2003 was introduced into the Parliament on 27 March 2003 and has subsequently been debated twice. This Bill prevents individuals, and the Australian Competition and Consumer Commission in a representative capacity, from bringing actions for damages for personal injuries or death resulting from contraventions of Division 1 of Part V of the Trade Practices Act 1974. Proposed amendments by the federal opposition and minor parties are currently inhibiting the progress of this Bill.
  • The Treasury Legislation Amendment (Professional Standards) Bill 2003 was introduced into the Parliament on 4 December 2003. This Bill seeks to amend the Trade Practices Act 1974, the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 to support those States and Territories that implement professional standards legislation similar to that enacted in New South Wales and Western Australia.
  • The Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 was introduced into the Parliament on 4 December 2003. This Bill seeks to amend the Trade Practices Act 1974, the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 to allow proportionate liability for economic loss.
  • The Trade Practices Amendment (Personal Injuries and Death) Bill (No. 2) 2004 was introduced into the Parliament on 19 February 2004. This Bill seeks to ensure that a nationally consistent approach is taken so that limitation periods and constraints on damages arising from personal injury or death apply consistently across the country.
  • The Productivity Commission released its benchmarking study into Australian insurers claims management practices against world standards on 23 January 2003.
  • The Minister for Revenue and Assistant Treasurer released the Review of the Law of Negligence on 2 October 2002. This review was jointly established with the States and Territories and reported on a range of issues including:
    • professional negligence;
    • reform of the TPA;
    • limitation periods and reforms to assist not-for-profit organisations;
    • limiting the liability of public authorities;
    • self assumption of risk to override common law principles;
    • proposals to restrict the circumstances in which a person must guard against the negligence of others; and
    • the replacement of joint and several liability with proportionate liability.
  • The Australian Competition and Consumer Commission (ACCC) have released two reports which monitor costs and premiums in public liability and professional indemnity insurance. These reports assess the extent to which insurance companies are passing on to consumers the benefits of insurance reforms.
  • The Australian Prudential Regulation Authority (APRA) is conducting work on establishing a national claims data set.

NEW SOUTH WALES

  • New South Wales enacted the Civil Liability Act 2002 in June 2002. This Act introduced:
    • upper limits for non-economic loss ($350,000) and lost earnings (three times New South Wales’ average weekly earnings);
    • the application of a threshold of 15 per cent impairment in respect of general damages;
    • new interest calculations (10 year bond rate or as determined by regulation) and discount rates (5 per cent unless prescribed by regulation) for damages awards;
    • the abolition of punitive, exemplary and aggravated damages;
    • limits on recovery for gratuitous attendant care;
    • legal costs claims limited to the greater of 20 per cent of damages or $10,000 in small claims;
    • penalties for making unmeritorious claims; and
    • costs can be awarded on an indemnity basis for costs incurred after the failure to accept an offer of compromise.
  • The Civil Liability Amendment (Personal Responsibility) Act 2002, which was enacted in November 2002, includes:
    • waivers and voluntary assumption of risk;
    • peer acceptance defence for professionals;
    • establishing a realistic duty of care;
    • protection for volunteers and ‘good Samaritan’;
    • structured settlements;
    • ensures that saying ‘sorry’ does not represent an admission of guilt;
    • limits claims for nervous shock;
    • drugs and alcohol to be taken into account in assessing negligence;
    • proportionate liability for economic loss;
    • prohibition of damages recovery if injured person engaged in criminal activity; and
    • new limitation periods for personal injury cases.
  • The Civil Liability Amendment Act 2003, which was enacted in December 2003, includes reforms to:
    • preclude a person recovering damages if the loss results from conduct that would have constituted a serious offence if the person had not been suffering from a mental illness at the time;
    • exclude damages for the cost of rearing a child in proceedings where there is a civil liability for the birth of a child;
    • further limit the circumstances in which a public or other authority or public official is liable for damages in respect of the exercise of public functions;
    • provide for self-defence against the conduct of another person that would have been unlawful except that person had been suffering from a metal illness;
    • confirm that limitations of the Act in respect of a tort also apply to the vicarious liability of another person for that tort;
    • amend the Mental Health Act to exclude police and health care professionals from personal liability for functions exercised under the Act; and
    • amendments to the provisions for proportionate liability for economic loss.
  • New South Wales has restricted the content of legal advertising. It has halved the stamp duty on general insurance, including public liability insurance, to five percent from 1 August 2002. New South Wales has provided funding to establish a group buying and risk management facility for not-for-profit bodies.
  • New South Wales enacted its Professional Standards Act in 1994.

VICTORIA

  • In December 2003 the Victorian Wrongs and Other Acts (Law of Negligence) Act 2003 came into operation. This Act:
    • establishes in statute provisions based on the recommendations of the Review of the Law of Negligence (‘the Ipp Report’ in respect of negligence, duty of care, causation, awareness of risk, negligence of professionals and non-delegable duties;
    • limits recovery in pure mental harm cases;
    • limits liability in tort of a public authority;
    • specifies maximum recoverable damages for loss of care provided to dependants and loss of capacity to provide such care;
    • allows counsel and parties to draw to a court's attention damages awarded in other cases; and
    • revises and extends procedures applying to determination of whether a claimant's injury satisfies the threshold requirements for eligibility (should negligence be proved) for awarding of general damages.
  • The Spring 2003 sitting of the Victorian Parliament also passed the Professional Standards Act 2003, which will commence upon proclamation. This Act:
    • provides for the limitation of liability of members of occupational associations in certain circumstances; and
    • facilitates improvement in the standards of services provided by those members.
  • In May 2003 Victoria legislated further reforms, including:
    • implementing a threshold of greater than 5% whole person impairment for access to general damages;
    • implementing proportionate liability for purely economic loss (ie, excluding death or personal injury);
    • implementing a limitation period of 3 years from date of discoverability, but with this period to be 6 years in the case of minors, reducing to 3 years when they reach 18; and
    • specifying maximum recoverable damages for gratuitous attendant care services.
  • In October 2002, Victoria legislated a range of reforms including:
    • caps on general damages of $371,000;
    • a cap on the loss of earnings of three times average weekly earnings;
    • an increase of the discount rate to five per cent;
    • the establishment of a special Insurance Commissioner within the Essential Services Commission;
    • provision of waivers to allow people to accept risk;
    • protection of volunteers and ‘good Samaritans’;
    • requiring a court to take into account that the injury was suffered through criminal activity or while under the influence of drugs; and
    • ensuring that saying ‘sorry’ does not represent an admission of liability.
  • Victoria has acted on a sector by sector basis to assist groups most severely disadvantaged by the lack of availability and increased prices of insurance. Action includes:
    • creating of a group insurance scheme for community organisations;
    • providing State indemnities, subject to strict risk management conditions, for certain groups and businesses, including heritage rail and adventure tourism operators, unable to obtain commercial insurance:
    • providing a grant of $330,000 to the Municipal Association of Victoria (MAV) for the development of risk mitigation activities that are linked to the community group insurance scheme; and
    • providing a grant of $100,000 to adventure tourism operators to assist them prepare risk management plans and audits.

QUEENSLAND

  • The Queensland Parliament passed the Civil Liability Act 2003 on 3 April 2003. The new legislation includes the majority of Justice Ipp’s recommendations. A summary of the reforms contained in the Act include:
    • a $250,000 cap on general damages;
    • proportionate liability for non-personal injuries claims where damages exceed $500,000;
    • no liability for failure to warn of obvious risks;
    • no liability for injuries arising from obvious risks in the case of recreational activities;
    • no liability in cases where the injured person was engaged in criminal activity which contributed to the risk of injury. This will mean that where a court determines, on the balance of probabilities, that a person was engaged in a criminal act, the person will not be entitled to claim damages;
    • restricted claims where a person's intoxication contributed to their personal injury. This will involve the mandatory reduction of damages to a claimant who is intoxicated, and removal of any special duty owed to people simply because they are intoxicated; and
    • a change in the standard of care for professional groups, including doctors, to protect against liability for acts performed in accordance with a respected body of professional opinion.
  • The Civil Liability Act 2003 complements Queensland’s earlier reforms contained in the Personal Injuries Proceedings Act 2002. The Act:
    • requires early notification of claims, adequate timeframes for the defendant/insurers to make a determination on liability and mandatory exchange of information;
    • restricts legal advertising;
    • limits legal costs in small claims;
    • excludes juries from hearing personal injury trials;
    • excludes exemplary, punitive or aggravated damages; and
    • provides for a court to make a consent order for a structured settlement.
  • Queensland also has:
    • established a group liability insurance scheme for not for profit organisations. This scheme has been operational since 1 September 2002.
    • removed stamp duty on public liability insurance premiums for not for profit organisations.
    • developed an interactive website as a practical guide to assist not-for-profit organisations and small business in applying risk management practices to their own activities.

WESTERN AUSTRALIA

  • The Civil Liability Act 2002 was proclaimed on the 1 January 2003 and introduced the following:
    • a cap on economic loss to three times the amount of gross average weekly earnings at the date of the damages award;
    • structured settlement to allow periodic payments funded by an annuity or other agreed means;
    • restrictions on advertising of personal injury legal services and touting;
    • a deductible threshold on general damages; and
    • threshold and limits on gratuitous attendant care.
  • The Volunteers (Protection From Liability) Act 2002 commenced on 1 January 2003 and provides volunteers with qualified immunity from civil liability when doing community work for not-for-profit incorporated associations. More details can be found at http://www.volunteering.communitydevelopment.wa.gov.au/policies.html
  • Fire and Emergency Services Legislation Amendment Act 2002 protects volunteer fire units and marine rescue units and their members from civil liability.
  • The Insurance Commission of Western Australia Amendment Act 2002 allows for the establishment of a Community Insurance Fund (CIF) and for the Commission to provide insurance to eligible not-for-profit organisations. Since its inception, the CIF has provided cover to many organisations including tourist railways, charity events, community festivals, toy libraries and youth clubs that were unable to obtain affordable insurance in the private sector. Further information on this initiative can be obtained at www.icwa.wa.gov.au/cif/.
  • The Civil Liability Amendment Act 2003 commenced on 1 December 2003 (except for the proportionate liability provisions, which will be proclaimed soon). The Act is intended not only to contribute to containing the current insurance crisis, but also to help to change social and legal attitudes towards the assumption of and liability for risk. The Act addresses the following:
    • general principles of liability for negligence;
    • contributory negligence;
    • damages for mental harm;
    • liability arising from the performance of public functions;
    • protection for ‘good Samaritans’;
    • the effect of apologies;
    • reintroduction of the non-feasance rule to protect roads authorities including local governments;
    • proportionate liability for economic loss; and
    • voluntary assumption of risk, including allowing for risk warnings and waivers to be effective for recreational activities.
  • Legislation is being drafted to effect the introduction of a modified Bolam test for medical professionals. However, announced amendments do not include general duty to warn or inform.
  • Legislation is being drafted to overhaul limitation periods:
  1. In the case of latent injury, cause of action will accrue when the injury first manifested itself, rather than (as at present) when it first occurred.
  2. Initial limitation period is to be three years – as in every other State.
  3. Courts will be given power to extend time beyond the initial three-year period in various circumstances.
  4. In the case of children, the ordinary limitation provisions will apply where the child is in the custody of a parent or guardian, with various exceptions.
  5. A regime analogous to that applying to children will apply to claims by people with a mental disability.
  • Legislation is being drafted to align the proportionate liability provisions of the Civil Liability Act 2003 with amendments made to the NSW model.
  • The Professional Standards Act 1997 came into force in 1998 following a Parliamentary Select Committee Report on Professional and Occupational Liability (final report No 3, January 1994). State Cabinet has decided to reinvigorate its professional standards scheme and amend the Act to now make it consistent with New South Wales’ Professional Standards Act 1994. Amending legislation is being drafted and is expected to be introduced early in 2004.
  • The Offenders (Legal Action) Act 2000, which limits criminals recovering damages for injuries received while committing a crime.
  • The Government’s Public Liability Relief package includes the introduction of a state-wide risk management campaign that has been coordinated and implemented by the Department of Sport and Recreation, in cooperation with the Insurance Commission of WA. Between June and August 2003, a series of free risk management seminars were presented across the metropolitan area as well as in 14 regional locations. These were attended by over 1,500 people. Further information is available at www.dsr.wa.gov.au, including advice of upcoming risk management seminars.
  • The Small Business Development Commission has also undertaken a campaign, targeting businesses around the State with public liability and occupational safety and health workshops.
  • Western Australia has also developed an interactive website as a practical guide to assist not-for-profit organisations and small business in applying risk management practices to their own activities. A free risk management guideline has also been published. 12,000 copies of the booklet have been distributed. The free risk management guideline and down-loadable spreadsheet can be found at http://www.icwa.wa.gov.au/cif/

SOUTH AUSTRALIA

  • The Statutes Amendment (Structured Settlements) Act 2002 permits structured settlements.
  • The Recreational Services (Limitation of Liability) Act 2002 addresses self assumption of risk for high-risk activities.
  • The Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 includes:
    • the protection of ‘good Samaritans’;
    • caps ($241,500) and thresholds (seven days impairment or $2,750 in medical expenses) for general damages, and a regulated scale of damages related to the severity of injury;
    • caps on economic loss;
    • a ban on interest on damages for non-economic or prospective losses;
    • a 5 per cent discount rate for damages for loss of future earning capacity
    • exclusion of damages for the cost of investing or managing an award;
    • limits on recovery for gratuitous care;
    • limits on who can sue for nervous shock;
    • no damages for those injured while engaged in a serious criminal activity subject to certain protections;
    • intoxication to result in an automatic minimum 25% reduction (or 50% if over 0.15% blood alcohol) when courts are awarding bodily injury damages;
    • reliance on the care and skill of an intoxicated person to result in an automatic 25% (or 50% if over 0.15% blood alcohol) reduction in damages; and
    • protection for expressions of regret.
  • South Australia has enacted the Volunteers Protection Act 2001 to protect volunteers of government and incorporated bodies from personal liability.
  • It currently has pre litigation procedures that provide opportunities for settlement of claims in an economical way.
  • The second stage of South Australia’s tort law reforms are currently before Parliament in the form of the Law Reform (Ipp Recommendations) Bill 2003. The Bill addresses the key liability recommendations of the Ipp Report, including:
    • providing a defence to a negligence action for doctors and other professionals if they have acted in accordance with a practice widely held by respected practitioners to be a proper practice;
    • removing liability for failure to warn of obvious risks, and providing that, for the purpose of a defence of voluntary assumption of risk, plaintiffs are deemed to be aware of obvious risks unless they can prove otherwise;
    • in relation to limitation periods making it more difficult to obtain extensions of time beyond the statutory periods and providing for an early notification regime for children’s claims;
    • codifying and clarifying the common law in relation to the causation, foreseeability and scope of liability principles of negligence; standard of care for professionals, and contributory negligence;
    • restoration of the highway immunity for road authorities;
    • capping of economic loss in loss of dependency claims; and
    • the Bill also extinguishes entitlement to damages for the costs of raising a healthy child in response to the High Court decision in Cattanach v Melchior.
  • The Professional Standards Bill 2003 was tabled in Parliament in November 2003 and is largely based on the NSW model.
  • The South Australian Government is currently drafting legislation to adopt proportionate liability in relation to economic loss and property damage claims.

TASMANIA

  • Tasmania’s Civil Liability Amendment Act 2003, which implements the nationally agreed Ipp recommendations, commenced on 4 July 2003. In relation to the awarding of damages, which it was agreed should be introduced on the state by state basis, having regard to the particular circumstances in each jurisdiction, the Act provides:
    • no cap for general damages;
    • a cap on earnings of 4.25 times national average weekly earnings;
    • a threshold for non economic loss, in the form of a deductible of $4 000 which tapers out at $20 000; and
    • no restriction on the recovery of legal costs.
  • The introduction of the nationally agreed reforms to the law of negligence is the third phase of the Tasmanian Government’s three phased reform approach to deal with the public liability crisis.
  • The first phase of reform included the following measures:
    • assisting with the development of risk management plans for Tasmanian business;
    • eliminating stamp duty on public liability premiums, representing a $1.7 million saving for consumers;
    • introducing the $1 million Public Liability Insurance Facilitation Scheme (PLIFS) to assist community and sporting groups to find affordable public liability cover. The PLIFS has, to date, received over 200 applications and has provided, or agreed to provide, assistance to around 140 organisations in meeting increased public liability premiums, with assistance from the Government of around $650,000; and
    • working with Local Government to help Tasmanian community groups access the Our Community group buying scheme initiative.
  • The second phase of reforms is contained in the Civil Liability Act 2002. The Act includes measures to:
    • ensure that the Courts have the power to order structured settlements, as an alternative to lump sum payouts for future economic loss;
    • restrict the level of damages that may be awarded in cases where use of recreational drugs (including alcohol) by the injured party has contributed to his or her injury;
    • prohibit the recovery of damages if the injured person is engaged in serious criminal activity at the time of injury; and
    • clarify that saying ‘sorry’ is not to be taken as an admission of legal liability.
  • The above reforms complement measures already in place in Tasmania which had been identified at the 30 May 2002 Ministerial meeting on public liability insurance as being important in addressing public liability and professional indemnity issues.
    • The discount rate for determining the present value of future costs when calculating damages is set at 7 per cent, above the minimum rate of 3 per cent proposed in the review.
    • There is no provision for pre-judgement interest to be awarded by the Supreme Court.
    • Tasmania does not allow damages in respect of gratuitous attendant care.
    • Tasmania has a three-year statute of limitations for personal injury claims, with judicial discretion for an additional three years.

AUSTRALIAN CAPITAL TERRITORY

  • The ACT has embarked on a three-stage process in response to the insurance crisis.
  • The Civil Law (Wrongs) Act 2002 is the central plank of the first stage. It consolidates and improves existing ACT statutory tort law and introduces the first tranche of ACT tort law reforms. Legislation to give effect to the second stage, the Civil Laws (Wrongs) Bill 2003 has been presented to and passed by the ACT Legislative Assembly. This legislation integrates longer-term national reviews of insurance related tort matters, in which the ACT has been involved, into the Civil Law (Wrongs) Act. Stage two also addresses aspects of medical indemnity. The third stage will address unevenness in the efficiency with which civil claims are managed by further amendments to the Wrongs Act and related laws dealing with civil procedure. Stage three will also pick up national reforms directed at improving access by the profession to professional indemnity insurance.
  • Stage one, the Civil Law (Wrongs) Act 2002, contained the following initiatives:
    • for those who performed essential functions and were most vulnerable, volunteers and ‘good Samaritans’, legislative relief in relation to negligence claims against those individuals;
    • for seriously injured claimants whose damages are significant, as an alternative to lump sum payouts, structured settlements. This will ensure that claiming payments will be properly directed towards care and rehabilitation. It will also prevent ‘double-dipping’ by claimants who fall back on the public health system when lump sum payments are exhausted;
    • for those who were better able to assume responsibility for their own high-risk activities or those within the 99th income percentile, limitations on recovery are applied in the context that it would be more economically efficient for those groups to carry their own accident insurance;
    • on the other hand, for those who choose to act illegally or as a result of self-induced impairment, restrictions on recovery have been imposed; and
    • in addition, the Government believes that there are further market efficiencies to be gained by sponsoring changes to legal processes, insurers’ record keeping and the flow of litigation. The Act covers these areas and it also provides incentives for lawyers to process cases more efficiently.
  • Stage two, the Civil Law (Wrongs) Amendment Act 2003, encompasses:
    • effective management of claims assessment at the early stages of litigation;
    • early notification and open disclosure;
    • expert witness trial to deal with medical negligence and potentially other classes of negligence;
    • changes to the statute of limitations for personal injury actions;
    • enactment of provisions complementary to the Commonwealth’s amendments to the Trade Practices Act 1974;
    • adoption of a system of no-fault apologies in negligence case, excepting third party motor vehicle, sex discrimination and defamation (dealt with in stage 1)
    • greater certainty in personal injury outcomes, particularly in the case of medical negligence;
    • further measures fostering efficiency in case processing and management;
    • use of various forms of alternative dispute resolution, both before and after proceedings are commenced,
    • use of pre-trial procedures to assist settlement of cases before they get to court; and
    • specific measures dealing with medical negligence, including defences.
  • Stage three, the Civil Law (Wrongs) (Thresholds) Amendment Bill 2003 and the Civil Law (Wrongs) (Proportionate Liability and Professional Standards) Amendment Bill 2004 will, when passed, contain the Government’s legislative responses to medical and other professional indemnity insurance issues.
  • In addition, further stage three legislation is under development to deal with reforms to the court system and the claims processing infrastructure. When passed, this legislation will, inter alia, standardise procedures across all Courts in the ACT.
  • In addition to legislative based reforms, the Government has:
    • developed a web-based risk management site in conjunction with leading community organisations;
    • standardised insurance levels for all community organisations that use or occupy ACT Government property under a written agreement;
    • developed a fully integrated on line risk rating, recognition, planning, management and reporting tool for use by ACT Government and the broader Capital Region community;
    • introduced a government wide enterprise wide risk management framework. This framework will be fully integrated with the on line risk technology, so that any the risk component extant for any entity that does business with the ACT Government will be standardised in terms of risk rating, recognition, planning, management, reporting and insurance requirement;
    • introduced a group insurance scheme to the ACT non profit/volunteer community; and
    • conducted a series of widely praised community and small business risk awareness and management seminars in 2003 and 2004. At least 20 full day small business insurance seminars are scheduled for the first quarter of 2004, incorporating SME business insurance risk, risk rating, recognition, planning, management and reporting.

NORTHERN TERRITORY

  • The Consumer Affairs and Fair Trading (Amendment) Act 2003 complements the Commonwealth's recent amendments to the Trade Practices Act to remove a statutory impediment to the self-assumption of risk by persons undertaking risky recreational activities. The Act commenced on 1 May 2003.
  • The Personal Injuries (Liabilities and Damages) Act 2003 includes:
    • a medical impairment model for assessing awards of general damages for non-economic loss, with a 5% threshold and a scaling of awards up to an indexed cap of $350 000;
    • a cap on damages for past and future loss of earnings of three times average weekly earnings;
    • limits on the circumstances and amount of damages for gratuitous attendant care;
    • setting prejudgment interest on damages awards at the 10 year Commonwealth bond rate;
    • setting the discount rate for calculating awards for future losses at 5%;
    • prohibiting recovery of damages for those engaged in criminal activity;
    • providing that the use of recreational drugs and alcohol be taken into account when assessing contributory negligence;
    • prohibiting court awards of aggravated or exemplary damages;
    • permitting courts to make orders for structured settlements;
    • protecting community organisation volunteers from being sued for acts done in good faith;
    • protecting 'good Samaritans' who aid a person in need of emergency assistance; and
    • ensuring an expression of regret is not construed as an admission of liability.

The Act commenced on 1 May 2003.

  • The Personal Injuries (Civil Claims) Act 2003 and the Legal Practitioners Amendment (Costs and Advertising) Act 2003 are designed to reduce the cost of legal proceedings and provide for a greater level of certainty by introducing a process with which claimants are required to comply before legal proceedings can be commenced in a court and by placing realistic limits on legal costs and legal advertising. Both Acts commenced in part on 1 July 2003.
  • A Bill relating to the balance of the Law of Negligence recommendations is expected to be released for discussion in mid-2004. The Bill will seek to reform the law in relation to civil liability for negligent acts or omissions and deals specifically with liability for harm generally (breach of duty generally, breach of duty by professionals, causation, assumption of risk, dangerous recreational activities, non-delegable duties, vicarious liability and contributory negligence), liability of public authorities and liability for mental harm.