Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3300 ..
MR STEFANIAK (continuing):
Clause 120 (3) will not apply to a Donoghue and Stevenson situation. That is where some groundbreaking stuff might be occurring. The clause reads.
... this part does not apply to a claim for damages if the court considers that it is in the interests of justice for the claim to be continued and makes an order to that effect.
The law might need changing, and it is important to run the matter as a test case. My colleague Mr Smyth asked whether it was like a Mabo situation. Mabo was a very different case and is not relevant to this, but it was a groundbreaking decision. So it is probably a Mabo-type case, if you are not familiar with Donoghue and Stevenson. Mrs Donoghue drank from a bottle which had a snail in it and became very ill. She had a lot of shock as a result and successfully sued the manufacturers of the soft drink. That case in the 1930s revolutionised the law of torts.
Mr Stanhope: Ginger beer.
MR STEFANIAK: Ginger beer, it was. Those cases crop up, and it is crucially important that people are able to run them. It will be very interesting to see how this part pans out, because there are a lot of issues around it. It might have the potential to drop some costs. It will be very interesting to see what effect the two points I have raised about the reasonable prospects of success not kicking in until the matter is ready to be set down for hearing and the legislation not applying in the Donoghue and Stevenson situation have. I hope the legislation covers all situations where plaintiffs' rights to bring actions are protected. (Extension of time granted.) A neutral evaluator will look at whether a Donoghue and Stevenson-type of situation should be able to proceed under clause 120 (3). That would be a deputy registrar. That follows the New South Wales earlier approach, and that is probably quite sensible.
I will be moving an amendment to clause 34 (1) (a). The government has the standard of proof as "beyond reasonable doubt". I think it should be "on the balance of probabilities". I will speak more to that when the time comes.
MS DUNDAS (12.18): The ACT Democrats welcome the introduction of the Civil Law (Wrongs) Bill as part of the government's response to the current crisis in the insurance market. The crisis has been a big issue facing this territory over the last 12 months, with the collapse of HIH in the domestic market, then the collapse of the international reinsurance market following the tragic events in New York just over a year ago.
The increases in premiums over the last year have been well documented. They have caused many organisations either to cancel events or to cut back activities. The inability of charities to obtain liability cover for fundraising events is likely to impact significantly on revenues collected by many charities this year. It will be a very difficult year for many charities and sporting groups to balance their books.
All governments in Australia have acknowledged that there is a crisis in the public liability insurance industry. All agree that there is a need for action to ensure that the community does not lose the contribution of many charities, sporting groups, community services and volunteers.