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Legislative Assembly for the ACT: 2003 Week 7 Hansard (24 June) . . Page.. 2248 ..



The bill includes the provision from the existing compulsory third party scheme which allows for parties to be penalised for making a claim or statement knowing it is false or misleading in a material particular.

The bill includes the partial codification of the law of negligence. The Ipp report recommended legislative clarification of the general principles of negligence, in response to recent cases that have had the potential to expand liability for negligence. The basic principles of negligence, including duty of care, standard of care for negligence, precautions against risk and causation, have been included in the bill.

The bill provides a restatement of the common law regarding contributory negligence and provides that the court may reduce a plaintiff's damages by 100 per cent for contributory negligence.

An underlying principle applied by the Ipp report was that people should take responsibility for their own lives and safety. The bill recognises that there may be cases where the plaintiff's relative responsibility for their injuries is so great that it is fair to deny the plaintiff any damages at all.

The bill provides that damages are not available for mental harm, unless the mental harm is a recognised psychiatric illness. Implementation of this provision will avoid what appear to be early signs of the courts developing a new head of damages for mere sadness.

The Ipp report recommended that, in assessing general damages, courts should be able to refer to decisions in earlier cases. Implementation of this Ipp recommendation will allow the courts to consider comparable injuries and damages and will ensure that the courts are consistent in awarding damages. This recommendation will assist in the collection of data on personal injuries damages.

The bill clarifies the liability of public authorities, following the High Court decision in Brodie v Singleton Shire Council. That case held that the former rule, which protected highway authorities from liability for harm resulting from mere inaction, was no longer good law. The Brodie decision has caused an understandable level of concern amongst road authorities at the local, state and federal level about the implications the decision may have on already strained road budgets, and what response is required of government. In response to these concerns, the Ipp report recommended legislative clarification of the duties of public authorities.

Specifically, the Ipp report recommended that legislation provide that a policy decision should not be able to be used to support a finding that a public authority was negligent, unless the decision was so unreasonable that no reasonable public authority could have made it; and that a public authority should only be liable for personal injury damages for breach of a statutory duty where the provisions and policy of the relevant statute are compatible with the existence of such liability.

Mr Speaker, insurance for the equine activities industry is currently unavailable. To ensure that equine activities can continue, and to encourage insurers back into this market, the bill clarifies the liability of people who provide equine activities. This is based on model legislation, operating in 42 American states, which provides a stable

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