Long title

Part 1 Preliminary

1 Name of Act

2 Commencement

3 Definitions

3A Provisions relating to operation of Act

3B Civil liability excluded from Act

3C Act operates to exclude or limit vicarious liability

4 Miscellaneous provisions

Part 1A Negligence

Division 1 Preliminary

5 Definitions

5A Application of Part

Division 2 Duty of care

5B General principles

5C Other principles

Division 3 Causation

5D General principles

5E Onus of proof

Division 4 Assumption of risk

5F Meaning of “obvious risk”

5G Injured persons presumed to be aware of obvious risks

5H No proactive duty to warn of obvious risk

5I No liability for materialisation of inherent risk

Division 5 Recreational activities

5J Application of Division

5K Definitions

5L No liability for harm suffered from obvious risks of dangerous recreational activities

5M No duty of care for recreational activity where risk warning

5N Waiver of contractual duty of care for recreational activities

Division 6 Professional negligence

5O Standard of care for professionals

5P Division does not apply to duty to warn of risk

Division 7 Non-delegable duties and vicarious liability

5Q Liability based on non-delegable duty

Division 8 Contributory negligence

5R Standard of contributory negligence

5S Contributory negligence can defeat claim

5T Contributory negligence—claims under the Compensation to Relatives Act 1897

6–8 (Repealed)

Part 2 Personal injury damages

Division 1 Preliminary

9, 10 (Repealed)

11 Definitions

11A Application of Part

Division 2 Fixing damages for economic loss

12 Damages for past or future economic loss—maximum for loss of earnings etc

13 Future economic loss—claimant’s prospects and adjustments

14 Damages for future economic loss—discount rate

15 Damages for gratuitous attendant care services: general

15A Damages for gratuitous attendant care services: dust-related conditions

15B Damages for loss of capacity to provide domestic services

15C Damages for loss of superannuation entitlements

Division 3 Fixing damages for non-economic loss (general damages)

16 Determination of damages for non-economic loss

17 Indexation of maximum amount relating to non-economic loss

17A Tariffs for damages for non-economic loss

Division 4 Interest on damages

18 Interest on damages

Division 5 Third party contributions

19 Third party contributions

20 (Repealed)

Division 6 Exemplary and similar damages

21 Limitation on exemplary, punitive and aggravated damages

Division 7 Structured settlements

22 What is a structured settlement

23 Court required to inform parties of proposed award

24 Court may make consent order for structured settlement

25 Obligation of Australian legal practitioners to provide advice

26 Offer of structured settlement—legal costs

Part 2A Special provisions for offenders in custody

Division 1 Preliminary

26A Definitions

26B Application of Part

Division 1A Duties of claimant for offender damages

26BA Protected defendant must be given notice of incident giving rise to claim

26BB Claimant must comply with requests for information

26BC Vulnerable offenders

26BD Dismissal of court proceedings for failure to give notice or co-operate on claim

Division 2 Damages subject to 15% permanent impairment threshold

26C No damages unless permanent impairment of at least 15%

26D Assessment of permanent impairment

Division 3 Damages for economic loss

26E Damages for past or future loss of earnings

26F Retirement age

26G Future economic loss—assumption about release on parole

Division 4 Damages for non-economic loss

26H Restriction on damages for non-economic loss

26I Non-economic loss damages limited to workers compensation amount

Division 5 Victims support payments owed by offender

26J Authority for deduction from damages

Division 6 Offender damages trust funds

26K Interpretation

26L Offender damages to be held in trust as victim trust fund

26M Victim trust fund available to satisfy eligible victim claims

26N Notice to persons entitled to make victim claim

26O Provision of information to persons entitled to claim

26P Commencement of victim claims proceedings despite expiry of limitation period

26Q Orders for payment of damages out of money held in trust for victims of offender

26R Payment to offender of trust fund surplus

26S Functions of the NSW Trustee and Guardian

26T Exception for legal costs

26U Maximum legal costs of eligible claims

26V Protection from liability

26W Division overrides Part 7 Division 2

Part 3 Mental harm

27 Definitions

28 Application of Part

29 Personal injury arising from mental or nervous shock

30 Limitation on recovery for pure mental harm arising from shock

31 Pure mental harm—liability only for recognised psychiatric illness

32 Mental harm—duty of care

33 Liability for economic loss for consequential mental harm

Part 4 Proportionate liability

34 Application of Part

34A Certain concurrent wrongdoers not to have benefit of apportionment

35 Proportionate liability for apportionable claims

35A Duty of defendant to inform plaintiff about concurrent wrongdoers

36 Contribution not recoverable from defendant

37 Subsequent actions

38 Joining non-party concurrent wrongdoer in the action

39 Application of Part

Part 5 Liability of public and other authorities

40 Application of Part

41 Definitions

42 Principles concerning resources, responsibilities etc of public or other authorities

43 Proceedings against public or other authorities based on breach of statutory duty

43A Proceedings against public or other authorities for the exercise of special statutory powers

44 When public or other authority not liable for failure to exercise regulatory functions

45 Special non-feasance protection for roads authorities

46 Exercise of function or decision to exercise does not create duty

Part 6 Intoxication

47 Part applies to civil liability for death, injury or property damage

48 Definition of “intoxication”

49 Effect of intoxication on duty and standard of care

50 No recovery where person intoxicated

Part 7 Self-defence and recovery by criminals

Division 1 Limitations on damages

51 Part applies to civil liability for death, injury or property damage

52 No civil liability for acts in self-defence

53 Damages limitations apply even if self-defence not reasonable response

54 Criminals not to be awarded damages

54A Damages limitations if loss results from serious offence committed by mentally ill person

Division 2 Supervision of damages arising out of criminal conduct by persons suffering from mental illness

54B Definitions

54C Application of Division

54D Damages supervision orders

54E Additional matters relating to damages supervision orders

54F Estates under supervision of Protective Commissioner

54G Hindering or obstructing NSW Trustee and Guardian

54H Evidence of NSW Trustee and Guardian’s right to act

Part 8 Good samaritans

55 Application of Part

56 Who is a good samaritan

57 Protection of good samaritans

58 Exclusion from protection

Part 8A Food donors

58A Interpretation

58B Application of Part

58C Protection of food donors

Part 9 Volunteers

59 Application of Part

60 Definitions

61 Protection of volunteers

62 Liability not excluded for criminal acts

63 Liability of intoxicated volunteer not excluded

64 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions

65 Liability not excluded if insurance required

66 Liability not excluded for motor accidents

Part 10 Apologies

67 Application of Part

68 Definition

69 Effect of apology on liability

Part 11 Damages for the birth of a child

70 Application of Part

71 Limitation of the award of damages for the birth of a child

Schedule 1 Savings and transitional provisions

Schedule 2 (Repealed)

Historical notes