[STATE ARMS]

New South Wales

Courts Legislation Amendment (Provisional Damages) Bill 1996

Explanatory note

Overview of Bill

The object of this Bill is to implement the recommendations of the New South Wales Law Reform Commission contained in its Report on Provisional Damages (LRC 78, 1996). In particular the Bill:

(a) amends the Supreme Court Act 1970 and the District Court Act 1973:

• to allow the Supreme Court and the District Court to award provisional damages to an injured person where it is proved or admitted to be a chance that in the future the injured person will develop a serious disease or further deterioration in his or her physical or mental condition as a result of the act or omission that gave raise to the cause of action, and
• to provide that an award of provisional damages must specify the disease or type of deterioration in respect of which a further award of damages may be made and may specify the time period within which an application for further damages may be made, and
• to allow an award of damages to be made in respect of more than one disease or type of deterioration, and
(b) amends the Law Reform (Miscellaneous Provisions) Act 1944 so that an award of provisional damages recoverable for the benefit of the estate of a deceased person can include economic loss, and

(c) amends the Compensation to Relatives Act 1897 so that an assessment of damages in relation to a dependant's claim must take into account any other compensation awarded to the deceased person for economic loss.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be proclaimed.

Clause 3 is a formal provision giving effect to the amendment to the Supreme Court Act 1970 set out in Schedule 1.

Clause 4 is a formal provision giving effect to the amendment to the District Court Act 1973 set out in Schedule 2.

Clause 5 is a formal provision giving effect to the amendment to the Law Reform (Miscellaneous Provisions) Act 1944 set out in Schedule 3.

Clause 6 is a formal provision giving effect to the amendment to the Compensation to Relatives Act 1897 set out in Schedule 4.

Schedule 1 makes the amendments to the Supreme Court Act 1970 described above.

Schedule 2 makes the amendment to the District Court Act 1973 described above.

Schedule 3 makes the amendment to the Law Reform (Miscellaneous Provisions) Act 1944 described above.

Schedule 4 makes the amendment to the Compensation to Relatives Act 1897 described above.

Contents

1 Name of Act

2 Commencement

3 Amendment of Supreme Court Act 1970 No 52

4 Amendment of District Court Act 1973 No 9

5 Amendment of Law Reform (Miscellaneous Provisions) Act 1944 No 28

6 Amendment of Compensation to Relatives Act 1897 No 31

Schedules
1 Amendment of Supreme Court Act 1970

2 Amendment of District Court Act 1973

3 Amendment of Law Reform (Miscellaneous Provisions) Act 1944

4 Amendment of Compensation to Relatives Act 1897

New South Wales

Courts Legislation Amendment (Provisional Damages) Bill 1996

A Bill for

An Act to amend the Supreme Court Act 1970, the District Court Act 1973, the Law Reform (Miscellaneous Provisions) Act 1944 and the Compensation to Relatives Act 1897 to enable the award of provisional damages in proceedings for personal injuries.

The Legislature of New South Wales enacts:

1 Name of Act

This Act is the Courts Legislation Amendment (Provisional Damages) Act 1996.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Supreme Court Act 1970 No 52
The Supreme Court Act 1970 is amended as set out in Schedule 1.
4 Amendment of District Court Act 1973 No 9
The District Court Act 1973 is amended as set out in Schedule 2.
5 Amendment of Law Reform (Miscellaneous Provisions) Act 1944 No 28
The Law Reform (Miscellaneous Provisions) Act 1944 is amended as set out in Schedule 3.
6 Amendment of Compensation to Relatives Act 1897 No 31
The Compensation to Relatives Act 1897 is amended as set out in Schedule 4.

Schedule 1 Amendment of Supreme Court Act 1970

(Section 3)

[1] Part 5 Powers

Insert after Division 2 of Part 5:

Division 3 Provisional damages

76I Orders for provisional damages for personal injuries

(1) This Division applies to proceedings for damages for personal injuries in which there is proved or admitted to be a chance that in the future the injured person will, as a result of the act or omission that gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his or her physical or mental condition.

(2) The Court may, in any proceedings for damages to which this Division applies, award the injured person (on such terms as it thinks just):


(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his or her condition, and

(b) further damages at a future date if he or she develops the disease or suffers the deterioration.


(3) An order for the award of provisional damages:

(a) must specify the disease or type of deterioration in respect of which an award of further damages may be made, and

(b) may specify the period within which an application for further damages may be made.


(4) The Court may, on application made by the plaintiff, by order extend the period (if any) specified under subsection (3). The Court may make more than one such order.

(5) An order for the award of provisional damages may be made in respect of more than one disease or type of deterioration, and may specify under subsection (3), in respect of each disease or type of deterioration, a different period within which an application for an award of further damages may be made.

76J Termination of application for further damages
(1) If the Court specifies a period within which an application for further damages may be made, the plaintiff's ability to apply for further damages terminates at the end of the specified period or the earlier death of the plaintiff.

(2) If no period is specified, the plaintiff's ability to apply for further damages terminates on the death of the plaintiff.

(3) Subsections (1) and (2) do not preclude a claim for further damages by the plaintiff's estate.

(4) In this section, period includes a period as extended under section 76I.

76K Number of applications for further damages
(1) A plaintiff may only make one application for further damages in respect of each disease or type of deterioration specified in the order for the award of provisional damages under this Division.

(2) However, when deciding an application for further damages, the Court may make an order granting a right to make a further application in such circumstances as may be specified in the order. Such an order may allow the further application to be made within or after the period within which the first application may be made.

(3) Successive orders may be made under subsection (2) in connection with successive applications by the plaintiff.

76L Other limitations on damages not affected
Nothing in this Division is to be construed as prejudicing any duty of the Court under any enactment or rule of law to reduce or limit the total damages that would have been recoverable apart from the provisions of this Division.
[2] Fourth Schedule Savings and transitional provisions
Insert after clause 2:

3 Courts Legislation Amendment (Provisional Damages) Act 1996

Division 3 of Part 5, as inserted by the Courts Legislation Amendment (Provisional Damages) Act 1996, applies to proceedings for personal injuries whether the proceedings were commenced before, on or after the commencement of that Division.

Schedule 2 Amendment of District Court Act 1973

(Section 4)

Part 3, Division 3 Actions: Procedure

Insert after Subdivision 4 of Division 3 of Part 3:

Subdivision 5 Provisional damages

62 Application of provisions of Supreme Court Act relating to provisional damages

The following provisions of the Supreme Court Act 1970:

(a) Division 3 of Part 5, and

(b) clause 3 of the Fourth Schedule,

apply to and in respect of proceedings for damages for personal injuries in the Court in the same way as they apply to and in respect of proceedings for damages for personal injuries in the Supreme Court.

Schedule 3 Amendment of Law Reform (Miscellaneous Provisions) Act 1944

(Section 5)

Section 2 Effect of death on certain causes of action

Insert after section 2 (2):
(2A) For the avoidance of doubt, subsection (2) (a) (ii) does not apply to an award of provisional damages under:

(a) section 76I of the Supreme Court Act 1970, or

(b) section 62 of the District Court 1973, or

(c) section 11A of the Dust Diseases Tribunal Act 1989.

Schedule 4 Amendment of Compensation to Relatives Act 1897

(Section 6)

Section 4A

Insert after section 4:

4A Provisional damages

If a deceased person has been awarded provisional damages under:

(a) section 76I of the Supreme Court Act 1970, or

(b) section 62 of the District Court Act 1973, or

(c) section 11A of the Dust Diseases Tribunal Act 1989,

an assessment of damages in accordance with section 3 must take into account such part of the provisional award or any other award as has already compensated the deceased person's economic loss for the period beyond the date on which the person died.