Page 4745 - Week 15 - Thursday, 21 November 1991
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LAW REFORM (MISCELLANEOUS PROVISIONS)
(AMENDMENT) BILL (NO. 2) 1991
[COGNATE BILL:
COMPENSATION (FATAL INJURIES) (AMENDMENT) BILL 1991]
Debate resumed from 17 October 1991, on motion by Mr Connolly:
That this Bill be agreed to in principle.
MR SPEAKER: Is it the wish of the Assembly to debate this order of the day concurrently with the Compensation (Fatal Injuries) (Amendment) Bill 1991? There being no objection, that course will be followed. I remind members that, in debating order of the day No. 4, they may also address their remarks to order of the day No. 5.
MR STEFANIAK (10.15): I thank my two legal colleagues, former Judge Kelly and Peter Quinton, for a very lengthy and useful talk about these two Bills. The Liberal Party will be interested to see how they apply in practice. As a result of the discussions I have had with Judge Kelly and Mr Quinton, some of our fears have been allayed.
As the Attorney has stated, these Bills bring the ACT legislation into line with what occurs in practice and what has been occurring in our supreme courts in regard to contributory negligence in particular cases - certainly in cases of statutory liability since about the mid-1970s, effectively. It is worthwhile going into some of the history of this because some of our concerns were also expressed initially by the Law Society, which has a representative on the community consultative committee, and by the insurance companies. After further debate and reworking through this legislation, the fears of the Law Society have been overcome. The insurance companies were given further opportunities to put additional facts and figures, which I understand has not occurred.
Our concerns revolved around the fact that, if there were contributory negligence, that should be taken into account; but very good reasons are put forward as to why these Bills should be enacted to overcome that in certain circumstances. Indeed, there is a line of High Court authorities which was mentioned by the Attorney, the only hiccup being the case in 1943 of Piro v. W. Foster and Co. Ltd, which effectively is now mirrored by the ACT. I am told by Judge Kelly and Mr Quinton that the worst-case scenario cost to insurance companies as a result of this would be about $1m per annum. The judge thinks it is more likely to be about $100,000. He states that from his experience, and I am well aware of the very lengthy and detailed experience Judge Kelly has in this area of the law. He was a judge of the ACT Supreme Court for some 20 years and specialised in this type of law.
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