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Legislative Assembly for the ACT: 2002 Week 9 Hansard (20 August) . . Page.. 2430 ..

MR STANHOPE (continuing):

contribution or indemnity against any other wrongdoer. The harsh operation of the common law has been relaxed in both cases.

Chapter 3 deals with liability for death or injury. The first part of the chapter deals with a wrongful act or neglect causing death. In the early 19th century, English civil law concluded that the death of a human being could not be complained of as an injury. Lord Campbell's act reversed this by far-reaching statutory reform in 1836; it provided compensation to the family of the deceased to prevent a family from falling into poverty. Since first being introduced, the legislation has been extended to cover a common law widow and then, more generally, a surviving de facto partner. It is as relevant today as it was when introduced 170 years ago. I call on members of this place to reaffirm and resist any erosion of the principles in this legislation.

The second part of the chapter deals with injury arising from mental or nervous shock. The common law originally provided no remedy for shock in the absence of bodily injury; mere sorrow or distress did not give rise to damages. These days an action for nervous shock can be successful. Even so, the amounts awarded are for less than for bodily injury.

The Law Reform (Miscellaneous Provisions) Act set out a statutory basis for the claim. As for the provisions dealing with fatal injuries, since first being introduced, the principle has been extended to cover a common law widow and then, more generally, a de facto partner.

Chapter 4 deals with damages and, in particular, the issue of contributory negligence. At common law, if harm was partially caused by a plaintiff's own contributory negligence, the plaintiff could not claim damages. The operation of the common law rule on contributory negligence has been relaxed for some time. This bill provides specific rules for courts in relation to contributory negligence when a plaintiff has engaged in particular types of conduct consistent with that position.

Firstly, it excludes the right of action for damages if the injured person's conduct contributed materially to the risk of injury and the injured person had been engaged in serious criminal activity. Exclusion does not apply when the criminal activity is causally irrelevant to the injury and to the negligence of the defendant. For example, liability would not be excluded if a plaintiff took a supermarket item intending to steal it but then at some later stage prior to exiting the checkout was injured by a falling display shelf.

The court retains discretion to award damages if the circumstances are exceptional and the principle would operate harshly and unjustly-for example, where the plaintiff is a child and a principle of common humanity might otherwise exist. The government supports the proposition that a person who sustains injury while committing a serious offence should bear their own losses.

Secondly, the bill establishes a presumption of contributory negligence where a person is injured while under the influence of alcohol or a drug, particularly in relation to motor vehicle accidents. The presumption that intoxication can contribute to an accident can be rebutted where the plaintiff establishes that the intoxication was not self-induced or had nothing to do with the accident. For example, an intoxicated passenger quietly sitting in

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