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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3298 ..
MR STEFANIAK (continuing):
today, pans out for community organisations. The liability will still attach to them, and more work will need to be done.
The individual, if acting in good faith and within the relevant restrictions in the bill, will be offered a measure of protection. That at least is an advance. But a lot more needs to be done. My colleague Mr Smyth has some bills on the table which address those issues. There are going to be further problems. I wonder whether this has been a particularly good advance for community organisations.
The bill codifies a number of aspects of the common law. I do not have any great drama with that. The bill, in covering wrongful acts or neglect causing death, codifies existing law. That will do absolutely nothing for the insurance crisis. The bill also deals with injuries arising from mental or nervous shock, again codifying effectively what has become the case law. I do not know whether that will reduce premiums.
There are some good aspects in the bill as it relates to contributory negligence. I am quite happy to see some of the improvements. The law will exclude a right of action for damages if the injured person's conduct contributed materially to the risk of injury or if the injured person was engaged in serious criminal activity. I have an amendment to that, but it is good to put that in the law. I am pleased to see that.
That exclusion does not apply when the criminal activity is causally irrelevant to the injury and negligence of the defendant. That is fine. When I was being briefed by the departmental officers, some good examples were given. The Chief Minister's speech refers to a collapsing shelf in a supermarket when the defendant in a criminal action-or plaintiff in the civil action-was shoplifting. Obviously an injury as a result has nothing to do with the criminal act and the person may be entitled to damages. The court retains a discretion there.
I am pleased to see the government support the proposition that a person who sustains injury whilst committing a serious offence should bear their own losses, if their criminal act substantially contributes to their losses. That is good.
It is good that the bill establishes a presumption of contributory negligence where a person is injured whilst under the influence of alcohol or under the influence of a drug, particularly in relation to motor vehicle offences. There is a rebuttal presumption if a plaintiff can establish that the intoxication was not self-induced, as with drink spiking, for example. There are checks and balances there. That is fine.
The bill also establishes a presumption of contributory negligence if a person chooses to rely on the skill and care of a person the plaintiff knows to be intoxicated. I have no problems with that. Ms Tucker mentioned the presumption of contributing negligence for a person who does not adhere to specified safety rules, rules we all are aware of, such as rules about wearing seatbelts or a helmet.
The bill also consolidates some reforms that allow a court to order compensation for loss of capacity to perform household or domestic services. It makes a number of other reforms. I will not comment on all of them. They are fine. The bill consolidates the revolutionary defamation laws passed in the Assembly in 2001. It also provides a modern restatement of the defence to an action for trespass to land. It provides
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