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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3348 ..

MR STANHOPE (continuing):

Mr Deputy Speaker, during discussion, it was argued that part 8.1, dealing with occupiers liability, should be removed from the bill because it is already dealt with by the common law. While it is not intended to change the law, the statutory provisions give effect to the law as it presently is and make this area of the law more accessible. If it is desirable to change the law at some time in the future, this can be attended to by the legislature.

In discussions, the concern was raised that, in giving the provision a statutory form, the bill might prove more generous for claimants because of the indirect effect of a relaxation of the rules of contributory negligence in subsection 41 (2) of the bill. Subsection 41 (2) provides that, if a wrong was a breach of a statutory duty, the damages must not be reduced because of a claimant's contributory negligence. It was not intended that subsection 41 (2) of the bill apply to the provision. Accordingly, the amendment disapplies subsection 41 (2) from part 8.1.

Amendment agreed to.

Clause 101, as amended, agreed to.

Clauses 102 to 112, by leave, taken together and agreed to.

Clause 113.

MS TUCKER (4.59): I move amendment No 2 circulated in my name [see schedule 2 at page 3371].

In the absence of any real evidence that lawyer costs are the real problem when it comes to the insurance business, the whole of part 10 appears to be more a sop to the lawyer bashers than a significant real and concrete step towards delivering a more efficient and equitable system. In this case, part 10.1, the government has proposed limiting legal costs to $10,000 or 20 per cent for small claims.

At 5.00 pm, in accordance with standing order 34, the debate was interrupted. The motion for the adjournment of the Assembly having been put and negatived, the debate was resumed.

MS TUCKER: As I was saying, the government has proposed limiting legal costs to $10,000 or 20 per cent for small claims-under $50,000. While this restriction is proposed to apply equally to defendants, usually insurance companies, and plaintiffs, it will impact on plaintiffs and their lawyers, not the defendants. When someone who is looking for compensation goes to a lawyer the clock will start ticking and there will be the lodging of papers, the contacting of experts, the commissioning of reports, the contacting of claims managers and so on. Anyone who works in the business will know what this is about.

The defendants, of course, will be using claims managers and other internal professionals. Even their legal expertise will be on retainer. The limited entitlement to legal costs won't even be touched on. Of course, once you get to court the costs move faster. With such an imbalance in what is, in effect, available resources to the adversaries, there will be some perverse encouragement for a defendant to prolong

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