Edition 09/2002
First Report of
Negligence Review Panel Released
The
July 2002 edition of the IEA Sport Monthly Update reported that
Senator Helen Coonan had announced the establishment of a high level
Panel chaired by the Honourable Justice David Ipp to review the Law of
Negligence. On 2nd
September Senator Coonan released the first report of this review
Panel, commenting that it contained a number of very significant
proposals in regard to addressing the issue of restoring balance to
the legal system. She
stated that they would be carefully considered by the Commonwealth and
urged State and Territory Governments to do likewise.
This Update edition advises on the contents of this report.
It
is the Panel’s view that in order for law reform to be effective,
reforms to personal injury law must provide a uniform scheme
regardless of the legal category under which a claim is brought.
The Panel unqualifiedly supports the desirability of a national
response to be incorporated in a single statute.
The law would need to be incorporated in each jurisdiction –
the Commonwealth (where relevant) and each State and Territory.
The legislative scheme should apply (unless expressly provided
to the contrary) to any claim for damages for personal injury or death
resulting from negligence regardless of whether the claim is brought
in tort, contract, equity, under statute (such as Trade Practices Act
1974, or State and Territory Fair Trading Acts) or any other cause of
action.
Rather
than adopt the approach of a general exemption for Not For Profit
Organisations the Panel has preferred to address the need to strike a
better balance between the various interests at stake.
Not for Profits vary considerably in size and scope, and the
risks associated with them are no different to those presented by
similar activities conducted on a commercial basis.
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A
change recommended by the Panel that will assist Not For Profit and
community activities, as well as activities more broadly, is that the
provider of a recreational service should not be liable for personal
injury or death suffered from a voluntary participant in a
recreational activity as a result of the materialisation of an obvious
risk. An obvious risk is
one that, in the circumstances, would have been obvious to a
reasonable person in the position of the participant, including
matters of common knowledge. The
rationale for this approach is that people who participate in such
activities do so voluntarily and for their own enjoyment.
In
line with this basic principle that people should take responsibility
for their own safety, the Panel has recommended that the law be
amended so that a person cannot be held liable for a failure to warn
of obvious risks. The
Panel’s recommendation would apply broadly and would have particular
applicability to the liability of occupiers of land. Currently, the failure of a land occupier to provide warnings
of dangers may constitute negligence, even though the occupier could
not reasonably be expected to remove the danger.
As
it becomes more difficult for plaintiffs to succeed in claims based on
negligence, lawyers will inevitably search for alternative causes of
action on which to base the same claim.
The Trade Practices Act and equivalent provisions in State and
Territory law provide potential sources for claims for personal injury
and death. The Panel
recommends that the Trade Practices Act should be amended to ensure
that actions taken under the Act are not more attractive or available
than actions under the general law of negligence.
These amendments relate to Part IVA (unconscionable conduct),
Part V Div 1A (product safety and product information) and Part V Div
2A (liability of manufacturers and importers of goods).
To the extent that legislative changes are made to limit the
potential use of the Trade Practices Act for claims for personal
injury and death, similar changes should be made to State and
Territory legislation containing similar provisions.
Continued
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