Tortfeasors and Contributory Negligence Amendment Act 2000

Tortfeasors and Contributory Negligence Amendment Act 2000

An Act to amend the Tortfeasors and Contributory Negligence Act 1954

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Tortfeasors and Contributory Negligence Amendment Act 2000 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the Tortfeasors and Contributory Negligence Act 1954 is referred to as the Principal Act.

4.   Long title amended

The long title to the Principal Act is amended by omitting "tortfeasors" and substituting "persons committing wrongful acts".

5.   Section 1 amended (Short title)

Section 1 of the Principal Act is amended by omitting "Tortfeasors and Contributory Negligence" and substituting "Wrongs".

6.    Section 2 amended (Interpretation)

Section 2 of the Principal Act is amended as follows:

(a) by omitting the definition of damage and substituting the following definition:

damage includes loss of life, personal injury, damage to property, economic loss and loss of any other kind;

(b) by omitting the definition of fault ;

(c) by omitting "counter-claims." from the definition of plaintiff and substituting "counter-claims;";

(d) by inserting the following definition after the definition of plaintiff :

wrongful act means an act or omission that –

(a) gives rise to a liability in tort or would, if it caused damage to another person, give rise to a liability in tort; or

(b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort; or

(c) amounts to a breach of a statutory duty –

and includes an act or omission on the part of a person suffering damage that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property.

7.    Section 3 amended (Proceedings against, and contribution between, wrongdoers)

Section 3 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "tort (whether a crime or not) –" and substituting "wrongful act –";

(b) by omitting from subsection (1)(a) "as a joint tortfeasor";

(c) by omitting from subsection (1)(b) "tortfeasors" first occurring and substituting "persons";

(d) by omitting from subsection (1)(b) "(whether as joint tortfeasors or otherwise)";

(e) by omitting from subsection (1)(c) "(whether as a joint tortfeasor or otherwise)";

(f) by omitting from subsection (1)(d) "settled; and" and substituting "settled.";

(g) by omitting paragraph (e) from subsection (1) ;

(h) by omitting from subsection (3) "joint tortfeasor" first occurring and substituting "person";

(i) by omitting from subsection (3)(a) "joint tortfeasor" and substituting "person";

(j) by omitting from subsection (3)(b) "joint tortfeasor" twice occurring and substituting "person";

(k) by omitting from subsection (3)(e) "joint tortfeasor" first occurring and substituting "person";

(l) by omitting from subsection (3)(e) "joint tortfeasor if that person's total claim had been paid by the other joint tortfeasor" and substituting "person if the total claim of the person by whom damage is suffered had been paid by the other person";

(m) by omitting from subsection (6) "commissioner of a court of requests, or justice," and substituting "magistrate";

(n) by omitting from subsection (7) "commissioner of a court of requests, or justice," and substituting "magistrate";

(o) by omitting from subsection (7) "commissioner, justice," and substituting "magistrate".

8.    Section 4 amended (Apportionment of liability in case of contributory negligence)

Section 4 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "his own fault" and substituting "that person's wrongful act";

(b) by omitting from subsection (1) "fault" second occurring and substituting "wrongful act";

(c) by omitting from subsection (1) "fault" third occurring and substituting "wrongful act";

(d) by omitting from subsection (2) "the claimant had not been at fault" and substituting "there had been no wrongful act by the claimant";

(e) by omitting from subsection (4) "his own fault" and substituting "that person's wrongful act";

(f) by omitting from subsection (4) "fault" second occurring and substituting "wrongful act";

(g) by omitting from subsection (5) "at fault" and substituting "who committed a wrongful act";

(h) by omitting from subsection (6) "the claimant had not been at fault" and substituting "there had been no wrongful act by the claimant";

(i) by omitting from subsection (7) "fault" twice occurring and substituting "wrongful act".

9.    Section 5 inserted

After section 4 of the Principal Act , the following section is inserted:

5.   Retrospective effect of Tortfeasors and Contributory Negligence Amendment Act 2000

The amendments to this Act made by the Tortfeasors and Contributory Negligence Amendment Act 2000 apply to and in respect of a cause of action arising before the commencement of that Act in the same way as they apply to and in respect of a cause of action arising after that commencement, but this Act, as so amended, has no effect in the case of –

(a) a cause of action in respect of which a court has given judgment or has reserved judgment (including in either case a judgment as to liability only), whether or not an appeal has been made against that judgment; or

(b) a cause of action in respect of which the parties have entered into an agreement to settle claims arising from that cause of action (including an agreement as to liability only).

10.   Substitutions

Each of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting "tortfeasor" on the number of occurrences specified in Column 2 of that Schedule and substituting "person".

SCHEDULE 1 - Substitutions

Section 10

[Second reading presentation speech made in:

House of Assembly on 13 APRIL 2000

Legislative Council on 24 APRIL 2000]