A number of amendments to Queensland's Civil Liability Act, Limitation of Actions Act, Law Reform Act, Personal Injuries Proceedings Act, Motor Accident and Insurance Act and other related acts will come into effect in July 2010, with the objective to improve the responsiveness of Queensland's civil liability and personal injury regime.
Also, on 29 April 2010, it was announced that there will be reforms introduced to Queensland's workers compensation scheme to address the growth in common law claims and claims costs, and help secure WorkCover's financial stability. Legislation required to implement this reform package is expected to be introduced into Parliament by mid 2010. The Queensland government has stated that the effectiveness of the reform package will be monitored closely over the next two years with a review of the reforms scheduled to occur at the end of 2012.
Key amendments include:
Civil Liability Act
Increasing general damages awards
This is the first increase in general damages awards since the Civil Liability Act was introduced almost eight years ago. The increase is by about 18%. The increased amounts will apply to personal injuries occurring on and after 1 July 2010. The amendments will also allow the amounts to be reviewed annually.
- Allowing an injured claimant to claim compensation for the loss of their capacity to provide gratuitous domestic services to others.
This amendment will reinstate the common law entitlement to claim Sullivan v Gordon damages for the loss of a claimant's capacity to provide gratuitous domestic services to others where there is a genuine need for the provision of these services.
Limitation of Actions Act
- Abolishing the statutory limitation period for dust-disease related personal injury claims, except for claims relating to the use of tobacco or tobacco-related products.
The abolishment of this limitation period will be retrospective and will apply to all claims irrespective of when the injury arose. It was considered in the interest of public policy to enable such claims to be made without the added hurdle of statutory limitation issues.
Law Reform Act
- Allowing de-facto partners to claim for loss of consortium.
The previous reference to 'wife' has been changed to 'spouse' in order to ensure that a de-facto partner of an injured claimant can claim damages for loss of consortium. Damages for loss of consortium will be capped at $30,000 for an injury sustained prior to 30 June 2010 and $35,340 for an injury sustained on or after 1 July 2010.
Personal Injuries Proceedings Act & Regulations
- Starting urgent court proceedings by agreement.
Parties will be able to agree to the early commencement of court proceedings, rather than requiring the claimant to obtain the leave of the court.
It is often the case that a claimant needs to commence court proceedings before the requirements of the Personal Injuries Proceedings Act have been completed so that the court proceedings are commenced before the relevant limitation period expires. The Act states that court proceedings are stayed until the requirements of the Act have been completed.
- Removal of the requirement to sign a certificate of readiness.
Parties will no longer be required to sign a certificate of readiness for trial before the compulsory conference. Parties will now be required to sign a certificate of readiness for compulsory conference only.
- Increasing thresholds regarding costs.
The thresholds determining entitlement to costs will be increased. From 1 July 2010, a claimant will not be entitled to costs if the total damages are less than $35,340, and will only be entitled to capped costs of $2,950 if the total damages are between $35,340 and $58,900.
Proposed WorkCover reforms
- No restrictions to common law claims.
The Queensland Government has ruled out placing restrictions on injured workers' access to common law claims for compensation.
- Harmonisation with the Civil Liability Act.
It is proposed that common law WorkCover claims will be harmonised with arrangements under the Civil Liability Act in terms of liability (the required standard of care to be met), contributory negligence and caps on general damages and damages for economic loss.
General damages for pain and suffering which make up the smaller proportion of damages awards, and are relatively stable across different personal injury schemes will be capped at $300,000. Damages for economic loss (loss of future earnings) will be capped at three times Queensland Ordinary Time Earnings (QOTE) which is $176,607 per annum.
- Increasing the onus of proof to prove the employer was at fault.
Many common law claims are commenced based on the perception that strict liability attaches to an employer if a work injury has occurred, regardless of fault. Amendments are proposed which will require workers to show that an employer breached a duty to take precautions against a risk of harm that was foreseeable, not insignificant, and in circumstances in which a reasonable person would have taken the precautions.
This aligns with the existing standard required by the Civil Liability Act.
- Costs against plaintiffs whose cases are dismissed.
The provisions regarding costs that may be claimed where the court awards more or less than a party's final written offer of damages have been interpreted by the courts to mean that if the claim is dismissed, no costs are payable. Proposed amendments will allow the courts to award costs against a plaintiff whose claim is not successful.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.