Public Liability - an update
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 11/2002 by Roza Lozusic
|This is an update to an earlier Briefing Paper on Public Liability published in May this year. The earlier paper dealt with the public liability 'crisis' or the increase in premiums and lack of availability of public liability insurance cover, the causes of such increases as well as proposed options for reform.|
The 'crisis' led to various calls for reform from Members of Parliament, the media and various sections of the community, particularly adventure tourism operators, sporting groups, community organisations and others who were experiencing difficulty locating and/or affording insurance cover.
The response to the calls for reform included: two national ministerial meetings on the issue; the establishment of a Senate Inquiry; ACCC monitoring; a benchmarking study of Australian insurers' claims management practices; the introduction of legislation to remove tax barriers to structured settlements; the introduction of legislation to amend the operation of the Trade Practices Act 1974 (Cth); and the establishment of a Negligence Review Panel to investigate reforming negligence so as to limit claims.
Throughout all of the above activity the NSW Government has been proactive in announcing and implementing various reform proposals. Stage 1 was implemented in May/June this year and Stage 2 is due to be introduced in the spring session of parliament.
Both Stage 1 and Stage 2 of the NSW Government's reform proposal have attracted considerable attention and debate. The tort law reform of negligence in general has attracted considerable commentary which is split between those who view such reform as being unnecessary - due to the belief that it will have a limited effect on insurance affordability or availability - and those who believe it is necessary in order to alleviate pressure on the number and cost of claims.
Amidst all of this have been calls for such reforms to proceed with caution and with proper and full consultation and investigation. This is because of the extensive nature of such reforms, and the scale of the proposals. The Premier himself has stated that there "...is no precedent for what we are doing...we are changing a body of law that has taken the courts 70 years to develop."
To date the Negligence Review Panel is due to publish its report on 30 August 2002. The report was released on Monday 2 September 2002. The recommendations will form a platform for possible negligence reform in various jurisdictions.
Whilst there has been some indication as to what the Stage 2 reforms will include, it is yet to be seen what the proposal will fully encompass.
The background section of this paper provides a brief chronology of events. (pp 1-6)
Section 1 outlines in brief the Stage 1 reforms which were implemented earlier this year. (pp 6-9)
Section 2 contains background information to tort law reform and outlines some general comments by stakeholders with respect to such reform. (pp 10-14)
Section 3 outlines the Stage 2 reform proposals, based on the announcement of the Premier Bob Carr MP on 11 June 2002 - and will detail what the proposals encompass and what the stakeholder views are on such proposals. (pp 17-44)
Section 4 outlines other reform proposals considered nationally, such as uniform and consistent statute of limitation periods for personal injury actions throughout the states. (pp 45-57)