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Date:
Mon, 7 Aug 2006 17:54:09 +1000
From:
Neil Foster
Subject:
New Compensation Act for UK
Dear
Colleagues;
In
case it becomes relevant it may be worth noting that ss 1 and 2
have reasonably close equivalents in the Civil Liability Act
2002 (NSW). CA 2006 (UK) section 1 is similar to CLA 2002 (NSW)
s 5B(2)(d), which provides that
In
determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst
other relevant things) ... (d) the social utility of the activity
that creates the risk of harm.
It
seems that "social utility" is similar to the notion of
"desirability" (ie presumably something is "desirable"
not just because someone desires to do it, even if that someone
is a judge, but because there is some objective ie "social"
desirability?) Not much jurisprudence yet on the question of the
"social utility" of activities, though we do have some
obiter comment on it by Ipp JA in Waverley Council v Ferreira
[2005] NSWCA 418 at [50] (example of need to speed by an ambulance
taking a patient to hospital). In Haris
v Bulldogs Rugby League Club [2006] NSWCA 53 at [60] it
is suggested that football is a "socially useful" activity
(a proposition that might also find some support in the UK?).
CA
2006 (UK) section 2 is similar to CLA 2002 (NSW) s 69 - not much
reported on that yet either, but it does seem like a sensible provision
which may encourage people to take the sting out of harm they have
caused before it gets too far.
Regards
Neil Foster
Neil
Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>>
Richard Lewis 5/08/06 12:10:03 >>>
Members
may be interested in the new UK Compensation Act. The politics of
tort continues apace?
(The
new regulator of the claims companies is to be the former director
of the Association of British Insurers).
OPSI
website: 26 July 2006
Compensation Act receives Royal assent
The new Compensation Act 2006 has received Royal assent and is available
to download from the OPSI (formerly HMSO) website.
The amended Part 1, section 3 incorporates wording to overturn the
recent House of Lords decision of Barker v Corus.
http://www.opsi.gov.uk/acts/act26-07.htm
According
to the DCA
The
Compensation Act is an important step in tackling false perceptions
of a compensation culture. It will ensure that there is proper
regulation of those who manage compensation claims.
For
too long people have been pressured into making claims by "hard
sell" tactics and misled by inappropriate and aggressive
advertising. This legislation will make those who sell such services
conform to strict rules of conduct and deal with their clients
honestly.
Victims
of mesothelioma, a form of lung cancer, will also benefit from
the new Act. It will ensure that those suffering from mesothelioma
due to another's negligence will be able to receive full compensation
from any responsible person as quickly and easily as possible.
The responsible person will then be able to claim back contributions
from other responsible persons.
The
Act also confirms that courts considering what standard of care
is reasonable in a claim for negligence or breach of statutory
duty can take into account whether requiring particular steps
to be taken to meet the standard of care would prevent or impede
a desirable activity from taking place. This will improve awareness
of this aspect of the law and will help to ensure that normal
activities are not prevented because of the fear of litigation
and excessively risk averse behaviour.
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