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2002-2003-2004
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
TRADE
PRACTICES AMENDMENT (PERSONAL INJURIES
AND
DEATH) BILL (NO. 2)
2004
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on
behalf of the Government
(Circulated by
authority of the Minister for Revenue and Assistant
Treasurer,
Senator the Hon Helen
Coonan)
Trade Practices
Amendment (Personal Injuries and Death) Bill (No. 2) 2004
iii
Table of
Contents
Outline..................................................................................................................1
Financial
Impact
Statement..................................................................................3
Notes
on Individual Clauses
................................................................................4
Trade
Practices Amendment (Personal Injuries and Death) Bill (No. 2) 2004
1
1
Outline
1.1
The Trade Practices Amendment
(Personal Injuries and
Death)
Bill (No. 2) 2004
will amend the
Trade Practices Act 1974
to provide that
the
rules relating to limitations of
actions and quantum of damages
recommended
by the
Review of the Law of Negligence
are incorporated into certain parts
of
the
Trade Practices Act
1974. These rules will apply to any
claim for personal
injuries or death
brought under Part IVA in the form of an
unconscionable
conduct claim, a
contravention of the product safety and information
provisions
(Division 1A of Part V), a
supply by a manufacturer or importer
of
unsatisfactory consumer goods
(Division 2A of Part V) or a supply by
a
manufacturer or importer of defective
goods (Part VA). These
arrangements
will be set out in a new
Part VIB.
1.2 These amendments will
introduce amendments to the
Trade
Practices
Amendment
(Personal Injuries and Death) Bill (No. 2)
2004. This will
provide
special arrangements for Part
VIB proceedings in respect of the death
or
personal injury to a person
resulting from smoking or other use of
tobacco
products.
1.3
These Part VIB proceedings will be subject to a limitation period
of
three years from the date of
discoverability. The arrangements for quantum
of
damages in Division 3, 4, 5 and 6 of
the Trade Practices Amendment
(Personal
Injuries and
Death) Bill (No. 2) 2004 will not
apply to proceedings in respect of
the
death or personal injury to a person resulting from smoking or other use
of
tobacco products. This will mean
that the limits for non-economic loss, loss
of
earnings capacity, damages for
gratuitous care, future economic
loss,
superannuation entitlements,
interest rate on damages and exemplary
damages
will not apply to proceedings
in respect of the death or personal injury to
a
person resulting from smoking or
other use of tobacco
products.
Outline
2
Trade Practices Amendment (Personal Injuries and Death) Bill (No. 2)
2004
1.4 These proceedings will be
subject to the arrangements in Division
2
(relating to limitation periods) and
Division 7 (relating to
structured
settlements).
Trade
Practices Amendment (Personal Injuries and Death) Bill (No. 2) 2004
3
2
Financial
Impact Statement
2.1 These
amendments will have no significant financial impact.
However,
the reforms to the law of
negligence made by States and Territories will
have
some impacts on the
Commonwealth.
4 Trade
Practices Amendment (Personal Injuries and Death) Bill (No. 2)
2004
3
Notes
on Individual
Clauses
Schedule 1 —
Amendments
3.1 Schedule 1 inserts a
number of items that will amend the
Trade
Practices
Act 1974.
Item 1 — 87D
Definitions
3.2 Item 1 will insert
a number of definitions into section
87D.
3.3
Smoking
will have the same meaning as in
the Tobacco
Advertising
Prohibition
Act
1992.
3.4
Tobacco product
will have the same meaning as in
the
Tobacco
Advertising
Prohibition Act
1992.
Item
2 — 87E Proceedings which this Part
applies
3.5 Item 2 will substitute
a new section 87E.
3.6 Part VIB will
apply to personal injury damages proceedings in
relation
to the unconscionable conduct
provisions (Part IVA), the product safety
and
information provisions (Division 1A
of Part V), a supply by a manufacturer
or
importer of unsatisfactory consumer
goods (Division 2A of Part V) and
the
supply by a manufacturer or
importer of defective goods (Part
VA).
3.7 Proceedings in respect of the
death or personal injury to a
person
resulting from smoking or other
use of tobacco products will be subject to
the
Notes on Individual
Clauses
Trade Practices
Amendment (Personal Injuries and Death) Bill (No. 2) 2004
5
arrangements in Division 2
(relating to limitation periods) and Division
7
(relating to structured
settlements).
Items 3 — 4
— 87F Basic Rule
3.8 Items 3
and 4 will make changes to section
87F.
3.9 Item 3 will insert a new
subsection 87F(1A). This will establish
that
Part VIB proceedings in respect of
the death or personal injury to a
person
resulting from smoking or other
use of tobacco products are exempt from
the
operation of the long stop period
in subsection 87(1)(b).
3.10 Item 4
will insert a new diagram in subsection 87F(2). This diagram
has
been amended to incorporate the
arrangements for proceedings in respect of
the
death or personal injury to a
person resulting from smoking or other use
of
tobacco products.