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Civil Liability Amendment Bill 2019 - Second Reading

7 August 2019
Rosalie Woodruff MP

Dr WOODRUFF (Franklin) - Madam Deputy Speaker, the Greens support this bill and the important clarification it makes to the current definition of 'recreational activity' by removing the reference of sport and bringing us in line with the wording of the initial Ipp Report and the intention of the Parliament of Tasmania when we enacted the Civil Liability Act 2002. As has been previously stated, it was not the intention of the Tasmanian parliament to preclude people who engage in dangerous activities as part of their work from eligibility to apply for a civil liability claim.

It is useful in this context to look back at the final report of the Ipp review that was provided in 2002. A major motivation for that review of the law of negligence came on the back of the insurance company HIH collapsing in 2001 and leaving public liability insurance unavailable or unaffordable, particularly for not-for-profit organisations.

The terms of reference for the inquiry were to look at options to exempt or limit liability for eligible not-for-profit organisations from damage claims for death or personal injury. The panel identified that there were very many not-for-profit organisations and, in aggregate, the activities they provide to society and members of the public involve considerable risk of suffering personal injury or death as a result of negligence.

They found there was no difference between not-for-profits and for-profits essentially in the activities they provide but they also found that not-for-profit organisations vary greatly in size, scale of activities and their financial turnover and, as a result, their ability to bear or spread the costs of liability for personal injury or death also varies greatly.

They also made the point that many of the activities not-for-profit organisations engage in and the services they provide involve the participation of young people and underprivileged and vulnerable members of society and, for all the reasons mentioned above, they did not believe it would be in the public interest to provide the not-for-profit sector with general limitation or general exemption for liability for negligently caused personal injury or death.

Following on from that, the other suggestion they investigated was some form of protection for the not-for-profit sector for liability for negligently caused personal injury or death within a specific category of activities, and that category of activities they investigated was recreational activities. Their consultations indicated that this area for not-for-profit organisations, particularly for those operating in rural and regional Australia - and this is relevant for Tasmania - faced particularly serious problems.

The Ipp review investigators were told that the activities of not-for-profit organisations - no surprises for us in Tasmania - play an essential role in maintaining social liability and quality of life in small rural communities. Here in Tasmania it is in fact an essential part of community life. The existence of not-for-profit organisations and the services the voluntary services provide are part of the integral fabric of Tasmania and one of the reasons we love the island we live on so much, because of the rich communities supported by voluntary organisations.

For that reason, the Ipp investigators struck a balance and identified a subclass of not-for-profit organisations that provide recreational services. They found there was a principal reason for treating recreational activities and recreational services as a special category for the purposes of person injury law, regardless of whether the provider of the service is a not-for-profit or for-profit organisation. Their reasoning was that people who participate in those activities often do so voluntarily and wholly or predominantly for self-regarding reasons.

Their final recommendation in respect to the bill we have before us today is that the provider of a recreational service should not be liable for personal injury or death suffered by a voluntary participant in a recreational activity as a result of the materialisation of an obvious risk. Clearly the matter we have before us is in relation to the words 'voluntary participant' when we are looking at people working in a profession or sport. They do not make a specific reference to the category of sports.

We support that this amendment bill is bringing us back into line and clarifying we will continue with the recommendations from that national expert panel that reviewed the law of negligence and we are happy to support the changes that have been made.

I want to make some comments about sporting activities in general and in particular the sporting activity of the case in the New South Wales Court of Appeal decision that has brought this amendment bill to us today. That decision related to the case of jockeys racing - Goode v Angland - in that the jockey, Mr Goode, was knowingly participating in a dangerous 'recreational activity (horse riding)'. I take exception to the definition of 'horseracing' as recreation. Horseracing is an industry. There is nothing recreational about it. It involves gambling and an industry that is designed to make money at the cost of the animal welfare of the horses involved.

Ms Archer - It is lawful.

Dr WOODRUFF - Yes, it is lawful, as the Attorney-General reminds us in this House, but the Greens and many people in Tasmania are deeply concerned that it remains so. Because of the way it is mismanaged and the way horses are treated in that industry, it is first and foremost about making profit and using animals to make that profit.

At the moment we have rivers of money flowing from the Liberal Government to support the Tasmanian racing industry at the same time as we have questions in parliament about the lack of ambulances on the road in southern Tasmanian and around Launceston, and at the same time as we are having ongoing public conversations about the lack of housing for people on cold winter nights in Tasmania. It is clearly the case that we can choose how we spend the money in Tasmania that we get from the revenue the Government has at its disposal.

The Greens have an alternative budget and it does not put money into the Tasmanian racing industry. Instead it prioritises that money in a way which is much more humane and is better for the welfare of people who need an inpatient bed in a hospital. That is how we were able to put more money into the hospital system in Tasmania, to be able to put more teachers into our schools, to put more social welfare, psychologists and speech therapists into schools and more money into supporting the integrity of the conservation and protection of our beautiful wild places and national parks. It is how we have been able to fund the staff who have been cut from the threatened species unit and how we have been able to put more people into biosecurity so that we can protect our industries, our agriculture from pests and weeds and other invasive species.

There are so many other ways that we can spend the money that we have in the budget other than putting it into the Tasmanian racing industry, other than putting it into an industry which is essentially about making private profit from the misery of the horses that are involved in that particular industry. We have the same view about the greyhound racing industry; it is a greyhound abuse industry. Anybody who has spent time with a rehomed greyhound feels sad in their heart at the thought of the abuse that they suffer on a track and the conditions that we have seen in Tasmania time and time again, the abuse that occurs with greyhounds who are involved in the racing industry.

We do not consider that to be a recreation but that is a side note to this bill. It is a point that needs to be made. It would be important to normalise the daily abuse and suffering of animals such as greyhounds and horses as recreation. We should not normalise gambling as a form of recreation. It is not an activity which is healthy to continue. It is an activity which, for many people, leads to an addiction. It leads them to spend more money and sometimes vastly more money, in fact their whole house, than they want to spend. We will continue to speak out against the normalisation of gambling and the abuse of animals for profit. They are not recreational activities.

I thank the Attorney-General for bringing this on and clarifying this as an issue because it is something for all not-for-profit organisations. Civil liability cases really cause people a great amount of heartache and they cause a huge amount of concern. People in not-for-profit organisations typically do not have a high level of professional expertise in the areas of civil liability and it is very concerning and threatening to think that they might be putting themselves and their organisation at risk if they do not correctly look after the public and the people involved in their activities.

Certainty in the area of what is exempt and what is not exempt under the law is very important. Perhaps the minister could make a comment about whether you would be providing some guidelines or some educational material? To which sectors you would be doing that if that is your intention to provide information about this change?