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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-17 Daily Xml
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STATUTES AMENDMENT AND REPEAL (FAIR TRADING) BILL

Final Stages

Consideration in committee of the House of Assembly’s message.

The Hon. G.E. GAGO: I move:

That the House of Assembly's amendment be agreed to.

The circumstances in which the requirement to provide services with due care and skill can be modified or excluded, obviously, have been the subject of some debate. The bill that was introduced in the other place originally contained an express provision that stated a modification or exclusion of liability would be void unless 'the consumer and any third party consumer are each of full age and capacity'. That provision was removed from the bill by an opposition amendment. Despite that amendment, neither a child nor parents, we believe, will be able to modify or exclude the child's right to have services supplied with due care and skill due to the effect of common law. However, as a result of the opposition's amendment, there is greater scope for a service provider to enter into an agreement, known as indemnity, that requires a third party to compensate the child.

The Independent Schools Association is concerned about that change and points out that schools could end up having to pay for the actions of service providers who fail to render services with due care. This amendment rectifies that situation. This could also apply, for instance, to a football club or some other sporting club that takes a team out for a special occasion such as horse riding and ends up being required to indemnify the service provider if one of the children is hurt. Clearly, that was not the intention of the amendment that was moved in this chamber. It was an unanticipated effect which we believe this amendment now rectifies.

The Hon. J.M.A. LENSINK: The opposition supports this amendment for the same reasons. It has much sympathy for the position of the Independent Schools Association in that, clearly, it does not want to be in a position where it needs to indemnify for injuries and so forth, which may well have been an unforeseen consequence of our prior amendment which was successful in this place. I commend the amendment to all members.

The Hon. D.G.E. HOOD: I place on the record that Family First also supports the amendment. I also commend the government for its quick response to this issue—and also the opposition. It came to our attention only yesterday morning and, through a quick series of phone calls, I think we have been able to rectify it in this chamber very quickly, and that is a credit to all concerned.

Motion carried.

The Hon. P. HOLLOWAY: Mr President, I draw your attention to the state of the council.

A quorum having been formed:

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