Div 8AActions in respect of injuries arising on or after 20 October 1999 but before 1 July 2014

Division 8A—Actions in respect of injuries arising on or after 20 October 1999 but before 1 July 2014 S. 134AA inserted by No. 26/2000 s. 18, amended by No. 67/2013 s. 638(2). 134AA Actions for damages A worker who is or the dependants of a worker who are or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014 shall not, in proceedings in respect of the injury, recover any damages in respect of pecuniary loss except— (a) in proceedings in respect of an injury or death arising out of a transport accident within the meaning of the **Transport Accident Act 1986** on or after 20 October 1999— (i) otherwise than under Part III of the **Wrongs Act 1958**, against the employer or any other person, subject to and in accordance with the **Transport Accident Act 1986**; or (ii) under Part III of the **Wrongs Act 1958** against the employer or the employer and any other person, subject to and in accordance with the **Transport Accident Act 1986**; or (iii) under Part III of the **Wrongs Act 1958** against a person other than the employer, subject to and in accordance with the **Transport Accident Act 1986**; or (b) in proceedings to which the employer is not a party where, by reason of section 83(1), the injury is deemed to have arisen out of or in the course of employment, if the worker's place of employment is a fixed place of employment and the injury did not occur while the worker was present at that fixed place of employment. S. 134AB inserted by No. 26/2000 s. 18. 134AB Actions for damages S. 134AB(1) amended by No. 67/2013 s. 638(3). (1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014— (a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except— (i) in accordance with the **Transport Accident Act 1986** and subsections (25)(b), (26) and (36)(b) of this section; or (ii) in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of this section; or (iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and (b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except— (i) in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or (ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section. S. 134AB(2) amended by Nos 95/2003 s. 3(8), 67/2013 s. 638(3). (2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999 but before 1 July 2014. S. 134AB(3) substituted by No. 102/2004 s. 6(1), amended by No. 80/2010 s. 64(1)(a). (3) Subject to subsection (4A), a worker may not bring proceedings in accordance with this section unless— (a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or (b) subject to any directions issued under section 134AF, the worker elects to make an application under subsection (4) on the ground that the worker has a serious injury within the meaning of this section. S. 134AB(4) substituted by No. 102/2004 s. 6(1), amended by No. 80/2010 s. 64(1)(b). (4) Subject to subsection (4A), a worker may only make an application— (a) if subsection (3)(a) applies, after the worker— S. 134AB (4)(a)(i) amended by No. 41/2006 s. 24(a). (i) has advised the Authority or self-insurer under section 104B(6B) or 104B(7B) that he or she accepts the determinations of degree of impairment; or (ii) has received the advice of the Authority or self-insurer under section 104B(10); or (b) if subsection (3)(b) applies— (i) after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred; or S. 134AB (4)(b)(ii) amended by No. 41/2006 s. 24(b). (ii) if an application had been made under section 104B as in force before the commencement of section 5 of the **Accident Compensation Legislation (Amendment) Act 2004**, subject to sections 104B(21), 104B(22) and 104B(23). S. 134AB(4A) inserted by No. 80/2010 s. 64(2). (4A) If a worker has made a claim for compensation under section 98C in respect of an injury, the worker must not make an application under subsection (4) in respect of that injury unless— (a) the degree of impairment resulting from the injury has been determined in accordance with section 104B; and (b) the worker has accepted the determination of the degree of impairment; and (c) the worker has accepted the entitlement to compensation. S. 134AB(5) substituted by No. 9/2010 s. 57(1). (5) An application under subsection (4) must— (a) be in a form approved by the Authority; and (b) be accompanied by an authority in a form approved by the Authority, signed by the worker, authorising the release of medical information to the Authority or a self-insurer relevant to the application; and (c) be accompanied by— (i) a copy of all medical reports; and (ii) affidavits attesting to other material— existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings. S. 134AB(5AA) inserted by No. 9/2010 s. 57(1). (5AA) An authority to release information referred to in subsection (5)(b) has effect and cannot be revoked by the worker— (a) until all proceedings brought in accordance with this section have been heard and determined or compromised; or (b) the worker withdraws his or her application. S. 134AB(5A) inserted by No. 102/2004 s. 7. (5A) A copy of any claim under section 104B referred to in subsection (3) and of an application under subsection (4) must be served on each person against whom the applicant claims to have a cause of action. (6) If the worker unreasonably refuses to comply with a request by the Authority or self-insurer that the worker submit to a medical examination, to be paid for by the Authority or self-insurer, or in any way hinders such an examination, the period between the date on which the worker so refused to comply, or hindered the examination, and the date of the examination must be disregarded in calculating the period referred to in subsection (7). S. 134AB(6A) inserted by No. 10/2022 s. 12(1). (6A) In calculating a period of time for the purpose of subsection (7), (10), (11), (12), (13), (14) or (16), the period from 24 December to 9 January next following must be disregarded. (7) The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing— (a) that the worker is deemed to have a serious injury; or (b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a). (8) The advice referred to in subsection (7)(a) must be accompanied by— (a) a copy of all medical reports; and (b) affidavits attesting to such other material— existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings. (9) If the Authority or self-insurer fails to advise the worker in writing within the period referred to in subsection (7) as required by subsection (7), the worker is deemed to have suffered a serious injury. (10) The worker, within 28 days after receiving the advice referred to in subsections (7) and (8), may give to the Authority or self-insurer an affidavit attesting to such further material (whether or not existing before the worker made the application under subsection (4)) in rebuttal of the material (other than medical reports) attested to in affidavits accompanying the advice. (11) In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence— (a) on behalf of the Authority or self-insurer if— (i) it was in existence, and the employer, Authority or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority or self-insurer is required to be given under subsections (7) and (8); and (ii) it had not been disclosed to the worker in accordance with subsections (7) and (8); or (b) on behalf of the worker if— (i) it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (7) and (8); and (ii) it had not been disclosed to the other party in accordance with subsection (5) or (10). S. 134AB(12) amended by No. 82/2001 s. 22(1)(a). (12) The worker must not commence proceedings in accordance with this section, other than an application under subsection (16)(b) or the commencement of proceedings with the consent of the Authority under subsection (20) or (20A), unless— (a) the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and (b) the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and (c) if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and (d) the Authority or self-insurer does not accept that counter offer within 21 days after it is made; and (e) the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under subsection (14), not more than 30 days after the day on which the counter offer is deemed to have been made. (13) If the Authority or self-insurer does not make a statutory offer under subsection (12), the Authority or self-insurer is deemed, for the purposes of that subsection, to have made, on the 60th day after the response date, a statutory offer of nothing. (14) If the Authority or self-insurer makes a statutory offer under subsection (12) and the worker does not make a statutory counter offer under that subsection, the worker is deemed, for the purposes of that subsection, to have made, on the 21st day after the statutory offer was made, a statutory counter offer of the maximum amount that may be awarded as damages under subsection (22)(a) and (b). S. 134AB(15) amended by No. 102/2004 s. 6(2). (15) If the assessment under section 104B made before an application under subsection (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section. (16) If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless— (a) the Authority or self-insurer— (i) is satisfied that the injury is a serious injury; and (ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or (b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings. (17) For the purposes of paragraphs (a) and (b) of subsection (16), a worker who satisfies subparagraph (i) of subsection (38)(b) but not subparagraph (ii) of that subsection, is entitled to bring proceedings in accordance with subsection (16)(b) for the recovery of damages for pain and suffering only. (18) A copy of an application under subsection (16) must be served on the Authority or self-insurer and on each person against whom the applicant claims to have a cause of action. (19) For the purposes of subsection (16)(b)— (a) a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury; (b) for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability; S. 134AB(19)(c) repealed by No. 9/2010 s. 57(2). S. 134AB(19A) inserted by No. 9/2010 s. 57(3). (19A) Any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of damages brought in accordance with this section which is heard and determined on and from the commencement of section 57(3) of the **Accident Compensation Amendment Act 2010**. S. 134AB(20) amended by No. 82/2001 s. 22(1)(b)(ii). (20) If, on the application of a worker, the Authority is satisfied that— (20)(a) amended by No. 82/2001 s. 22(1)(b)(i). (a) the worker is unable to commence proceedings in accordance with this section because of the operation of subsection (16)(b); and (20)(b) amended by No. 82/2001 s. 22(1)(b)(i). (b) the failure to comply with subsection (16)(b) was not due to any fault or omission of the worker or the worker's legal representative— the Authority may consent to the bringing of an application under subsection (16)(b). S. 134AB(20A) inserted by No. 82/2001 s. 22(2). (20A) If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this section because of the operation of subsection (12), on the application of the worker the Authority may consent to the commencement of proceedings— (a) either— (i) earlier than 21 days after the date the counter offer is made; or (ii) later than 51 days, but no later than 81 days, after that date— if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or (b) later than 81 days after the date the counter offer is made if the Authority is satisfied that the failure to comply with subsection (12) was not due to any fault or omission of the worker or the worker's legal representative. S. 134AB(20B) inserted by No. 82/2001 s. 22(2). (20B) The Authority may consent to the commencement of proceedings under subsection (20A) even though the relevant time limit expired before the date of commencement of section 22 of the **Accident Compensation (Amendment) Act** **2001**. S. 134AB(21) substituted by No. 9/2010 s. 57(4). (21) If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury. S. 134AB(21A) inserted by No. 102/2004 s. 6(3). (21A) If after a worker has failed to satisfy a court that the relevant injury is a serious injury on an application for leave to bring proceedings in accordance with subsection (16)(b), the worker obtains under section 104B determinations that the degree of impairment of the worker is 30 percentum or more, the worker is not entitled to recover damages for the same relevant injury. (22) A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury— (a) pecuniary loss damages— S. 134AB(22) (a)(i) amended by Nos 102/2004 s. 40(e), 80/2010 ss 81(b), 83(d), 67/2013 s. 633(d). (i) if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** and before the reduction (ifany) under subsection (25), is less than $56 650 or that amount as varied in accordance with Division 2D of PartIV as at the date of the award; or S. 134AB(22) (a)(ii) amended by Nos 102/2004 s. 40(f), 80/2010 ss 81(b), 83(e), 67/2013 s. 633(e). (ii) in excess of $1 275 570 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (b) pain and suffering damages— S. 134AB(22) (b)(i) amended by Nos 102/2004 s. 40(g), 80/2010 ss 81(c), 83(f), 67/2013 s. 633(f). (i) if the total pain and suffering damages assessed, before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** and before the reduction (ifany) under subsection (25), is less than $54 730 or that amount as varied in accordance with Division 2D of PartIV as at the date of the award; or S. 134AB(22) (b)(ii) amended by Nos 102/2004 s. 40(h), 9/2010 s. 55, 80/2010 s. 81(c), 83(g), 67/2013 s. 633(g). (ii) in excess of $555 350 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (c) damages of any other kind, other than damages in the nature of interest. (23) In the trial of a proceeding brought under this section, a jury must not be informed— (a) of the monetary thresholds and statutory maximums specified by or under subsection (22); or (b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury; or (c) that the Authority or self-insurer has been satisfied that the injury is a serious injury; or (d) that the Authority or self-insurer has issued a certificate under subsection (16)(a). (24) Damages awarded under this section in respect of pecuniary loss shall not include damages in respect of— (24)(a) amended by No. 80/2010 s. 78(q). (a) any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in Division 2B of Part IV; or (b) the value of services of a domestic nature or services relating to nursing and attendance— (i) which have been or are to be provided by another person to the person in whose favour the award is made; and (ii) for which the person in whose favour the award is made has not paid and is not and will not be liable to pay. (25) If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect ofproceedings referred to in subsection (1), the amount of the judgment, order for damages, settlement or compromise must be reduced by— S. 134AB(25)(a) amended by No. 48/2017 s. 5. (a) to the extent that it is in respect of pecuniary loss, the amount of compensation (if any) paid otherwise than under section 98C, 98Eand Division 2B of Part IV or to the extent that section 93(10)(a) of the **Transport Accident Act 1986** applies, except any suchcompensation paid in respect of the whole or any part of the period of 18 monthsafter the relevant transport accident; (b) to the extent that it is in respect of non‑pecuniary loss, the amount of compensation (if any) paid under section 98C and 98E. (26) If the amount of a judgment is subject to a reduction under subsection (25), that reduction must be made before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** is made. (27) Subject to the rules of the court— (a) in proceedings relating to an application for leave of the court under subsection (16), costs are to be awarded against a party against whom a decision is made; and (b) unless subsection (28) applies in proceedings for the recovery of damages in accordance with this section— (i) if no liability to pay damages is established, costs are to be awarded against the claimant; and (ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and (iii) if damages are awarded, costs are to be awarded against the Authority or self-insurer. (28) In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12)— S. 134AB (28)(a) amended by No. 10/2022 s. 12(2). (a) if no liability to pay damages is established, the worker must pay the costs assessed on the standard basis of the employer, Authority or self-insurer and the worker's own costs; S. 134AB (28)(b) amended by No. 10/2022 s. 12(2). (b) if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under subsection (12) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's costs assessed on the standard basis and its own costs; S. 134AB (28)(c) amended by No. 10/2022 s. 12(2). (c) if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under subsection (12), the worker must pay the costs assessed on the standard basis of the Authority or self-insurer and the worker's own costs; (d) if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under subsection (12) but less than 90 per cent of the worker's statutory counter offer under that subsection, each party bears its own costs— and the court must not otherwise make an order as to costs. S. 134AB(28A) inserted by No. 9/2010 s. 57(5). (28A) For the purposes of determining a liability to pay costs, or an entitlement to be paid costs, under subsection (28)(b), (c) or (d), if the amount of a judgment, order for damages, settlement or compromise is required to be reduced under subsection (25), the amount of the reduction must be the amount of compensation paid— (a) to the date of the statutory counter offer under subsection (12); or (b) to the date of the deemed statutory counter offer under subsection (14). S. 134AB(28B) inserted by No. 9/2010 s. 57(5). (28B) A reduction under subsection (28A) must be made before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** is made. (29) For the purpose of the taxing of costs in proceedings to which this section applies, any applicable scale of costs has effect as if amounts in the scale were reduced by 20 per cent. (30) A person who represents or acts on behalf of a worker is not entitled— (a) to recover any costs from that worker in respect of any proceedings under this section; or (b) to claim a lien in respect of those costs; or (c) to deduct those costs from any sum awarded as damages— unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this section by the worker. (31) The court, on the application of— (b) the person representing or acting on behalf of the worker— may determine the amount of costs to be awarded to the person representing or acting on behalf of the worker. (32) Where an award of damages in accordance with this section is to include an amount, assessed as a lump sum, in respect of damages for future loss which is referable to— the present value of the future loss must be qualified by adopting a discount rate of 6 per centum in order to make appropriate allowance for inflation, the income from investment of the sum awarded and the effect of taxation on that income. (33) Except as provided by subsection (32), nothing in that subsection affects any other law relating to the discounting of sums awarded as damages. (34) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award. (35) Except as provided by subsection (34), nothing in that subsection affects any other law relating to the payment of interest on any amount of damages, other than special damages. (36) If judgment is obtained, or a compromise or settlement made in respect of proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable— S. 134AB (36)(a) amended by Nos 41/2006 s. 15(4), 9/2010 s. 57(6). (a) where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or (b) where pain and suffering damages are awarded, to make payments under section 98C or 98E in respect of the injury. S. 134AB(36A) inserted by No. 9/2010 s. 57(7). (36A) If judgment is obtained, or a compromise or a settlement is made, in respect of proceedings referred to in subsection (1) and the worker was, at the date of the judgment, compromise or settlement, still in receipt of compensation in the form of weekly payments, where pecuniary loss damages are awarded against the Authority, employer or self-insurer, the Authority, employer or self-insurer must, until the date on which a cheque is drawn for the purpose of payment of the judgment, compromise or settlement, pay to the worker a weekly amount equal to the net weekly amount that, but for subsection (36), would have been payable to the worker as compensation in the form of weekly payments in respect of the injury. S. 134AB(36B) inserted by No. 9/2010 s. 57(7). (36B) Subsection (36A) applies only in respect of proceedings referred to in subsection (1) against a sole defendant where that sole defendant was the worker's employer at the date of the injury the subject of the proceedings. S. 134AB(36C) inserted by No. 9/2010 s. 57(7). (36C) An amount paid in accordance with subsection (36A) is, to the extent of the payment, part satisfaction of the liability in respect of the judgment, settlement or compromise. (37) In this section— S. 134AB(37) def. of *determination date* amended by No. 102/2004 s. 8(1)(2). ***determination date***, in relation to an injury, means the date on which— (a) if the worker is assessed under section 104B to have a degree of impairment of 30 per centum or more, the date on which the worker receives advice under subsection (7); or (ab) if the Authority or self-insurer fails to advise the worker in writing as required by subsection (7) within the period referred to in subsection (7), the date on which under subsection (9) the injury is deemed to be a serious injury; or (b) if the worker is assessed under section 104B to have a degree of impairment of less than 30 per centum, the date— (i) on which a certificate is issued under subsection (16)(a) in relation to the injury; or (ii) unless subparagraph (iii) applies, on which a court gives leave under subsection (16)(b); or (iii) on which any appeal by the Authority or a self-insurer against a decision of a court to give leave under subsection (16)(b) is determined— ***medical report*** means— (a) a statement in writing on medical matters concerning the worker, made by a medical practitioner; and (b) includes any document which the medical practitioner intends should be read with the statement, whether the document was in existence at the time the statement was made or was a document which he or she obtained or caused to be brought into existence subsequently; ***pain and suffering damages*** means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life; ***pecuniary loss damages*** means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage; ***response date*** means the date on which the period of 28 days after the determination date expires; ***serious injury*** means— (a) permanent serious impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) permanent severe mental or permanent severe behavioural disturbance or disorder; or (d) loss of a foetus. (38) For the purposes of the assessment of ***serious injury*** in accordance with subsections (16) and (19)— (a) the following definitions apply— ***foetus*** has the same meaning as in section 98C(5); ***income from personal exertion*** has the same meaning as in section 6(2) of the **Transport Accident Act 1986**; (b) the terms ***serious*** and ***severe*** are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to— (i) pain and suffering; or (ii) loss of earning capacity— when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively; (c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable; (d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe; (e) where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self‑insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that— (38)(e)(i) amended by No. 67/2013 s. 638(4) (as amended by No. 44/2014 s. 24(32)). (i) at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in item 1 of Schedule 1A or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and (38)(e)(ii) amended by No. 67/2013 s. 638(4) (as amended by No. 44/2014 s. 24(32)). (ii) the worker (including a worker referred to in item 1 of Schedule 1A or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more; S. 134AB (38)(f) substituted by No. 9/2010 s. 57(8)(a). (f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing— (i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is— (A) earning, whether in suitable employment or not; or (B) capable of earning in suitable employment— as at that date, whichever is the greater, and— (ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred; (g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred; (h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of ***serious injury*** and not otherwise; (i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of ***serious injury*** and not otherwise; S. 134AB (38)(j) amended by No. 9/2010 s. 57(8)(b). (j) the assessment of ***serious injury*** shall be made at the time that the application is heard by the court, unless sections 134ABAA and 135BBA apply; (k) the monetary thresholds and statutory maximums specified by or under subsection (22) must be disregarded for the purposes of the assessment of ***serious injury***. S. 134ABAA inserted by No. 9/2010 s. 58. 134ABAA Determination of serious injury application following death of worker (a) a worker dies; and (b) the worker made an application served under section 134AB(4) before his or her death; and (c) at the time of the worker's death— (i) the application of the worker was pending; or (ii) the worker had issued proceedings seeking the leave of the Court to commence proceedings following the rejection of the application of the worker by the Authority or a self‑insurer; or (iii) the period specified in section 134AB(16)(b) within which a worker is required to institute proceedings had not expired; and (d) the worker's death was not caused or materially contributed to by the injury which is the subject of the application under section 134AB; and (e) the worker left a dependant or dependants. (2) If this section applies— (a) the legal personal representative of the deceased worker may take the same action as could have been taken by the worker had the worker not died— (i) in respect of an application made by the worker under section 134AB(4) before his or her death; or (ii) in respect of an application referred to in section 134AB(16)(b)—within the unexpired period of time that would have been available to the deceased, or after that period with the consent of the Authority under section 134AB(20); (b) if an application under section 134AB(4) was pending at the time of the worker's death, the Authority or self-insurer, within the unexpired period of time in which it had to determine the application, must determine whether, as at the date the application was served, the worker had a serious injury assessed in accordance with this section; (c) any right arising from a determination by a Court, the Authority or a self-insurer that a worker had a serious injury is deemed, for the purposes of section 29 of the **Administration and Probate Act 1958** to have vested in the worker before the worker's death and survives for the benefit of the deceased worker's estate. (3) For the purposes of the assessment of ***serious injury*** in respect of an application or proceedings commenced or continued under this section, the assessment must be made in accordance with section 134AB(38) except where this section otherwise provides. (4) For the purposes of the assessment of ***serious injury*** under this section, the assessment must be made as at the date the application was served by the worker before his or her death under section 134AB(4). (5) If it is determined that a worker referred to in subsection (1) had a serious injury as at the time he or she served the application under section 134AB(4), notwithstanding anything to the contrary in section 134AB, the legal personal representative of the deceased worker may bring proceedings for the recovery of— (a) pain and suffering damages in respect of the injury; and (b) if the deceased worker's application established the matters specified in section 134AB(38)(e), (f) and (g)—pecuniary loss damages in respect of the injury— from the date the injury was sustained to the date of death of the worker. (6) For the purposes of subsection (5)(b)— (a) section 134AB(38)(e) applies as if a reference to "the date of the hearing of an application" were a reference to the date on which the application under section 134AB(4) was served; (b) section 134AB(38)(f) applies as if a reference to "that date" were a reference to the date on which the application under section 134AB(4) was served. (7) The death of a worker does not affect the admissibility of— (a) evidence obtained before or after the worker served an application under section 134AB(4); and (b) evidence that would have otherwise been admissible under section 134AB. (8) In this section— ***dependant*** means a person who at the time of the death of the worker referred to in subsection (1)— (a) was wholly, mainly or partly dependent on the earnings of the worker; or (b) would have been wholly, mainly or partly dependent on the earnings of the worker but for the incapacity of the worker resulting from, or materially contributed to by, the serious injury the subject of the application, or any incapacity of the worker due to the injury or disease which caused or materially contributed to the worker's death. (9) A reference to service of an application under section 134AB(4) in this section means the service of an application in accordance with directions made by the Minister under section 134AF. S. 134ABA inserted by No. 102/2004 s. 9. 134ABA Calculation of limitation of actions period For the purpose of calculating the period of time under the **Limitation of Actions Act 1958** within which proceedings permitted by, and in accordance with, section 134AB may be commenced on or after the commencement of section 9 of the **Accident Compensation Legislation (Amendment) Act 2004**, the following periods of time are to be disregarded— S. 134ABA(a) amended by No. 80/2010 s. 93. (a) if the degree of permanent impairment of the worker resulting from the injury is to be determined, the period of time commencing on the day a claim for compensation under section 98C or 98E is lodged and ending 30 days after— S. 134ABA (a)(i) amended by No. 67/2013 s. 638(5). (i) the Authority or self-insurer advises the worker of the determination under section 104B(2) or (7); or (ii) the Authority or self-insurer notifies the worker of the decision of the Medical Panel— (b) if the worker elects to make an application under section 134AB(4), the period of time commencing on the day on which the application is made and ending on the day on which proceedings are commenced in accordance with section 134AB(12)(e). S. 134ABB inserted by No. 9/2010 s. 59. 134ABB Calculation of limitation of actions period (1) For the avoidance of doubt, it is declared that, section 134AB does not affect the date of accrual of a cause of action for the purposes of the **Limitation of Actions Act 1958**. (2) Subsection (1) is deemed to have commenced on 20 October 1999. S. 134AC inserted by No. 26/2000 s. 18, repealed by No. 62/2014 s. 9. S. 134AD inserted by No. 26/2000 s. 18, repealed by No. 9/2010 s. 60. S. 134AE inserted by No. 26/2000 s. 18, repealed by No. 68/2012 s. 3. S. 134AF inserted by No. 26/2000 s. 18. 134AF Directions (1) For the purposes of section 134AB, the Minister may issue directions for or with respect to procedures under that section. S. 134AF(1A) inserted by No. 102/2004 s. 10. (1A) For the purposes of section 134AB(3)(b), the Minister may issue directions specifying or limiting the classes of cases or circumstances in which an election can be made under that section. S. 134AF(2) repealed by No. 80/2010 s. 122(5). (3) The directions may include directions about the provision of information by affidavit and the attending of conferences. (4) A person to whom a direction under this section applies, and the legal representatives and agents of such a person, must comply with the direction. (5) The directions may specify that a failure to comply with a particular provision of the directions has the effect of altering a period applicable under that section. S. 134AFA inserted by No. 80/2010 s. 94. 134AFA Legal practitioner may recover costs A legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under section 134AB, 135, 135A or 135B is entitled to be paid legal costs, of a kind specified in a legal costs order made under section 134AG or 134AGA from the Authority or self-insurer. S. 134AG inserted by No. 26/2000 s. 19 (as amended by No. 84/2000 s. 39(3)(a)(b)). 134AG Legal costs order (1) The Governor in Council may by Order in Council make a legal costs order— S. 134AG(1)(a) amended by No. 80/2010 s. 95(1). (a) specifying the legal costs that may be paid by the Authority or self-insurer by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under section 134AB, 135, 135A or 135B; and (b) prescribing or specifying any matter or thing required to give effect to the legal costs order. (2) A legal costs order— (b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order; (c) applies to legal costs incurred on or after the date of commencement of the order. (3) A legal costs order may— (a) apply generally or be limited in its application by reference to classes of proceedings, costs, circumstances or factors; (b) apply differently according to different circumstances or factors of a specified kind; (c) specify different methods of calculation whether by reference to formulas, scales, tables or other means; (d) apply, adopt or incorporate (with or without modification) the provisions of any document, code, standard, rule, specification or method whether as formulated, issued, prescribed or published at the time the order is made; (e) authorise any specified person or body to determine or apply a specified matter or thing. (4) Section 134AB(29), 135A(13B) or 135B(7) does not apply in proceedings to which a legal costs order applies. S. 134AG(5) amended by Nos 18/2005 s. 18(Sch. 1 item 1.2), 62/2012 s. 23, 17/2014 s. 160(Sch. 2 item 1.2). (5) This section and any legal costs order made under this section has full force and effect notwithstanding anything to the contrary in the Legal Profession Uniform Law (Victoria), the **Legal Profession Uniform Law Application Act 2014**, the **Supreme Court Act 1986** or the **County Court Act 1958** or the **Civil Procedure Act 2010** or in any regulation, rules, order or other document made under any of those Acts. S. 134AG(6) inserted by No. 80/2010 s. 95(2). (6) Legal costs in respect of any claim, application or proceeding referred to in subsection (1)(a) cannot be recovered from the Authority or self-insurer except in accordance with an order under this section. S. 134AGA inserted by No. 80/2010 s. 96. 134AGA Litigated claims legal costs order—workers (1) Subject to subsection (2), the Governor in Council may by Order in Council make a litigated claims legal costs order— (a) specifying the legal costs that may be recovered from the Authority or self-insurer by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under or in accordance with section 134AB, 135, 135A or 135B; and (b) prescribing or specifying any matter or thing required to give effect to the legal costs order including procedures for resolving any dispute that arises in relation to the costs payable under the order. (2) Before a litigated claims legal costs order is made under subsection (1), the Minister must consult with the Attorney-General and Treasurer. (3) A litigated claims legal costs order— (b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order; (c) applies to legal costs incurred on or after the date of commencement of the order; (d) in the case of— (i) the first litigated legal costs order to be made under subsection (1) after the commencement of section 99 of the **Transport Accident and Accident Compensation Legislation Amendment Act 2010**, must be reviewed by the Minister within 2 years of the commencement of the litigated legal costs order; (ii) each subsequent litigated legal costs order made under subsection (1) after the litigated legal costs order specified in subparagraph (i) is made, must be reviewed by the Minister 3 years after commencement of each subsequent litigated legal costs order. (4) Section 134AB(29), 135A(13B) or 135B(7) does not apply in proceedings to which a litigated claims legal costs order under subsection (1) applies. (5) A litigated legal costs order under subsection (1) may provide for the amounts of costs specified in the order to be indexed in accordance with the all groups consumer price index for Melbourne as published by the Australian statistician. (6) If a litigated claims legal costs order under subsection (1) is in force, legal costs in respect of any claim, application or proceeding referred to in subsection (1) to which the order applies cannot be recovered except in accordance with the order. S. 134AGB inserted by No. 80/2010 s. 96. 134AGB Litigated claims legal costs order—Authority and self‑insurers (1) Subject to subsection (2), the Governor in Council may by Order in Council make a litigated claims legal costs order— (a) specifying the legal costs that may be recovered from a worker by a legal practitioner acting on behalf of the Authority or self-insurer in respect of any claim, application or proceedings under or in accordance with section 134AB, 135, 135A or 135B; and (b) prescribing or specifying any matter or thing required to give effect to the legal costs order including procedures for resolving any dispute that arises in relation to the costs payable under the Order. (2) Before a litigated claims legal costs order is made under subsection (1), the Minister must consult with the Attorney-General and Treasurer. (3) A litigated claims legal costs order— (b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order; (c) applies to legal costs incurred on or after the date of commencement of the order; (d) in the case of— (i) the first litigated legal costs order to be made under subsection (1) after the commencement of section 99 of the **Transport Accident and Accident Compensation Legislation Amendment Act 2010**, must be reviewed by the Minister within 2 years of the commencement of the litigated legal costs order; (ii) each subsequent litigated legal costs order made under subsection (1) after the litigated legal costs order specified in subparagraph (i) is made, must be reviewed by the Minister 3 years after commencement of each subsequent litigated legal costs order. (4) Section 134AB(29), 135A(13B) or 135B(7) does not apply in proceedings to which a litigated claims legal costs order under subsection (1)(a) applies. (5) If a litigated claims legal costs order under subsection (1)(a) is in force, legal costs in respect of any claim, application or proceeding referred to in subsection (1)(a) to which the order applies cannot be recovered except in accordance with the order. Pt 4 Div. 9 (Heading) substituted by No. 26/2000 s. 20(2).