Part 8Damages for personal injury

Part 8—Damages for personal injury 51—Application of this Part This Part applies— (a) where damages are claimed for personal injury arising from— (i) a motor accident (whether caused intentionally or unintentionally); or (ii) an accident caused wholly or in part by— (A) negligence; or (B) some other unintentional tort on the part of a person other than the injured person; or (C) a breach of a contractual duty of care; or (b) where personal injury arising in the manner described in paragraph (a) results in death and damages are claimed under Part 5 for harm resulting from the death. 52—Damages for non-economic loss (1) Damages may only be awarded for non-economic loss if— (a) the injured person's ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or (b) medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury. (2) If damages are to be awarded for non-economic loss, other than in relation to personal injury arising from an MVA motor accident, they must be assessed as follows: (a) the injured person's total non-economic loss is to be assigned a numerical value (the scale value) on a scale running from 0 to 60 (the scale reflecting 60 equal gradations of non-economic loss, from a case in which the non‑economic loss is not severe enough to justify any award of damages to a case in which the injured person suffers non-economic loss of the gravest conceivable kind); (b) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2002 by multiplying the scale value by $1 710; (c) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2003 as follows: (i) if the scale value is 10 or less—by multiplying the scale value by $1 150; (ii) if the scale value is 20 or less but more than 10—by adding to $11 500 an amount calculated by multiplying the number by which the scale value exceeds 10 by $2 300; (iii) if the scale value is 30 or less but more than 20—by adding to $34 500 an amount calculated by multiplying the number by which the scale value exceeds 20 by $3 450; (iv) if the scale value is 40 or less but more than 30—by adding to $69 000 an amount calculated by multiplying the number by which the scale value exceeds 30 by $4 600; (v) if the scale value is 50 or less but more than 40—by adding to $115 000 an amount calculated by multiplying the number by which the scale value exceeds 40 by $5 750; (vi) if the scale value is 60 or less but more than 50—by adding to $172 500 an amount calculated by multiplying the number by which the scale value exceeds 50 by $6 900; (d) the damages for non-economic loss in relation to an injury arising from an accident that occurred in a subsequent calendar year are to be calculated in accordance with paragraph (c) but the amount arrived at is to be adjusted (to the nearest multiple of $10) by multiplying it by a proportion obtained by dividing the Consumer Price Index for the September quarter of the previous calendar year by the Consumer Price Index for the September quarter 2002. Suppose that A is injured in an accident that occurred in 2003 and claims damages for personal injury. The case is one in which the criteria under which damages for non-economic loss may be awarded are satisfied. In assessing those damages, A's total non-economic loss is assigned by the court a scale value of 23. The damages for non-economic loss will, therefore, be $44 850, calculated as follows: (3) Subject to subsection (4), if damages are to be awarded for non‑economic loss in relation to personal injury arising from an MVA motor accident, they must be assessed as follows: (a) the injured person's total non‑economic loss is to be assigned a numerical value (an injury scale value) on a scale running from 0 to 100; (b) in assessing the injury scale value, the court must apply any rules prescribed by the regulations; (c) the damages for non‑economic loss are to be calculated as follows: (i) if the injury scale value is assessed as 31 or less but more than 10 (see subsection (4))—by adding to $2 000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 10 by $1 000 (indexed); (ii) if the injury scale value is assessed as 45 or less but more than 31—by adding to $23 000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 31 by $3 000 (indexed); (iii) if the injury scale value is assessed as 66 or less but more than 45—by adding to $65 000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 45 by $5 000 (indexed); (iv) if the injury scale value is assessed as 78 or less but more than 66—by adding to $170 000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 66 by $10 000 (indexed); (v) if the injury scale value is assessed as 79 or more—$300 000 (indexed). (4) A person who suffers personal injury arising from an MVA motor accident may only be awarded damages for non‑economic loss if the injury scale value that applies under subsection (3)(a) in relation to the injury exceeds 10. (5) However, a court may award damages for non‑economic loss in a case that would otherwise be excluded by operation of subsection (4) if satisfied— (a) that the consequences of the personal injury with respect to non‑economic loss are exceptional when judged by comparison with other cases involving the same injury; and (b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust. (6) An assessment of damages for non‑economic loss under subsection (5) must be based on an injury scale value that should rarely be more than 25% higher than the injury scale value that applies under subsection (3)(a) in relation to the injury. (7) An amount applying under subsection (3) (and followed by the word "(indexed)") is to be adjusted on 1 July of each year, beginning on 1 July 2014, by multiplying the stated amount by a proportion obtained by dividing the Consumer Price Index for the March quarter of that year by the Consumer Price Index for the March quarter 2013 (with the amount so adjusted being calculated to the nearest multiple of $10). (8) In connection with the operation of subsection (7), the amount to be applied with respect to a particular injury is the amount applying under subsection (3) at the time of occurrence of that injury. 53—Damages for mental harm (1) Damages may only be awarded for mental harm if the injured person— (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident. (2) Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness. (3) Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness. 54—Damages for loss of earning capacity (1) If the injured person was incapacitated for work, damages for loss of earning capacity are not to be awarded in respect of the first week of the incapacity. (2) Total damages for loss of earning capacity (excluding interest awarded on damages for any past loss) are not to exceed the prescribed maximum. (3) In a case in which an action is brought for the benefit of the dependants of a deceased person, the total amount awarded to compensate economic loss resulting from the death of the deceased person (apart from expenses—such as funeral expenses—actually incurred as a result of the death) cannot exceed the prescribed maximum and if before the date of death the deceased person received damages to compensate loss of earning capacity, the limit is to be reduced by the amount of those damages. 55—Lump sum compensation for future losses If— (a) an injured person is to be compensated by way of lump sum for loss of future earnings or other future losses; and (b) an actuarial multiplier is used for the purpose of calculating the present value of the future losses, then, in determining the actuarial multiplier, a prescribed discount rate is to be applied. 56—Exclusion of interest on damages compensating non-economic loss or future loss Interest is not to be awarded on damages compensating non-economic or future loss. 56A—Additional provisions relating to motor vehicle injuries (economic loss) (1) Any entitlement to damages for economic loss in relation to personal injury arising from an MVA motor accident applies subject to the provisions of this section. (2) A person who suffers personal injury arising from an MVA motor accident may only be awarded damages for loss or impairment of future earning capacity if the injury scale value that applies under the regulations in relation to the injury exceeds 7. (3) However, a court may award damages in a case that would otherwise be excluded by operation of subsection (2) if satisfied— (a) that the consequences of the personal injury with respect to loss or impairment of future earning capacity are exceptional; and (b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust. (4) In assessing damages for loss or impairment of future earning capacity in relation to personal injury arising from an MVA motor accident (other than with respect to a discount that would, apart from this section, be made for the usual vicissitudes of life)— (a) a court must not take into account— (i) any inference as to a circumstance in respect of which the court is unable to evaluate the chance of it occurring; or (ii) any inference as to a circumstance that the court evaluates as having less than a 20% chance of occurring; and (b) an award of damages must be arrived at by taking into account the several circumstances on which a court may rely, the chance of each occurring, and the combination of those chances; and (c) a court must, when making an award of damages, state— (i) the circumstances that have been taken into account for the purposes of the award; and (ii) the inferences that the court has drawn from those circumstances; and (iii) the court's evaluation of the chances of each circumstance relied on occurring; and (iv) its determination of the resultant award of damages. (5) Damages awarded for any form of loss or impairment of earning capacity (whether past or future) in relation to personal injury arising from an MVA motor accident must, after applying a discount rate (if any), and any other principle arising under this Act or at common law, including so as to take into account any actual or presumed contributory negligence, be discounted by a further 20%. (6) The maximum amount of damages that may be awarded to an employed person for loss in relation to personal injury arising from an MVA motor accident due to the loss of employer superannuation contributions is the relevant percentage of damages payable for the loss or impairment of the earning capacity on which the entitlement to those contributions is based. (7) In subsection (6)— relevant percentage means the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions. (8) The maximum amount of damages that may be awarded to a self‑employed person for economic loss in relation to personal injury arising from an MVA motor accident due to the loss of superannuation contributions made by or on behalf of the person is the relevant percentage of damages payable for the loss or impairment of the earning capacity on which the entitlement to those contributions is based (but nothing in this subsection gives rise to an entitlement to damages beyond damages awarded for loss or impairment of earning capacity). (9) In subsection (8)— relevant percentage means the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions for the benefit of an employee who earns the same amount as the self‑employed person. 57—Exclusion of damages for cost of management or investment Damages are not to be awarded to compensate for the cost of the investment or management of the amount awarded. 58—Damages in respect of gratuitous services (1) Damages are not to be awarded— (a) to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or (b) to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person. (2) Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings. (3) However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that— (a) the gratuitous services are reasonably required by the injured person; and (b) it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration, but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings. (4) Despite the preceding subsections, in a case involving an injured person who has suffered personal injury arising from an MVA motor accident— (a) damages referred to in subsection (1) are not to be awarded unless— (i) the injury scale value that applies under the regulations in relation to the injury exceeds 10; and (ii) the services are provided or to be provided— (A) for at least 6 hours per week; and (B) for a period of at least 6 consecutive months; and (b) any hourly rate used for the purposes of determining any damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child is not to exceed a rate prescribed by the regulations for the purposes of this paragraph. (5) Furthermore, in a case involving a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013, subsection (1) operates subject to the qualification that damages are not to be awarded for the recompense of gratuitous services of a parent, spouse, domestic partner or child of the participant in respect of any assessed treatment, care and support needs, as defined or determined under that Act (whether being past or future needs), that relate to the motor vehicle injury (as defined by that Act) in respect of which the person is a participant in that Scheme. (6) A reference in subsection (5) to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken to include a reference to a person who has been an interim participant in that Scheme (and who has received any treatment, care and support needs under that Act). 58A—Limitations on damages for participants in lifetime support scheme (1) No damages may be awarded to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 in respect of any of the treatment, care and support needs of the person, or any excluded treatment, care and support needs, as defined or determined under that Act (whether being past or future needs), that relate to the motor vehicle injury (as defined by that Act) in respect of which the person is a participant in that Scheme and that arise (or will arise) during the period in respect of which the person is a participant in the Scheme. (2) Subsection (1) applies— (a) whether or not the treatment, care and support needs are assessed treatment, care and support needs under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013; and (b) whether or not the Lifetime Support Authority is required to make a payment in respect of the treatment, care and support needs concerned; and (c) whether or not any treatment, care, support or service is provided on a gratuitous basis. (3) A reference in subsection (1) to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken to include a reference to a person who has been an interim participant in that Scheme (and who has received any treatment, care and support needs under that Act). 58B—Additional provisions relating to death on account of a motor vehicle injury (1) Any entitlement to damages for loss of financial support in respect of the death of a person arising from an MVA motor accident (a relevant loss of financial support claim) applies subject to the provisions of this section. (2) In making an award in relation to a relevant loss of financial support claim that will provide for the future (other than with respect to a discount that would, apart from this section, be made for the usual vicissitudes of life)— (a) a court must not take into account— (i) any inference as to a circumstance in respect of which the court is unable to evaluate the chance of it occurring; or (ii) any inference as to a circumstance that the court evaluates as having less than a 20% chance of occurring; and (b) an award of damages must be arrived at by taking into account the several circumstances on which a court may rely, and the combination of those chances; and (c) a court must, when making an award of damages, state— (i) the circumstances that have been taken into account for the purposes of the award; and (ii) the inferences that the court has drawn from those circumstances; and (iii) the court's evaluation of the chances of each circumstance occurring; and (iv) its determination of the resultant award of damages. (3) Damages awarded in relation to a relevant loss of financial support claim must, after applying a discount rate (if any), and any other principle arising under this Act or at common law, including so as to take into account any actual or presumed contributory negligence, be discounted by a further 20%.