239Award of damages—requirements

239 Award of damages—requirements (1) An award of damages in a motor accident claim may be made only if the injured person to whom the motor accident claim relates— (a) has made a quality of life benefits application under division 2.6.2 (Quality of life benefits—application) and either— (i) an assessment has been conducted by an independent medical examiner under division 2.6.3 (Quality of life benefits—WPI assessment) and the person has been assessed as having a WPI of at least 10% as a result of the (ii) the insurer has decided the person has a WPI of at least 10% and has made a final offer WPI; or (b) is a foreign national who has— (i) received a lump sum payment under a lump sum agreement under section 184 (6) (Lump sum payment of certain defined benefits—foreign nationals); and (ii) been assessed as having a WPI of at least 10% as a result of the accident; and (iii) the assessment— (A) was conducted by a private medical examiner in accordance with the WPI assessment guidelines; but (B) was not conducted under division 2.6.3 (Quality of life benefits—WPI assessment); or

Threshold for damages Part 5.2 (c) is taken, under section 133 (WPI taken to be 10% in certain circumstances) or section 213 (2) (a) (SOI report—injury has significant occupational impact), to have a WPI of 10% as a result of the accident; or Note For procedures for a claim for a personal injury suffered by a child, see the Limitation Act 1985, s 30A (Special provision for injuries to children). (d) has made a successful claim for workers compensation benefits in relation to the injury and either— (i) been assessed as having a WPI of at least 10% as a result of the motor accident; or (ii) is taken, under section 213 (2) (a), to have a WPI of 10% as a result of the accident; or (e) has died as a result of the accident. Note Person who died as a result of a motor accident—see s 36. (2) Subsection (1) does not prevent a motor accident claim from being settled at any time. (3) For this section, a person has been assessed as having a WPI of at least 10% as a result of the accident if— (a) if separate WPI reports assess the person’s physical injuries and psychological injuries—the higher WPI assessment assesses the person’s WPI as at least 10%; or (b) if only 1 WPI report assesses the person’s WPI—the person’s WPI assessment assesses the person’s WPI as at least 10%. Note If an injured person has physical and psychological injuries, a WPI assessment of a physical injury may take into account a secondary psychological injury (see s 150 (4)). private medical examiner—see section 145.

successful claim for workers compensation benefits, by an injured person in relation to an injury, means a claim by the person for workers compensation benefits that— (a) has been made at least 26 weeks before the date— (i) the person gives a notice of claim to the insurer for the motor accident claim; or (ii) a WPI assessment is carried out on the person; and (b) has been— (i) accepted by the insurer for the claim; or (ii) otherwise settled with the insurer for the claim in accordance with the workers compensation scheme, including on a without prejudice basis; and Example—subpar (ii) a licensed insurer under the Workers Compensation Act 1951 settles a claim with the claimant by agreement to make a payment to the claimant without accepting liability for the claimant’s injury (see that Act, s 133) (c) has not been withdrawn by the injured person.