Sch 2Related amendments and transitional provisions

Schedule 2—Related amendments and transitional provisions Part 1—Related amendments 1—Amendment provisions In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified. Part 2—Amendment of Civil Liability Act 1936 2—Amendment of section 3—Interpretation (1) Section 3—definition of motor accident—before "arises out of" insert: is caused by or (2) Section 3—after the definition of motor vehicle insert: MVA motor accident means a motor accident where the motor vehicle is a motor vehicle as defined in the Motor Vehicles Act 1959; (3) Section 3—after its present contents as amended by this section (now to be designated as subsection (1)) insert: (2) For the purposes of this Act, personal injury will arise from a motor accident if the personal injury is caused by or arises out of the use of a motor vehicle. 3—Amendment of section 52—Damages for non‑economic loss (1) Section 52(2)—after "If damages are to be awarded for non‑economic loss" insert: , other than in relation to personal injury arising from an MVA motor accident (2) Section 52—after subsection (2) insert: (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. 4—Insertion of section 56A After section 56 insert: 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. 5—Amendment of section 58—Damages in respect of gratuitous services Section 58—after subsection (3) insert: (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). 6—Insertion of sections 58A and 58B After section 58 insert: 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%. 7—Amendment of section 65—Spouse or domestic partner may claim for loss or impairment of consortium Section 65—after its present contents (now to be designated as subsection (1)) insert: (2) Damages for the loss or impairment of consortium suffered by the spouse or domestic partner of an injured person on account of personal injury arising from an MVA motor accident will not be awarded unless the injury scale value that applies under the regulations in relation to the injury exceeds 10. 8—Insertion of Part 9 Division 13 After section 75 insert: