93Actions for damages

93 Actions for damages (1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section. (2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if— S. 93(2)(a) substituted by No. 32/1988 s. 21(1)(a). (a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and (b) the injury is a serious injury. S. 93(3)(a) substituted by No. 32/1988 s. 21(1)(b). (a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and S. 93(3)(b) substituted by No. 32/1988 s. 21(1)(b). (b) the degree so determined is 30 per centum or more— the injury is deemed to be a serious injury within the meaning of this section. S. 93(4)(a) substituted by No. 32/1988 s. 21(1)(c). (a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and S. 93(4)(b) substituted by No. 32/1988 s. 21(1)(c). (b) the degree so determined is less than 30 per centum— the person may not bring proceedings for the recovery of damages in respect of the injury unless— (c) the Commission— (i) is satisfied that the injury is a serious injury; and (ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or (d) a court, on the application of the person, gives leave to bring the proceedings. S. 93(5) substituted by No. 57/1989 s. 3(Sch. item 203.1). (5) A copy of an application under subsection (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action. (6) A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury. (7) A court must not, in proceedings in accordance with subsections (2), (3) and (4), award to a person in respect of an injury— (a) pecuniary loss damages— (i) if the total pecuniary loss damages assessed, before any reduction in respect of the person's responsibility for the injury, is less than $20 000; or (ii) in excess of $450 000; or (b) pain and suffering damages— (i) if the total pain and suffering damages assessed, before any reduction in respect of the person's responsibility for the injury, is less than $20 000; or (ii) in excess of $200 000; or (c) damages of any other kind. (8) A person may recover damages under Part III of the **Wrongs Act 1958** in respect of the death of a person as a result of a transport accident. (9) A court must not, in proceedings under Part III of the **Wrongs Act 1958** award damages in accordance with subsection (8) in respect of the death of a person in excess of $500 000. (10) Damages awarded to a person under this section shall not include damages in respect of— (a) in the case of an award of pecuniary loss damages under subsection (7), any pecuniary loss suffered before the entitlement of the person to compensation under this Act was reviewed under section 46; or (b) any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in section 60; or (c) 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. (11) If damages are awarded in accordance with subsection (7) or (9) in respect of the injury or death of a person, the court shall order the payment to the Commission— S. 93(11)(a) substituted by No. 32/1988 s. 21(1)(d). (a) in the case of damages awarded under subsection (7)— (i) in respect of pain and suffering damages, of such part of the damages as is equal to the sum of payments by the Commission under sections 47 and 48 in respect of the injury; or (ii) in respect of pecuniary loss damages, of such part of the damages as is equal to the sum of payments by the Commission under sections 49, 50 and 51 in respect of the injury; or (b) in the case of damages awarded in accordance with subsection (9), of such part of the damages as is equal to the sum of payments made by the Commission under this Act in respect of that death. (12) Subject to the discretion of the court— (a) in proceedings relating to an application for leave of the court under subsection (4)(d)—costs are to be awarded against a party against whom a decision is made; and (b) 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 defendant. (13) Where an award of damages in accordance with this section is to include compensation, 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. (14) Except as provided by subsection (13), nothing in that subsection affects any other law relating to the discounting of sums awarded as damages. (15) 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 an 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. (16) Except as provided by subsection (15), nothing in that subsection affects any other law relating to the payment of interest on an amount of damages, other than special damages. ***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; ***serious injury*** means— (a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) loss of a foetus. (18) Nothing in subsection (1)— (a) affects a right to compensation under this Act or an Act or enactment referred to in section 37 or 38; or S. 93(18)(b) amended by No. 32/1988 s. 21(2). (b) applies to the recovery of damages in respect of a transport accident involving an organized motor vehicle race or speed trial or a test in preparation for such a race or trial by a person who, by reason of section 41, is not entitled to compensation in accordance with this Act in respect of that accident. [↑](#endnote-ref-12) 12. S. 93(7): See note 1. [↑](#endnote-ref-13) 13. S. 93(10)(a): See note 1. [↑](#endnote-ref-14) 14. S. 93(11): See note 1. [↑](#endnote-ref-15) 15. S. 93(11A)(b): See note 1. [↑](#endnote-ref-16) 16. S. 93(12A): See note 1. [↑](#endnote-ref-17) 17. S. 93(18)(b): See note 1. [↑](#endnote-ref-18) 18. S. 93(18)(c): See note 1. [↑](#endnote-ref-19) 19. S. 93D: Sections 93A to 93C were never part of this Act. [↑](#endnote-ref-20) 20. Table of Amendments—**Financial Management (Consequential Amendments) Act 1994**, No. 31/1994: The proposed repeal of section 32 by section 4 (Schedule 2 item 92) of the **Financial Management (Consequential Amendments) Act 1994**, No. 31/1994 was not included in this publication due to its earlier repeal by section 8 of the **Accident Compensation (Amendment) Act 1988**. [↑](#endnote-ref-21) 21. Table of Amendments—**Equal Opportunity Act 1995**, No. 42/1995: The proposed repeal of section 16(3)(c) and (4) by the **Equal Opportunity Act 1995**, No. 42/1995 was not included in this publication due to their earlier repeal by section 23(b) of the **Transport Accident (General Amendment) Act 1994**. [↑](#endnote-ref-22)