28HIndexation of certain amounts—consumer price index

28H Indexation of certain amounts—consumer price index The amount specified in section 28G must be varied, in respect of the financial year beginning on 1 July 2016 and each subsequent financial year, in accordance with the formula— ![]() where— **A** is the amount specified in section 28G or, if that amount has been varied in accordance with this section, that amount as last so varied; **B** is the all groups consumer price index for Melbourne in original terms for the most recent reference period in the preceding calendar year most recently published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made; **C** is the all groups consumer price index for Melbourne in original terms for the corresponding reference period one year earlier than the reference period referred to in B published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made. S. 28HAA inserted by No. 62/2015 s. 7. 28HAA Indexation—no reduction If the operation of section 28H has the effect of reducing the amount specified in section 28G— (a) the variation is taken not to have taken effect, except for the purposes of the application of this section; and (b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year, that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase. S. 28HAAB inserted by No. 62/2015 s. 7. 28HAAB Indexation—rounding If it is necessary for the purposes of section 28H to calculate an amount that consists of or includes a fraction of a whole number, the amount is taken to have been calculated in accordance with that section if the calculation is made— (a) if the amount is less than $1000, to the nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. The amount specified in section 28G is equivalent to the amount provided by the **Workplace Injury Rehabilitation and Compensation Act 2013** for the purposes of section 340(b)(ii) of that Act (limitation on awards of damages for pain and suffering). Sections 28H, 28HAA and 28HAAB have the same effect as the indexation provisions that apply to that amount under the **Workplace Injury Rehabilitation and Compensation Act 2013**. The amount, as indexed under that Act, is published annually in the Government Gazette. S. 28HA inserted by No. 102/2003 s. 9. 28HA Tariffs for damages for non-economic loss (1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards for damages for non-economic loss in those earlier proceedings. (3) This section does not alter the rules for the determination of other damages. S. 28I inserted by No. 49/2002 s. 7. 28I Damages for future economic loss—discount rate (1) If an award of damages is to include any component, assessed as a lump sum, for economic loss that is referable to the future, the present value of that future economic loss is to be determined by adopting the prescribed discount rate. (2) The prescribed discount rate is— (a) a discount rate of the percentage prescribed by the regulations; or (b) if no percentage is so prescribed—a discount rate of 5%. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. S. 28IA inserted by No. 60/2003 s. 6. 28IA Limitation on damages for gratuitous attendant care (1) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that— (a) there is (or was) a reasonable need for the services to be provided; and (b) the need has arisen (or arose) solely because of the injury to which the damages relate; and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (2) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided— (a) for less than 6 hours per week; and (b) for less than 6 months. S. 28IB inserted by No. 60/2003 s. 6. 28IB Calculation of damages (1) If gratuitous attendant care services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for the services must not exceed— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Victoria for— S. 28IB(1)(a)(i) amended by No. 44/2014 s. 33(Sch. item 34(3)). (i) in respect of the whole or any part of a reference period occurring between the date of the injury in relation to which the award is made and the date of the award, being a reference period for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that reference period; or S. 28IB(1)(a)(ii) amended by No. 44/2014 s. 33(Sch. item 34(3)). (ii) in respect of the whole or any part of any other reference period—the most recent reference period occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (2) If gratuitous attendant care services are provided or are to be provided for less than 40 hours per week, the amount of damages that may be awarded for the services must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (1)(a) or (b), as the case requires. S. 28IC inserted by No. 60/2003 s. 6. 28IC Other laws not to be affected Except as provided by sections 28IA and 28IB, nothing in those sections affects any other law relating to the value of attendant care services. S. 28ID inserted by No. 102/2003 s. 10, substituted by No. 62/2015 s. 8. 28ID Court may award damages for loss of capacity to provide gratuitous care to dependants (1) Despite anything to the contrary at common law, a court may award damages to a claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants. (2) However, a court may only do so if the court is satisfied that— (a) in the case of any dependants of the kind referred to in paragraph (a) of the definition of ***dependants***—the claimant provided the care to those dependants before the time that the liability in respect of which the claim is made arose; and (b) the claimant's dependants were not, or will not be, capable of providing the care themselves because of— (i) their age; or (ii) their physical or mental incapacity; and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the gratuitous care would have been provided to the claimant's dependants— (i) for at least 6 hours per week; and (ii) for a period of at least 6 consecutive months; and (d) there will be a need for the care to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. (3) In determining the amount of damages (if any) to be awarded to the claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants, a court— (a) may only award damages for that loss in accordance with this section and section 28IE; and (b) must not include in any damages awarded to the claimant for non‑economic loss a component that compensates the claimant for the loss of that capacity. (4) The claimant may not be awarded damages for any loss of the claimant's capacity to provide gratuitous care to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (5) A person (whether or not a dependant of the claimant) may not be awarded damages for a loss sustained by the person because of the claimant's loss of capacity to provide gratuitous care if the claimant has previously recovered damages in respect of that loss of capacity. Subsections (2) to (5) and section 28IE do not apply to certain actions for damages—see section 28IF. S. 281E inserted by No. 102/2003 s. 10. 28IE Calculation of damages for gratuitous care (1) If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for not less than 40 hours per week, the amount of damages that may be awarded to the claimant for any loss of the claimant's capacity to provide that care must not exceed— (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Victoria for— S. 28IE(1)(a)(i) amended by No. 44/2014 s. 33(Sch. item. 34(4)). (i) in respect of the whole or any part of a reference period occurring between the date of the injury in relation to which the award is made and the date of the award, being a reference period for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that reference period; or S. 28IE(1)(a)(ii) amended by No. 44/2014 s. 33(Sch. item. 34(4)). (ii) in respect of the whole or any part of any other reference period—the most recent reference period occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (2) If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for less than 40 hours per week, the amount of damages that may be awarded to a claimant for the loss of the claimant's capacity to provide that care must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (1)(a) or (b), as the case requires. S. 28IF inserted by No. 102/2003 s. 10. S. 28IF (Heading) substituted by No. 62/2015 s. 9(1). 28IF Sections 28ID(2) to (5) and 28IE do not apply to certain actions for damages S. 28IF(1) repealed by No. 62/2015 s. 9(2). S. 28IF(2) amended by No. 62/2015 s. 9(3). (2) Sections 28ID(2) to (5) and 28IE do not apply to the following actions for damages— (a) subject to subsection (3), an action for damages in respect of an injury that is a dust‑related condition within the meaning of the **Administration and Probate Act 1958**; or (b) subject to subsection (3), an action for damages in respect of an injury resulting from smoking or other use of tobacco products, within the meaning of the **Tobacco Act 1987**, or exposure to tobacco smoke. (3) An action for damages referred to in subsection (2)(a) or (2)(b) does not include an action for damages that relates to the provision of or the failure to provide a health service. S. 28J inserted by No. 49/2002 s. 7, amended by No. 60/2003 s. 7 (ILA s. 39B(1)).