(1) This Part (except sections 28IA, 28IB, 28IC and 28J(2)) extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before, on or after the commencement day.
(2) Despite subsection (1)—
(a) sections 28F, 28G and 28H do not apply to an award of damages in proceedings commenced in a court before the commencement day;
(b) section 28I does not apply to an award of damages made before the commencement day.
(3) In this section commencement day means the day on which section 7 of the Wrongs and OtherActs (Public Liability Insurance Reform) Act 2002 comes into operation.
S. 28LA inserted by No. 60/2003 s. 9.
28LA Transitional for gratuitous attendant care services
(1) Sections 28IA, 28IB, 28IC and 28J(2) apply to an award of damages for gratuitous attendant care services that relates to an injury received on or after 21 May 2003.
(2) On and from 1 October 2003, sections 28IA, 28IB, 28IC and 28J(2) apply to an award of damages for gratuitous attendant care services that relates to an injury received before 21 May 2003.
(3) Despite subsection (2), sections 28IA, 28IB, 28IC and 28J(2) do not apply to an award of damages for gratuitous attendant care services that relates to an injury received before 21 May 2003 if the award is made in a proceeding commenced in a court before 1 October 2003.
S. 28LAB inserted by No. 102/2003 s. 12.
28LAB Transitional for tariffs for damages for non-economic loss
Despite section 28L(1), section 28HA does not apply to an award of damages in proceedings commenced in a court before the commencement of section 9 of the Wrongs and Other Acts (Law of Negligence) Act 2003.
S. 28LAC inserted by No. 102/2003 s. 12.
28LAC Transitional for gratuitous care
Despite section 28L(1), sections 28ID and 28IE do not apply to an award of damages in proceedings commenced in a court before the commencement of section 10 of the Wrongs and Other Acts (Law of Negligence) Act 2003.
S. 28LACA inserted by No. 62/2015 s. 10.
28LACA Transitionals—Wrongs Amendment Act 2015
(1) Sections 28F and 28G, as amended by the Wrongs Amendment Act 2015, apply to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred.
(a) section 28F, as amended by section 5 of the Wrongs Amendment Act 2015, appliesto an award of damages in a proceeding that has been commenced before the commencement of section 5 of that Act but has not been finally settled or determined before the commencement of that section;
(b) section 28G, as amended by section 6 of the Wrongs Amendment Act 2015, applies to an award of damages in a proceeding that has been commenced before the commencement of section 6 of that Act but has not been finally settled or determined before the commencement of that section.
(3) Sections 28H and 28ID, as substituted by the Wrongs Amendment Act 2015, and sections 28HAA and 28HAAB, apply to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred.
(4) Without limiting subsection (3)—
(a) section 28H, as substituted by section 7 of the Wrongs Amendment Act 2015, and sections 28HAA and 28HAAB, apply to an award of damages in a proceeding that has been commenced before the commencement of section 7 of that Act but has not been finally settled or determined before the commencement of that section;
(b) section 28ID, as substituted by section 8 of the Wrongs Amendment Act 2015, applies to a claim in a proceeding that has been commenced before the commencement of section 8 of that Act but has not been finally settled or determined before the commencement of that section.
S. 28LACB inserted by No. 62/2015 s. 10.
28LACB Power to resolve transitional difficulties in proceeding—Wrongs Amendment Act 2015
(1) If any difficulty arises because of the operation of the Wrongs Amendment Act 2015 in a proceeding for an award of damages to which this Part applies, a court may make any order it considers appropriate to resolve the difficulty.
(2) An order made under subsection (1)—
(a) may be made on application of a party to the proceeding or on the court's own motion; and
(b) has effect despite any provision to the contrary made by or under any Act (otherthan the Charter of Human Rights and Responsibilities Act 2006).
S. 28LACC inserted by No. 62/2015 s. 10, repealed by No. 6420 s. 28LACC(4).
Pt 5BAA (Heading and ss 28LAD–28LAH) inserted by No. 22/2015 s. 3.
Part VBAA—Awards of damages related to death or injury of prisoners
S. 28LAD inserted by No. 22/2015 s. 3.
28LAD Definitions
claimant means a person who makes, or is entitled to make, a claim for the recovery of damages for non-economic loss in respect of mental harm caused by the death or injury of a prisoner;
court includes tribunal, and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined;
criminal record, in relation to a person, means a document that sets out—
(a) all the person's previous convictions; and
(b) in relation to each previous conviction—
(i) the date of the conviction; and
(ii) the court in which the conviction took place; and
(iii) the place of sitting of that court; and
(iv) the offence committed; and
(v) the sentence imposed;
Crown Prosecutor has the same meaning as in the Criminal Procedure Act 2009;
legal practitioner has the same meaning as in the Criminal Procedure Act 2009;
mental harm means psychological or psychiatric injury;
police officer has the same meaning as in the Victoria Police Act 2013;
prisoner means a person referred to in section 28LAE(1)(a);
profit motivated offence means—
(a) an offence referred to in Schedule 2 to the Confiscation Act 1997, and if circumstances are specified in that Schedule in relation to that offence, means an offence committed in those circumstances; or
(b) an offence that, at the time it was committed, was an offence referred to in Schedule 2 to the Confiscation Act 1997, and if circumstances were specified in that Schedule in relation to that offence, means an offence committed in those circumstances.
S. 28LAE inserted by No. 22/2015 s. 3.
28LAE Application of Part
(1) This Part applies to an award of damages for non‑economic loss in respect of mental harm if—
(a) the mental harm is caused by the death or injury of a person who was, when the death or injury occurred, the subject of—
(i) a sentence of imprisonment imposed by a court; or
(ii) a preventative detention order within the meaning of the Terrorism (Community Protection) Act 2003 or an order for a person's detention made under a corresponding preventative detention law within the meaning of that Act; or
S. 28LAE (1)(a)(iii) amended by No. 27/2018 s. 370(a).
(iii) a detention order or interim detention order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009; or
S. 28LAE (1)(a)(iv) inserted by No. 27/2018 s. 370(b).
(iv) a detention order, interim detention order or an emergency detention order within the meaning of the Serious Offenders Act 2018; and
(b) the claimant, as an adult, has been convicted of an offence.
(2) This Part applies in addition to any other provision of this Act applicable to an award of damages of a kind described in subsection (1).
(3) If there is an inconsistency between a provision of this Part and a provision of any other Part of this Act, the provision of this Part prevails to the extent of the inconsistency.
S. 28LAF inserted by No. 22/2015 s. 3.
28LAF Assessment of damages
(1) In determining an award of damages to which this Part applies, the jury or the court if the trial is without a jury, must—
(a) consider the factors set out in subsection (2); and
(b) having regard to those factors, reduce the amount of damages—
(i) in the case of a claimant who has been convicted of an offence other than a profit motivated offence—by a percentage that the jury or the court (asthe case requires) considers appropriate;
(ii) in the case of a claimant who has been convicted of an offence that is a profit motivated offence—by a percentage that the jury or the court (as the case requires) considers appropriate, being a percentage that is not less than 90 per cent.
(2) For the purposes of subsection (1), the factors are—
(a) the number and seriousness of the claimant's previous convictions; and
(b) the nature of the relationship between the claimant and the prisoner including any agreement, arrangement or understanding with respect to criminal activity; and
(c) the relationship (if any) between the conduct constituting an offence for which the claimant has been convicted and the conduct constituting an offence for which the prisoner has been convicted; and
(d) the claimant's character, behaviour or attitude at any time, whether before, during or after the commission of an offence for which the claimant has been convicted, including any evidence of rehabilitation, remorse or subsequent offending; and
(e) any other factor that the court considers relevant.
(3) The jury or the court (as the case requires) may determine a reduction of 100 per cent, with the result that the claim for damages is defeated.
(4) The jury or the court (as the case requires) must specify the percentage by which the amount of damages is reduced under this Part.
(5) Except as provided by this Part, nothing in this Part affects any other law relating to the discounting of sums awarded as damages.
S. 28LAG inserted by No. 22/2015 s. 3.
28LAG Criminal record
(1) For the purposes of this Part, the court may require the production of a claimant's criminal record.
(2) A claimant's criminal record is inadmissible as evidence unless it is signed by—
(a) a police officer; or
(b) a Crown Prosecutor; or
(c) a member of staff of the Office of Public Prosecutions established under the Public Prosecutions Act 1994 who is a legal practitioner.
Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate.
S. 28LAH inserted by No. 22/2015 s. 3.
28LAH Transitional
(1) This Part applies to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred.
(2) Despite section 14(2) of the Interpretation of Legislation Act 1984, this Part applies to an award of damages in a proceeding that immediately before the commencement of the Wrongs Amendment (Prisoner Related Compensation) Act 2015 has commenced but hasnot been finally determined.
Pt 5BA (Heading and ss 28LB–28LZQ) inserted by No. 60/2003 s. 4.
Part VBA—Thresholds in relation to
recovery of damages for non‑economic loss
Division 1—Introductory
S. 28LB inserted by No. 60/2003 s. 4.
28LB Definitions
A.M.A. Guides means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part;
S. 28LB def. of approved medical practitioner amended by No. 67/2013 s. 649(Sch. 9 item 36(4)(a)).
approved medical practitioner means—
(a) if a training course has been approved under section 91(1)(b) of the Accident Compensation Act 1985 orsection 54(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013, a medical practitioner who has successfully completed the course; or
(b) if a training course has not been so approved, a medical practitioner;
S. 28LB def. of asbestos-related condition inserted by No. 2/2015 s. 3.
asbestos-related condition has the same meaning as in the Asbestos Diseases Compensation Act 2008;
S. 28LB def. of certificate of assessment amended by No. 102/2003 s. 13(1).
certificate of assessment means a certificate provided under section 28LN or 28LNA;
claimant means a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person;
S. 28LB def. of Convenor amended by No. 67/2013 s. 649(Sch. 9 item 36(4)(b)).
Convenor means the Convenor or Deputy Convenor appointed under section 537 of the Workplace Injury Rehabilitation and Compensation Act 2013;
court includes tribunal and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined;
fault includes act or omission;
S. 28LB def. of impairment inserted by No. 102/2003 s. 13(2).
impairment means permanent impairment;
S. 28LB def. of Medical Panel amended by No. 67/2013 s. 649(Sch. 9 item 36(4)(c)).
Medical Panel means a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013;
S. 28LB def. of medical practitioner amended by Nos 97/2005 s. 182(Sch. 4 item 55(a)), 13/2010 s. 51(Sch. item 62.1).
medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student) and, in relation to anything done for the purposes of this Act in a place outside Victoria, includes a medical practitioner who is lawfully qualified under a law in force in that place to do that thing;
S. 28LB def. of medical question substituted by No. 102/2003 s. 13(3).
medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level;
S. 28LB def. of registered health practitioner substituted by Nos 97/2005 s. 182(Sch. 4 item 55(b)), 13/2010 s. 51(Sch. item 62.2), amended by No. 27/2012 s. 30.
registered health practitioner means—
(a) a medical practitioner; or
(b) a person registered under the Health Practitioner Regulation National Law—
(i) to practise in the dental profession as a dentist (other than as a student); and
(ii) in the dentists division of that profession; or
(c) a person registered under the Health Practitioner Regulation National Law to practise in the chiropractic profession (other than as a student); or
(ca) a person registered under the Health Practitioner Regulation National Law to practise in the occupational therapy profession (other than as a student); or
(d) a person registered under the Health Practitioner Regulation National Law to practise in the optometry profession (other than as a student); or
(e) a person registered under the Health Practitioner Regulation National Law to practise in the osteopathy profession (other than as a student); or
(f) a person registered under the Health Practitioner Regulation National Law to practise in the physiotherapy profession (other than as a student); or
(g) a person registered under the Health Practitioner Regulation National Law to practise in the podiatry profession (other than as a student); or
(h) a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); or
(i) a person registered under the Health Practitioner Regulation National Law to practise in the Chinese medicine profession—
(i) in the Division of Chinese herbal medicine practitioner; or
(ii) in the Division of Acupuncturists;
respondent, in relation to a claim, means the person against whom the claim is made;
S. 28LB def. of threshold level substituted by No. 62/2015 s. 11.
threshold level means—
(a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;
(b) in the case of psychiatric injury, impairment of 10 per cent or more;
(c) in the case of spinal injury, impairment of 5 per cent or more.
S. 28LC inserted by No. 60/2003 s. 4.
28LC Application of Part
(1) This Part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by subsection (2) or (3).
(2) This Part does not apply to the following claims for the recovery of damages for non-economic loss—
(a) a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct;
(b) a claim to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies;
S. 28LC(2)(c) amended by No. 67/2013 s. 649(Sch. 9 item 36(5)).
(c) a claim to which Part IV of the Accident Compensation Act 1985 or Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013 applies;
S. 28LC(2)(d) amended by No. 2/2015 s. 4(1).
(d) a claim in respect of an injury or death which entitles, or may entitle, a worker, or a dependant of a worker, within the meaning of the Workers Compensation Act 1958 to compensation under that Act;
S. 28LC(2)(e) inserted by No. 2/2015 s. 4(2).
(e) a claim in respect of an injury that is an asbestos-related condition.
(3) This Part does not apply to claims in proceedings of a class that is excluded by the regulations from the operation of this Part.
(4) This Part extends to a claim for damages for non‑economic loss even if the claim is founded on breach of contract or any other cause of action.
S. 28LD inserted by No. 60/2003 s. 4.
28LD This Part is substantive law
For the avoidance of doubt it is declared that all the provisions of this Part contain matters that are substantive law and are not procedural in nature.
Division 2—Restriction on recovery of damages for non‑economic loss
S. 28LE inserted by No. 60/2003 s. 4.
28LE Restriction on recovery of damages for non‑economic loss
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
S. 28LF inserted by No. 60/2003 s. 4.
28LF What is significant injury?
(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if—
(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
S. 28LF(1)(aa) inserted by No. 102/2003 s. 14(1).
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; or
(c) the injury is loss of a foetus; or
S. 28LF(1)(ca) inserted by No. 102/2003 s. 14(2).
(ca) the injury is psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth; or
(d) the injury is loss of a breast.
(2) For the purposes of this Part psychiatric injury to a person is significant injury if—
(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
S. 28LF(2)(aa) inserted by No. 102/2003 s. 14(3).
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
(3) For the purposes of this Part injury to a person is deemed to be significant injury if—
(a) an agreement is given under Division 4 to waive the requirement for assessment in respect of the injury; or
S. 28LF(3)(aa) inserted by No. 102/2003 s. 14(4).
(aa) the injury is deemed under section 28LZG(10) or 28LZGA(4) to be significant injury; or
(b) the court makes a determination in respect of that person under section 28LZN.
Division 3—Assessment of impairment
S. 28LG inserted by No. 60/2003 s. 4.
28LG Who can assess impairment?
The assessment of degree of impairment must be made by an approved medical practitioner.
S. 28LH inserted by No. 60/2003 s. 4, amended by No. 102/2003 s. 15(1)(2) (ILA s. 39B(1)).
28LH How is the degree of impairment to be assessed?
(1) Subject to this Division, an approved medical practitioner must make an assessment of degree of impairment under this Part—
(a) in accordance with—
(i) the A.M.A. Guides; or
(ii) the methods prescribed for the purposes of this Part; and
(b) in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
S. 28LH(2) inserted by No. 102/2003 s. 15(2).
(2) Nothing in subsection (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all of the injuries to the person have stabilised.
S. 28LI inserted by No. 60/2003 s. 4, substituted by No. 41/2006 s. 48.
28LI Assessment of certain impairments
S. 28LI(1) amended by No. 38/2017 s. 98.
(1) For the purposes of assessing the degree of psychiatric impairment the A.M.A. Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 14 there were substituted the guidelines entitled "The Guide to the Evaluation of Psychiatric Impairment for Clinicians".
(2) For the purposes of assessing the degree of asthma impairment—
S. 28LI(2)(a) amended by No. 38/2017 s. 98.
(a) the A.M.A. Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 5, Tables 8 and 10, there were substituted the guidelines entitled "Impairment Assessment in Workers with Occupational Asthma"; and
(b) a reference in the guidelines entitled "Impairment Assessment in Workers with Occupational Asthma" to "occupational asthma" is to be construed as a reference to "asthma".
(3) For the purposes of assessing the degree of infectious disease impairment—
S. 28LI(3)(a) amended by No. 38/2017 s. 98.
(a) the A.M.A. Guides apply, subject to any regulations made for the purposes of this section and subject to the guidelines entitled "Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases"; and
(b) a reference in the guidelines entitled "Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases" to "infectious occupational diseases" is to be construed
as a reference to "infectious diseases".
S. 28LI(4) substituted by No. 67/2013 s. 649(Sch. 9 item 36(6)).
(4) Unless subsection (5) applies, the guidelines referred to in subsections (1), (2) and (3) are the guidelines referred to in sections 64, 65 and 66 of the Workplace Injury Rehabilitation and Compensation Act 2013.
(5) The guidelines referred to in subsections (1), (2) and (3) may be amended, varied or substituted by a subsequent edition of the guidelines published by the Minister in the Government Gazette.
(6) If a subsequent edition of the guidelines is published by the Minister in the Government Gazette under subsection (5), the guidelines have effect from the day after the day on which the Government Gazette is published.
(7) Subject to subsection (8)—
(a) this section as in force before the commencement of section 48 of the Accident Compensation and Other Legislation (Amendment) Act 2006 continues to apply if before that commencement a person has had at least one impairment examination for the purposes of assessing the degree of psychiatric impairment, the degree of asthma impairment or the degree of infectious disease impairment;
(b) if paragraph (a) does not apply, this section as amended by section 48 of the Accident Compensation and Other Legislation (Amendment) Act 2006 applies for the purposes of assessing the degree of psychiatric impairment, the degree of asthma impairment or the degree of infectious disease impairment in an impairment examination made on or after the commencement of section 48 of the Accident Compensation and Other Legislation (Amendment) Act 2006.
(8) Despite subsection (7)(b), if the first guidelines under section 91 of the Accident Compensation Act 1985 as amended by section 9 of the Accident Compensation and Other Legislation (Amendment) Act 2006 are not in force on the commencement of section 48 of the Accident Compensation and Other Legislation (Amendment) Act 2006, this section as in force before that commencement continues to apply for the purposes of assessing the degree of psychiatric impairment in an impairment examination made on or after that commencement until the first guidelines are in force.
S. 28LJ inserted by No. 60/2003 s. 4.
28LJ Regard not to be had to secondary psychiatric or psychological impairment
In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
S. 28LK inserted by No. 60/2003 s. 4.
28LK Assessment of hearing impairment
(1) For the purposes of assessing the degree of impairment of the whole person resulting from binaural hearing impairment, the percentage of the diminution of hearing determined in accordance with subsection (2) is to be converted as follows—
(a) if the binaural loss of hearing is 5 per cent NAL or less, the degree of impairment is to be assessed as zero;
(b) if the binaural loss of hearing is a percentage that is more than 5 per cent NAL, the degree of impairment is to be assessed at that percentage.
(2) For the purposes of this section, the percentage of diminution of hearing—
S. 28LK(2)(a) amended by No. 67/2013 s. 649(Sch. 9 item 36(7)).
(a) must be determined—
(i) by a person or class of persons approved; and
(ii) in the manner approved—
under section 63 of the Workplace Injury Rehabilitation and Compensation Act 2013; and
(b) must be determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory.
S. 28LL inserted by No. 60/2003 s. 4.
28LL Assessment in relation to injuries arising out of the same incident
(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.
(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.
(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
S. 28LM inserted by No. 60/2003 s. 4.
28LM Prescribed methods for assessment
If methods are prescribed for the purposes of this Part and apply to an assessment of impairment, the assessment must be made in accordance with those methods rather than in accordance with the A.M.A. Guides.
S. 28LN inserted by No. 60/2003 s. 4.
28LN Certificate of assessment
S. 28LN(1) amended by No. 102/2003 s. 16(1).
(1) Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
(2) The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
S. 28LN(3) inserted by No. 102/2003 s. 16(2).
(3) If not all the injuries to a person have stabilised, a certificate of assessment can only be provided under this section in respect of the person if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.
S. 28LNA inserted by No. 102/2003 s. 17.
28LNA Certificate where injury not stabilised
(1) This section applies if, after making an assessment of degree of impairment under this Part, an approved medical practitioner is unable to determine the degree of impairment because the injury has not stabilised.
(2) If, at the end of 6 months after that first assessment, an approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised, that approved medical practitioner may issue a certificate of assessment under this section.
(3) The certificate of assessment must state that the approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised.
Division 4—Procedure for claim for
non-economic loss
S. 28LO inserted by No. 60/2003 s. 4.
28LO Agreement to waive assessment of impairment
(1) A claimant may, in writing, ask the respondent to waive the requirement for an assessment of degree of impairment under this Part.
S. 28LO(1A) inserted by No. 102/2003 s. 18(1).
(1A) A request under subsection (1) must be in the prescribed form (if any) and include the prescribed information (if any).
S. 28LO(2) amended by No. 102/2003 s. 18(2).
(2) A respondent to whom a request under subsection (1) is made must respond in writing to the request within 60 days after receiving it.
(3) The response must—
(a) state that the respondent is a proper respondent to the claim and state that the respondent agrees to waive the requirement for the assessment of degree of impairment under this Part because the injury is significant injury; or
(b) state that the respondent is a proper respondent to the claim and request that the claimant obtain an assessment of degree of impairment under this Part; or
S. 28LO(3)(c) amended by No. 102/2003 s. 18(3).
(c) if the respondent is unable to decide, on the information contained in the request, whether the respondent is a proper respondent to the claim, advise the claimant of the further information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim; or
(d) state that the respondent believes that the respondent is not a proper respondent to the claim, give the reasons for the belief and give any information that may help the claimant to identify the proper respondent.
S. 28LO(4) amended by No. 102/2003 s. 18(2).
(4) If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
S. 28LO(5) inserted by No. 102/2003 s. 18(4).
(5) Information prescribed for the purposes of subsection (1A) may include information relating to—
(a) the identity of the claimant;
(b) the nature of the claim;
(c) the injury;
(d) the incident out of which the alleged injury arose;
(e) any medical practitioner who has treated the injury.
S. 28LP inserted by No. 60/2003 s. 4.
28LP What if the respondent asks for more information?
(1) If under section 28LO(3)(c) a respondent advises a claimant that specified further information is needed, the claimant must give the respondent the information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim.
S. 28LP(2) amended by No. 102/2003 s. 19.
(2) The respondent must respond in the manner set out in section 28LO(3)(a), (b) or (d) within 60 days after receiving the information.
S. 28LP(3) amended by No. 102/2003 s. 19.
(3) If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
S. 28LQ inserted by No. 60/2003 s. 4.
28LQ What if the respondent disputes responsibility?
(1) If a respondent responds in accordance with section 28LO(3)(d), the claimant must give written notice to the respondent, within 14 days after receiving the response, that either—
(a) on the information available to the claimant, the claimant accepts that the respondent is not a proper respondent to the claim; or
(b) the claimant considers that the respondent is a proper respondent to the claim and requires the respondent to respond to the notice.
(2) The respondent must respond in writing to a notice under subsection (1)(b) within 14 days after receiving the notice.
(3) The response under this section must—
(a) state that the respondent agrees to waive the requirement for the assessment of degree of impairment under this Part because the injury is significant injury; or
(b) request that the claimant obtain an assessment of degree of impairment under this Part.
(4) If the respondent fails to respond within the 14 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
S. 28LR inserted by No. 60/2003 s. 4.
28LR Can a respondent bind any other respondent?
An agreement under this Division by a respondent to a claim that the assessment is not required because the injury is significant injury does not bind any other respondent.
S. 28LS inserted by No. 60/2003 s. 4, repealed by No. 102/2003 s. 20.
S. 28LT inserted by No. 60/2003 s. 4, amended by No. 102/2003 s. 21 (ILA s. 39B(1)).
28LT Copy of certificate of assessment to be served on respondent
(1) A claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.
S. 28LT(2) inserted by No. 102/2003 s. 21.
(2) The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.
S. 28LT(3) inserted by No. 102/2003 s. 21.
(3) The information prescribed for the purposes of subsection (2) may include information relating to—
(a) the identity of the claimant;
(b) the nature of the claim;
(c) the injury;
(d) the incident out of which the alleged injury arose;
(e) any medical practitioner who has treated the injury.
S. 28LU inserted by No. 60/2003 s. 4.
28LU Multiple respondents
(1) If there are 2 or more respondents to a claim, one of the respondents (the respondents' claim manager) may act for one or more of the other respondents, with the agreement of those other respondents, for the purposes of the claim.
(2) The respondents' claim manager—
(a) may exercise the powers and perform the duties conferred by this Part in relation to the claim and the claimant for all respondents for whom the respondents' claim manager acts; and
(b) must act as far as practicable with the agreement of the other respondents for whom the respondents' claim manager acts.
(3) Action taken or an agreement made by the respondents' claim manager in relation to the claim is binding on each respondent for whom the respondents' claim manager acts so far as it affects the claimant.
(4) If the respondents' claim manager acts beyond the scope of the respondents' claim manager's authority under the agreement referred to in subsection (1), the respondents' claim manager is liable to each other respondent who is a party to the agreement for any loss suffered by the other respondent.
S. 28LV inserted by No. 60/2003 s. 4.
28LV Limitation period suspended
Service of a copy of a certificate of assessment on a respondent suspends the relevant period of limitation under the Limitation of Actions Act1958 or this Act in respect of the claim until the expiry of 3 months after whichever of the following first occurs—
S. 28LV(a) amended by No. 102/2003 s. 22(a).
(a) the respondent accepts in writing under section 28LW, 28LWA or 28LWB the assessment in the certificate of assessment;
S. 28LV(b) amended by No. 102/2003 s. 22(b).
(b) the respondent is deemed under section 28LW, 28LWA, 28LWB, 28LZA or 28LZGA to have accepted the assessment;
S. 28LV(c) amended by No. 102/2003 s. 22(c).
(c) if the respondent refers a medical question in relation to the assessment to a Medical Panel for determination under this Part, the expiry of any period for bringing an application for any relief or remedy in relation to the determination of the Medical Panel, unless such an application is brought within that period;
S. 28LV(d) amended by No. 102/2003 s. 22(c).
(d) if the respondent brings an application for any relief or remedy in relation to the determination of a Medical Panel, the final determination of that application.
S. 28LW inserted by No. 60/2003 s. 4, substituted by No. 102/2003 s. 23.
28LW Response to medical assessment
(1) The respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the required information under section 28LT.
(2) The response to the claimant must—
(a) state that the respondent is a proper respondent to the claim and state that the respondent accepts the assessment for the purposes of this Part; or
(b) state that the respondent is a proper respondent to the claim and advise the claimant that the respondent intends to refer or has referred a medical question in relation to the assessment to a Medical Panel for determination under this Part; or
(c) if the respondent is unable to decide, on the information provided with the certificate of assessment, whether the respondent is a proper respondent to the claim, advise the claimant of the further information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim; or
(d) state that the respondent believes that the respondent is not a proper respondent to the claim, give the reasons for the belief and give any information that may help the claimant to identify the proper respondent.
(3) The respondent must state that the respondent is a proper respondent to a claim if the respondent has already stated under section 28LO or 28LP that the respondent is a proper respondent to the claim.
(4) If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
S. 28LWA inserted by No. 102/2003 s. 23.
28LWA What if the respondent asks for more information?
(1) If, under section 28LW(2)(c), a respondent advises a claimant that specified further information is needed, the claimant must give the respondent the information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim.
(2) The respondent must respond in the manner set out in section 28LW(2)(a), (b) or (d) within 60 days after receiving the information.
(3) If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
S. 28LWB inserted by No. 102/2003 s. 23.
28LWB What if the respondent disputes responsibility?
(1) If a respondent responds in accordance with section 28LW(2)(d), the claimant must give written notice to the respondent, within 14 days after receiving the response, that either—
(a) on the information available to the claimant, the claimant accepts that the respondent is not a proper respondent to the claim; or
(b) the claimant considers that the respondent is a proper respondent to the claim and requires the respondent to respond to the notice.
(2) The respondent must respond in writing to a notice under subsection (1)(b) within 14 days after receiving the notice.
(3) The response under this section must—
(a) state that the respondent is a proper respondent to the claim and state that the respondent accepts the assessment for the purposes of this Part; or
(b) state that the respondent is a proper respondent to the claim and advise the claimant that the respondent has referred or intends to refer a medical question in relation to the assessment to a Medical Panel for determination under this Part.
(4) If the respondent fails to respond within the 14 days, the respondent is deemed to have accepted the assessment.
S. 28LWC inserted by No. 102/2003 s. 23.
28LWC Can a respondent bind any other respondent?
An acceptance under this Division by a respondent to a claim of an assessment does not bind any other respondent.
S. 28LWD inserted by No. 102/2003 s. 23.
28LWD Statement not admission of liability
A statement under this Division that a respondent is a proper respondent to a claim is not an admission of liability in respect of the claim.
S. 28LWE inserted by No. 102/2003 s. 23.
28LWE Referral of medical question to Medical Panel
(1) The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part—
(a) within 60 days after receiving the certificate and the required information under section 28LT; or
(b) within 60 days after receiving the information provided under section 28LWA; or
(c) within 14 days after receiving the notice under section 28LWB.
(2) The respondent may not refer a medical question in relation to the assessment to a Medical Panel if the respondent has accepted the assessment or is deemed to have accepted the assessment under this Division.
(3) If the respondent advises the claimant under section 28LW, 28LWA or 28LWB that the respondent intends to refer a medical question in relation to the assessment to a Medical Panel and does not refer the question within the required time under this section, the respondent is deemed to have accepted the assessment under this Division at the expiration of that required time.
S. 28LX inserted by No. 60/2003 s. 4, amended by No. 102/2003 ss 24, 25.
28LX Respondent to pay costs of referral
The respondent is liable for the fees and costs payable in accordance with section 28LXA for a referral of a medical question to a Medical Panel for determination under this Part including the costs of—
(a) any attendance before the Medical Panel under section 28LZE of a registered health practitioner; and
(b) copying documents to be provided under section 28LZC or 28LZE; and
(c) reasonable transport arrangements for persons attending the Medical Panel.
S. 28LXA inserted by No. 102/2003 s. 26.
28LXA Administration
(1) The Minister, on the recommendation of the Convenor, may, by notice published in the Government Gazette, fix scales of fees and costs for referrals of medical questions under this Part.
(2) All fees and costs payable by the respondent in respect of a referral to a Medical Panel under section 28LX must be paid to the Convenor.
(3) The Convenor may recover any fees or costs payable under section 28LX in any court of competent jurisdiction as a debt due to the Crown.
(4) The Convenor may establish a bank account or bank accounts for the purposes of this Part.
(5) The Convenor must pay any amount paid to the Convenor under this section into the bank account or accounts established under subsection (4).
(6) The Convenor may pay out of a bank account established under subsection (4) any amount necessary—
(a) to reimburse the Victorian WorkCover Authority for the remuneration (including allowances) of members of Medical Panels to the extent that is applicable to their functions under this Part;
(b) to pay the Victorian WorkCover Authority or any other person for the provision of administrative services under this Part;
(c) to pay any other costs (including administrative costs) relating to a referral of a medical question for determination under this Part.
(7) The Convenor may engage any person to assist the Convenor in carrying out any function under this Part.
(8) The Convenor may enter into arrangements with the Victorian WorkCover Authority or with any other person or body for the provision of administrative services to the Convenor for the purposes of this Part.
(9) The Minister must cause a notice under subsection (1) to be laid before each House of Parliament within 5 sitting days of that House after it is published in the Government Gazette.
(10) Sections 23, 24 and 25 of the Subordinate Legislation Act 1994 apply to a notice under subsection (1) as if it were a statutory rule within the meaning of that Act.
(11) A notice under subsection (1) may be disallowed in whole or in part by resolution of either House of Parliament in accordance with the requirements of section 23 of the Subordinate Legislation Act 1994.
Division 5—Procedure of Medical Panel
S. 28LY inserted by No. 60/2003 s. 4.
28LY Application
This Division sets out the powers and procedures of a Medical Panel in relation to a medical question referred to it under Division 4.
S. 28LZ inserted by No. 60/2003 s. 4.
28LZ Procedure of Medical Panel
(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2) A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
S. 28LZ(3) substituted by No. 102/2003 s. 27, amended by No. 67/2013 s. 649(Sch. 9 item 36(8)).
(3) The Minister, after consultation with the Minister administering Part 12 of the Workplace Injury Rehabilitation and Compensation Act 2013, may for the purposes of—
(a) ensuring procedural fairness in the procedures of Medical Panels under this Part; and
(b) facilitating the proper administration of the Medical Panels under this Part—
issue guidelines as to the procedures of Medical Panels under this Part.
S. 28LZ(4) substituted by No. 102/2003 s. 27.
(4) The Convenor may give directions as to the procedures of Medical Panels under this Part but must not give directions inconsistent with any guidelines issued by the Minister under this Part.
S. 28LZ(5) inserted by No. 102/2003 s. 27.
(5) A Medical Panel must comply with—
(a) any relevant guidelines as to the procedures of Medical Panels issued under subsection (3); and
(b) any directions given by the Convenor under subsection (4).
S. 28LZA inserted by No. 60/2003 s. 4.
28LZA Respondent must provide information to Medical Panel
(1) A respondent referring a medical question to a Medical Panel must submit to the Medical Panel—
S. 28LZA(1)(a) amended by No. 102/2003 s. 28(1).
(a) a notice in writing and in the prescribed form (if any) setting out—
(i) the medical question; and
(ii) any other prescribed information; and
(b) a copy of any relevant certificate of assessment served on the respondent by the claimant under section 28LT.
S. 28LZA(2) substituted by No. 102/2003 s. 28(2).
(2) The Convenor may, in writing, request the respondent to provide to the Medical Panel any specified document or documents of a specified class in the respondent's possession.
S. 28LZA(2A) inserted by No. 102/2003 s. 28(2).
(2A) More than one request may be made under subsection (2).
S. 28LZA(2B) inserted by No. 102/2003 s. 28(2).
(2B) The respondent must comply with any request under subsection (2).
S. 28LZA(3) amended by No. 102/2003 s. 28(3).
(3) The Medical Panel may refuse to proceed to consider a medical question if it is not provided with the documents required under subsection (1) or requested under subsection (2).
S. 28LZA(4) substituted by No. 102/2003 s. 28(4).
(4) A respondent is deemed to have accepted the assessment in the certificate of assessment if the respondent—
(a) fails to provide the Medical Panel with the information and documents required under subsection (1) within 30 days after being requested in writing to do so by the Convenor; or
(b) fails to provide any documents requested under subsection (2) within 30 days after that request.
(5) The Convenor must notify the claimant in writing within 7 days of a deemed acceptance under subsection (4).
S. 28LZB inserted by No. 60/2003 s. 4.
28LZB What if there is more than one referral in relation to an assessment?
The Convenor may direct that referrals by 2 or more respondents to the Medical Panel that concern the same assessment be consolidated.
S. 28LZC inserted by No. 60/2003 s. 4, amended by No. 102/2003 s. 29 (ILA s. 39B(1)).
28LZC What can a Medical Panel ask a claimant to do?
(1) A Medical Panel may ask a claimant—
(a) to meet with the Panel and answer questions;
(b) to supply to the Panel copies of all documents in the possession of the claimant that relate to the medical question;
(c) to submit to a medical examination by the Panel or by a member of the Panel.
S. 28LZC(2) inserted by No. 102/2003 s. 29.
(2) A request under this section must be made within 30 days after the medical question is referred to the Medical Panel.
S. 28LZD inserted by No. 60/2003 s. 4.
28LZD Attendance before Medical Panel to be private
(1) Any attendance of a claimant before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.
(2) If the claimant is a person under disability, the Medical Panel must permit a representative of the claimant to be present.
(3) In this section person under disability means a person who is—
(a) a minor; or
(b) incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the matter before the Medical Panel.
S. 28LZE inserted by No. 60/2003 s. 4, amended by No. 102/2003 s. 30 (ILA s. 39B(1)).
28LZE Medical Panel can ask a registered health practitioner to attend
(1) If a Medical Panel so requests and the claimant consents, a registered health practitioner who has examined the claimant must—
(a) meet with the Panel and answer questions; and
(b) supply relevant documents to the Panel.
S. 28LZE(2) inserted by No. 102/2003 s. 30.
(2) A request under this section must be made within 30 days after the last of the following to occur—
(a) the date on which the medical question is referred to the Medical Panel;
(b) the date on which the claimant meets with the Medical Panel under section 28LZC;
(c) the date on which the claimant is given a medical examination by the Medical Panel or a member of the Panel under section 28LZC;
(d) the last date on which the Medical Panel receives any documents requested under section 28LZC(1)(b).
S. 28LZF inserted by No. 60/2003 s. 4.
28LZF Protection of information given to Medical Panel
Information given to a Medical Panel cannot be used in any civil or criminal proceeding in any court, other than a proceeding—
S. 28LZF(a) amended by No. 102/2003 s. 24.
(a) relating to the claim for which the determination is sought; or
(b) for an offence against the Crimes Act 1958 which arises in connection with the claim.
S. 28LZG inserted by No. 60/2003 s. 4, substituted by No. 102/2003 s. 31.
28LZG Determination of Panel
(1) A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.
(2) After making the assessment, the Medical Panel must give the claimant and the respondent—
(a) its determination of the medical question in accordance with subsection (4); or
(b) its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or
(c) its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).
(3) The Medical Panel must give the determination or certificate—
(a) within 30 days after the last of the following to occur—
(i) the last date on which the claimant complies with a request under section 28LZC;
(ii) the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or
(b) within such longer period as is agreed by the claimant and the respondent.
(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(5) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.
(6) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing—
(a) certify that it is unable to determine the medical question; and
(b) fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.
(7) The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
(8) More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.
(9) A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
(10) If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be significant injury.
S. 28LZGA inserted by No. 102/2003 s. 31.
28LZGA Further assessment
(1) If a Medical Panel fixes a time for further assessment under section 28LZG, the respondent may by notice in writing to the Medical Panel and the claimant waive the requirement for a further assessment.
(2) The notice must be given within 14 days after the respondent receives the statement of the Medical Panel.
(3) If the respondent waives the requirement for a further assessment under section 28LZG, the respondent is deemed to have accepted, for the purposes of this Part, the assessment in the certificate of assessment served under section 28LT.
(4) If a Medical Panel fixes a time for further assessment under section 28LZG, and at the end of 12 months after the first assessment, the Medical Panel certifies in writing that it is still unable to determine the medical question because an injury has not stabilised, the injury to the person is deemed to be significant injury.
S. 28LZH inserted by No. 60/2003 s. 4.
28LZH Effect of determination as to threshold level
(1) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
(2) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
S. 28LZI inserted by No. 60/2003 s. 4.
28LZI Limitations on appeal in relation to assessments and determinations
(1) No appeal on the merits may be made to a court from an assessment or determination of a Medical Panel under this Division.
(2) Nothing in subsection (1) affects any right of a court to grant any other relief or remedy in relation to an assessment or determination of a Medical Panel under this Division.
S. 28LZJ inserted by No. 60/2003 s. 4.
28LZJ Treating medical practitioner not to be on Medical Panel
If a medical practitioner has treated or examined or has been engaged to treat or examine the claimant (otherwise than in his or her capacity as a member of a Medical Panel), he or she must not be a member of a Medical Panel considering a medical question relating to the claimant.
S. 28LZK inserted by No. 60/2003 s. 4.
28LZK Validity of acts or decisions
An act or decision of a Medical Panel under this Division is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member.
S. 28LZL inserted by No. 60/2003 s. 4, amended by No. 102/2003 s. 32, substituted by No. 67/2013 s. 649(Sch. 9 item 36(9)).
28LZL Operation of Panel provisions of the Workplace Injury Rehabilitation and Compensation Act 2013
(1) Except as provided in subsection (2), and subject to any inconsistency of context or subject-matter, Division 2 of Part 12 of the Workplace Injury Rehabilitation and Compensation Act 2013 applies to a Medical Panel appointed for the purposes of this Part.
(2) Division 3 of Part 6 and section 270 and 540 of the Workplace Injury Rehabilitation and Compensation Act 2013 do not apply to or in relation to—
(a) the procedure of a Medical Panel under this Part; or
(b) a matter referred to a Medical Panel under this Part.
Division 6—Proceedings on claim
S. 28LZM inserted by No. 60/2003 s. 4.
28LZM Provision of assessment information to court
(1) This section applies to a claimant who brings a proceeding in a court in respect of a claim for damages for non-economic loss to which this Part applies in respect of injury to a person caused by the fault of another person.
(2) The claimant must file in the court before the determination of the claim—
(a) if the claimant intends to rely on a certificate of assessment under this Part, a copy of that certificate; or
(b) if the claimant intends to rely on the written agreement of any respondent under Division 4 to waive the requirement for assessment in respect of the injury, a copy of that agreement.
S. 28LZM(3) amended by No. 102/2003 s. 24.
(3) If a Medical Panel has made a determination as to the threshold level under Division 5, the claimant must also file in the court a copy of the certificate of determination of the Medical Panel.
(4) If the respondent is deemed to have accepted an assessment under this Part, the claimant must also file in the court a statement to that effect.
S. 28LZM(5) inserted by No. 102/2003 s. 33.
(5) If the injury is deemed under section 28LZG(10) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under section 28LZG(5).
S. 28LZM(6) inserted by No. 102/2003 s. 33.
(6) If the injury is deemed under section 28LZGA(4) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under that subsection.
S. 28LZMA inserted by No. 62/2015 s. 12.
28LZMA Power of court to stay proceeding until certificate of assessment and other information is served
A court may, in any proceeding in respect of a claim for the recovery of damages for non-economic loss in respect of an injury to a claimant to which this Part applies, by order stay the proceeding until the claimant has, in accordance with this Part, served on the respondent—
(a) the certificate of assessment; and
(b) any other information that under this Part is required to accompany the certificate when it is served.
S. 28LZN inserted by No. 60/2003 s. 4.
28LZN Alternative procedure for special cases
(1) A claimant may apply to a court for a determination of significant injury for the purposes of this Part.
(2) The court may make a determination of significant injury in respect of a claimant if the court is satisfied that—
(a) the claim should be dealt with urgently because of the imminent death of the claimant; and
(b) the injury, if assessed under Division 3, would be significant injury.
(3) The court may make a determination of significant injury in respect of a claimant if the court is satisfied that—
(a) the claim relates to a cause of action that survives for the benefit of the estate of a deceased person under section 29(1) of the Administration and Probate Act 1958; and
(b) the deceased person died from a cause other than the injury to which the claim relates; and
(c) the injury to which the claim relates, if it had been assessed under Division 3, would be significant injury.
Division 7—General
S. 28LZO inserted by No. 60/2003 s. 4.
28LZO Supreme Court—limitation of jurisdiction
It is the intention of sections 28LE, 28LZH, 28LZI and 28LZL to alter or vary section 85 of the Constitution Act 1975.
S. 28LZP inserted by No. 60/2003 s. 4.
28LZP Regulations
(1) The Governor in Council may make regulations generally prescribing any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.
S. 28LZP
(2)(ab) inserted by No. 102/2003 s. 34.
(ab) may prescribe forms for use under this Part; and
(b) may apply, adopt or incorporate, wholly or partially or as amended by the regulations, any matter contained in any document as existing or in force at the time the regulations are made.
(3) Without limiting subsections (1) and (2), the regulations may modify the A.M.A. Guides.
(4) Without limiting subsections (1) and (2), the regulations may fix the methods to be used for the purpose of assessing the degree of impairment in respect of injury to a person.
(5) Regulations made under subsection (4)—
(a) must specify the methods to be used and any modifications of those methods that are to apply; and
(b) can only apply for the purpose of assessing the degree of impairment of a person who receives an injury on or after the date that the regulations are made or on or after a later date specified in the regulations.
S. 28LZQ inserted by No. 60/2003 s. 4.
28LZQ Transitional
(1) This Part applies to an award of damages for non-economic loss that relates to an injury received on or after 21 May 2003.
(2) On and from 1 October 2003, this Part applies to an award of damages for non-economic loss that relates to an injury received before 21 May 2003.
(3) Subsection (2) does not apply to an award of damages in a proceeding commenced in a court before 1 October 2003.
S. 28LZQ(4) inserted by No. 102/2003 s. 35.
(4) Despite the amendment of section 28LF by section 14(2) of the Wrongs and Other Acts (Law of Negligence) Act 2003, section 28LF continues to apply to any proceedings in which damages were awarded before the date on which that Act received the Royal Assent as if section 28LF had not been amended by section 14(2) of that Act.
S. 28LZR inserted by No. 2/2015 s. 5.
28LZR Transitional—Wrongs Amendment (Asbestos Related Claims) Act 2015
(1) Subject to subsection (2), this Part as amended by the Wrongs Amendment (Asbestos Related Claims) Act 2015 applies to a claim in a proceeding for damages for non-economic loss in respect of an injury that is an asbestos-related condition, irrespective of when the act or omission causing the injury and giving rise to the claim for damages in respect of the injury occurred.
(2) The amendments made to this Part by the Wrongs Amendment (Asbestos Related Claims) Act 2015 do not apply to a claim in a proceeding for damages for non-economic loss in respect of an injury that is an asbestos-related condition if, before the Wrongs Amendment (Asbestos Related Claims) Act 2015 commenced—
(a) the proceeding had been finally determined; or
(b) the claim had otherwise been finally settled.
(3) If, immediately before the commencement of the Wrongs Amendment (Asbestos Related Claims) Act 2015, a proceeding for a claim for damages for non-economic loss in respect of an injury that is an asbestos-related condition had been commenced and begun to be heard but was not determined by the court or otherwise finally settled at the commencement of that Act, that claim is taken to have always been a claim to which this Part does not apply as if section 28LC(2)(e) had been enacted and in operation at the time the proceeding in respect of the claim was commenced.
(4) Despite section 14(2) of the Interpretation of Legislation Act 1984, this Part as amended by the Wrongs Amendment (Asbestos Related Claims) Act 2015 applies to proceeding number S CI 2390 of 2013 in the Supreme Court of Victoria: Multari v Amaca Pty Ltd (under New South Wales administered winding up) and Another.
S. 28LZS inserted by No. 62/2015 s. 13.
28LZS Transitionals—Wrongs Amendment Act 2015
(1) The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss to which this Part applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred.
(2) Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for non‑economic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section.
(3) Section 28LZMA, as inserted by section 12 of the Wrongs Amendment Act 2015, applies to a proceeding for a claim for the recovery of damages for non-economic loss to which this Part applies that has been commenced before the commencement of section 12 of that Act but has not been finally settled or determined before the commencement of that section.
S. 28LZT inserted by No. 62/2015 s. 13.
28LZT Power to resolve transitional difficulties in proceeding—Wrongs Amendment Act 2015
(1) If any difficulty arises because of the operation of the Wrongs Amendment Act 2015 in a proceeding for a claim for damages for non‑economic loss in respect of an injury to the claimant to which this Part applies, a court may make any order it considers appropriate to resolve the difficulty.
(2) An order made under subsection (1)—
(a) may be made on application of a party to the proceeding or on the court's own motion; and
(b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of HumanRights and Responsibilities Act2006).
S. 28LZU inserted by No. 62/2015 s. 13, repealed by No. 6420 s. 28LZU(4).
Part VC (Heading and ss 28M, 28N) inserted by No. 49/2002 s. 8.
Part VC—Structured settlements
S. 28M inserted by No. 49/2002 s. 8.
28M Definitions
S. 28M def. of claim amended by No. 67/2013 s. 649(Sch. 9 item 36(10)).
claim does not include a claim under the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013;
court, in relation to a claim, means—
(a) if a proceeding based on the claim has been commenced in the Supreme Court or the County Court—the court hearing the proceeding; or
(b) if no proceeding based on the claim has been commenced—the Supreme Court or the County Court;
fault includes an act or omission;
structured settlement means an agreement that provides for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means.
S. 28N inserted by No. 49/2002 s. 8.
28N Court may make order for structured settlement
(1) If the parties to a claim for damages that relate to injury to a person caused by the fault of another person agree to settle the claim by making a structured settlement, one or more parties may apply to the court for an order approving of, or in the terms of, the structured settlement.
(2) The court may make the order even though the payment of damages is not in the form of a lump sum award of damages.