Untitled document

Wrongs Amendment Act 2015

No. 62 of 2015

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purpose

2Commencement

3Principal Act

Part 2—Amendment of Wrongs Act 1958

Division 1—Amendment of Part VB

4Definitions for the purposes of Part VB

5Damages for past or future economic loss—maximum for loss of earnings etc.

6Fixing damages for non-economic loss

7Section 28H substituted and new sections 28HAA and 28HAAB inserted

8New section 28ID substituted

9Application of sections 28ID and 28IE

10New sections 28LACA to 28LACC inserted

Division 2—Amendment of Part VBA

11Definitions for the purposes of Part VBA

12New section 28LZMA inserted

13New sections 28LZS to 28LZU inserted

Part 3—Repeal of amending Act

14Repeal of amending Act

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Endnotes

1      General information

Wrongs Amendment Act 2015

No. 62 of 2015

[Assented to 18 November 2015]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purpose

The purpose of this Act is to amend the Wrongs Act 1958—

(a)to change the method by which the maximum amount of damages for economic loss is calculated; and

(b)to fix a maximum amount of damages for non-economic loss and to change the method by which that amount is indexed into the future; and

(c)to provide for damages for loss of capacity to care for dependants in limited circumstances; and

(d)to change the threshold impairment level used for determining whether a person has suffered significant psychiatric or spinal injury; and

(e)to confer on courts a power to stay a proceeding to which Part VBA of that Act applies in respect of a claim for damages for non-economic loss in cases where the claimant has not served a certificate of assessment on the respondent.

2Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3Principal Act

In this Act, the Wrongs Act 1958 is called the Principal Act.

PART 2—AMENDMENT OF WRONGS ACT 1958

Division 1—Amendment of Part VB

4Definitions for the purposes of Part VB

In section 28B of the Principal Act, for the definition of dependants substitute—

"dependants, in relation to a claimant, means—

(a)any persons who are wholly, mainly or in part dependent on the claimant at the time that the liability in respect of which the claim is made arises; or

(b)any unborn children of the claimant (including unborn children derived by adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time;".

5Damages for past or future economic loss—maximum for loss of earnings etc.

For section 28F(2) of the Principal Act substitute—

"(2)The maximum amount of damages that may be awarded for each week of the period of loss of earnings is an amount that is 3 times the amount of average weekly earnings at the date of the award.".

6Fixing damages for non-economic loss

In section 28G of the Principal Act, for "$371 380" substitute "$577 050".

7Section 28H substituted and new sections 28HAA and 28HAAB inserted

For section 28H of the Principal Act substitute—

"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—

Ais the amount specified in section 28G or, if that amount has been varied in accordance with this section, that amount as last so varied;

Bis 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;

Cis 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.

28HAAIndexation—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.

28HAABIndexation—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.

Note

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.".

8New section 28ID substituted

For section 28ID of the Principal Act substitute—

"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.

Note

Subsections (2) to (5) and section 28IE do not apply to certain actions for damages—see section 28IF.".

9Application of sections 28ID and 28IE

(1)For the heading to section 28IF of the Principal Act substitute—

"Sections 28ID(2) to (5) and 28IE do not apply to certain actions for damages".

(2)Section 28IF(1) of the Principal Act is repealed.

(3)In section 28IF(2) of the Principal Act, for "Sections 28ID" substitute "Sections 28ID(2) to (5)".

10New sections 28LACA to 28LACC inserted

After section 28LAC of the Principal Act insert—

"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.

(2)Without limiting subsection (1)—

(a)section 28F, as amended by section 5 of the Wrongs Amendment Act 2015, applies to 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.

28LACBPower 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 (other than the Charter of Human Rights and Responsibilities Act 2006).

28LACCRegulations dealing with transitional matters—Wrongs Amendment Act 2015

(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Division 1 of Part 2 of the Wrongs Amendment Act 2015, including any repeals and amendments made by that Division.

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on and after the date that the Wrongs Amendment Act 2015 receives the Royal Assent; and

(b)be of limited or general application; and

(c)differ according to differences in time, place or circumstances; and

(d)leave any matter or thing to be decided by a specified person or specified class of persons; and

(e)provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section.

(3)Regulations made under this section have effect despite anything to the contrary—

(a)in any Act (other than this Part or the Charter of Human Rights and Responsibilities Act 2006); or

(b)in any subordinate instrument.

(4)This section is repealed on the second anniversary of the day on which it comes into operation.".

Division 2—Amendment of Part VBA

11Definitions for the purposes of Part VBA

In section 28LB of the Principal Act, for the definition of threshold level substitute—

"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.".

12New section 28LZMA inserted

After section 28LZM of the Principal Act insert—

"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.".

13New sections 28LZS to 28LZU inserted

After section 28LZR of the Principal Act insert—

"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.

28LZTPower 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 Act 2006).

28LZURegulations dealing with transitional matters—Wrongs Amendment Act 2015

(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Division 2 of Part 2 of the Wrongs Amendment Act 2015, including any repeals and amendments made by that Division.

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on and after the date that the Wrongs Amendment Act 2015 receives the Royal Assent; and

(b)be of limited or general application; and

(c)differ according to differences in time, place or circumstances; and

(d)leave any matter or thing to be decided by a specified person or specified class of persons; and

(e)provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section.

(3)Regulations made under this section have effect despite anything to the contrary—

(a)in any Act (other than this Part or the Charter of Human Rights and Responsibilities Act 2006); or

(b)in any subordinate instrument.

(4)This section is repealed on the second anniversary of the day on which it comes into operation.".

PART 3—REPEAL OF AMENDING ACT

14Repeal of amending Act

This Act is repealed on the first anniversary of its commencement.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 16 September 2015

Legislative Council: 8 October 2015

The long title for the Bill for this Act was "A Bill for an Act to amend the Wrongs Act 1958 in relation to maximum amounts of damages for economic loss and non-economic loss, damages for loss of capacity to care for dependants in limited circumstances, threshold impairment levels for psychiatric and spinal injury, certain proceedings to which Part VBA of that Act applies and for other purposes."