Untitled document

Accident Compensation (Common Law and

Benefits) Act 2000

Act No. 26/2000

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Medical question (section 5 amended)	3
4.	Regular overtime and shift allowances (section 5A amended)	3
5.	Medical questions (section 45 amended)	5
6.	Evidence of consultants (section 48 amended)	6
7.	Referral of medical question by consent (new section 55A)	6

55A. Referral of medical question by consent 6

8.	Consequential amendment of section 58	7
9.	Deputy Convenor (section 63 amended)	7
10.	Protection of consultants (section 63 amended)	8
11.	Medical Panels (section 65 amended)	8
12.	Ministerial guidelines (section 65 amended)	9
13.	A.M.A Guides (section 91 amended)	9
14.	Dependent children (section 92A amended)	10
15.	Compensation for non-economic loss (section 98C amended)	10
16.	Claims process (section 104B amended)	12
17.	Worker has choice (section 104B amended)	15
18.	Common law actions (new Division 8A inserted)	18
Division 8A—Actions in respect of injuries arising on or after
20 October 1999	18
134AA. Actions for damages	18
134AB. Actions for damages	19
134AC. Effect of decision on application	39
134AD. Hearing of Appeal	40
134AE. Giving of reasons	40
134AF. Directions	40
19.	Legal costs order (new section 134AG)	41
134AG. Legal costs order	41
20.	Consequential amendments	42

i

Section Page

21.	Application of section 134A	43
22.	Section 135AC substituted	43
135AC. Limitation of Actions Act 1958	43
23.	Amendment of section 135B	44
24.	Structured settlements (new section 135D)	44
135D. Structured settlements	44
25.	Recovery provisions	46
26.	Compensation for pain and suffering (new section 138B)	49

138B. Compensation for pain and suffering 49

27.      Amendment of Accident Compensation (WorkCover

Insurance) Act 1993 50
28.	Amendment of Transport Accident Act 1986 51

29.      Compensation for pain and suffering (new section 107A inserted

in Transport Accident Act 1986) 51
107A. Compensation for pain and suffering 51
30.	Amendment of Dangerous Goods Act 1985 52
31.	Consequential amendment 53
32.	Supreme Court-limitation of jurisdiction 54
252D. Supreme Court-limitation of jurisdiction 54
33.	Supreme Court-limitation of jurisdiction 54
132B. Supreme Court-limitation of jurisdiction 54

═══════════════

NOTES 55

ii

Victoria

No. 26 of 2000

Accident Compensation (Common Law

and Benefits) Act 2000†

[Assented to 30 May 2000]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to—

(a)

provide for the restoration of common law 20 October 1999;

(b) increase the amount of compensation payable for non-economic loss;

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 2

(c) provide for regular payments for overtime and shift allowances to be included when calculating a worker's weekly payments for

the first 26 weeks;

(d)

make miscellaneous amendments to the improve the operation of the Act;

(e) Transport Accident Act 1986, the Accident
Compensation (WorkCover Insurance)

amend the Dangerous Goods Act 1985, the Development Act 1995.

2. Commencement

(1) This section and sections 1, 3, 5, 6, 7, 8, 9, 10, 11,

12, 13, 16, 22, 23(2) and 32 come into operation
on the day after the day on which this Act receives
the Royal Assent.

(2) Section 23(1) is deemed to have come into

operation on 15 June 1994.

(3) Sections 27 and 28 are deemed to have come into operation on 1 July 1997.

(4) Section 14 is deemed to have come into operation on 12 November 1997.

(5) Sections 18, 20 and 21 are deemed to have come into operation on 20 October 1999.

(6) Sections 26 and 29 are deemed to have come into operation on 13 April 2000.

(7) Section 15 comes into operation on 1 July 2000. (8) Subject to sub-section (9), sections 4, 17, 19, 24,

25, 30, 31 and 33 come into operation on a day or
days to be proclaimed.

Accident Compensation (Common Law and Benefits) Act 2000

s. 3 Act No. 26/2000

(9) If a provision referred to in sub-section (8) does

not come into operation before 1 January 2001, it
comes into operation on that day.

3. Medical question (section 5 amended)

In section 5(1) of the Accident Compensation after paragraph (g) insert—

"; or

(h) a question prescribed to be a medical question in respect of an application for leave under section 134AB(16)(b); or

(i)  a question determined to be a medical question by a court hearing an application for leave under section 134AB(16)(b).".

4.  Regular overtime and shift allowances (section 5A amended)

(1) After section 5A(1) of the Accident Compensation Act 1985 insert—

"(1A) For the purposes of sub-section (1), in

calculating a worker's weekly payments for the first 26 weeks under sections 93CA and 93CB, payments for regular overtime and
regular shift allowances are to be included in
the worker's pre-injury average weekly

earnings but only if—

(a)

during the relevant period under sub- overtime or shift work in accordance with a regular and established pattern; and

(b) that pattern was substantially uniform in the number of hours of overtime worked; and

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 4

(c) work overtime or shift work in
accordance with that pattern if not for
the incapacity resulting from or

the worker would have continued to relevant injury.

(1B) Sub-section (1A) and sub-section (4) (as

amended by section 4 of the Accident Benefits) Act 2000) apply in respect of a claim for weekly payments given, served or lodged on or after the commencement of section 4 of the Accident Compensation (Common Law and Benefits) Act 2000.

(1C) This section as in force before the

commencement of section 4 of the Accident Benefits) Act 2000 continues to apply in respect of a claim for weekly payments given, served or lodged before that commencement.".

(2) In section 5A(4) of the Accident Compensation

Act 1985 after "shall" insert ", subject to sub- section (1A),".

(3) After section 114(2)(c)(ii) of the Accident

Compensation Act 1985 insert—

"; or

(iii) allowances are no longer included in the

payments for regular overtime or shift earnings.".

Accident Compensation (Common Law and Benefits) Act 2000

s. 5 Act No. 26/2000

5. Medical questions (section 45 amended)

(1) In section 45(1)(b) of the Accident

Compensation Act 1985, after "must" insert
", subject to sub-sections (1B) and (1C),".

(2) After section 45(1) of the Accident Compensation Act 1985 insert— '(1A) This section extends to, and applies in

respect of, an application for leave under

section 134AB(16)(b)—

(a)	so as to enable in accordance with sub- section (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of "medical question" in section 5(1)); or
(b)	so as to require in accordance with sub- section (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of "medical question" in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—

for the opinion of a Medical Panel.'.

(3) Before section 45(2) of the Accident

Compensation Act 1985 insert—

"(1B) The County Court may refuse to refer a

medical question to a Medical Panel on an application under sub-section (1)(b) if the County Court is of the opinion that the
referral would, in all the circumstances,
constitute an abuse of process.

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 6

(1C) The County Court has on an application

under sub-section (1)(b) the discretion as to the form in which the medical question is to be referred to a Medical Panel.".

6. Evidence of consultants (section 48 amended)

After section 48(2) of the Accident Compensation Act 1985 insert— "(3) A consultant engaged to provide expert

advice to a Medical Panel is competent to give evidence as to matters relating to that expert advice, but the consultant may not be
compelled to give any such evidence.".

7.  Referral of medical question by consent (new section 55A)

(1) After section 55 of the Accident Compensation Act 1985 insert—

"55A. Referral of medical question by consent

(1) Without limiting any other provision of this

Act, the Authority or a self-insurer may
apply to the Senior Conciliation Officer in
accordance with this section for a medical
question relevant to a claim for
compensation by a worker to be referred by a
Conciliation Officer to a Medical Panel.

(2) The Authority or a self-insurer can only

make an application under this section with the consent of the worker and in the absence of a dispute.

(3) If a Conciliation Officer is satisfied after

considering an application under this section

that—

(a) the medical question is in an appropriate form; and

Accident Compensation (Common Law and Benefits) Act 2000

s. 8 Act No. 26/2000

(b)	the worker has given informed and genuine consent; and
(c)	the medical question is relevant and would assist in the consideration and management of the worker's claim; and
(d)	the Authority or the self-insurer, and the worker, have provided all the relevant documents and information—

the Conciliation Officer must refer the
medical question to a Medical Panel.

(4) The Authority or a self-insurer must bear all the costs reasonably incurred by a worker in relation to an application under this

section.".

8. Consequential amendment of section 58

In section 58(3) of the Accident Compensation insert "or an application under section 55A".

9. Deputy Convenor (section 63 amended)

For section 63(3) of the Accident Compensation
Act 1985 substitute—

"(3) From the list of members under sub-section

(2), the Minister—

(a) must appoint a Convenor; and

(b) may appoint a Deputy Convenor.

(3A) The Deputy Convenor may, subject to the

direction of the Convenor, exercise the functions and powers conferred on the Convenor by or under this Act.

(3B) In the temporary absence of the Convenor,

the Deputy Convenor has, and may exercise,
the functions and powers conferred on the
Convenor by or under this Act.".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 10

10. Protection of consultants (section 63 amended)

After section 63(6) of the Accident Compensation Act 1985 insert—

"(6A) A matter or thing done or omitted to be done in the provision of expert advice to a that purpose does not, if the matter or thing was done or omitted in good faith, subject the consultant personally to any action, liability, claim or demand.".

11. Medical Panels (section 65 amended)

(1) After section 65(6) of the Accident

Compensation Act 1985 insert—

"(6A) A person or body referring a medical

question to a Medical Panel must submit a

document to the Medical Panel specifying—

(a)	the injury or alleged injury to, or in respect of, which the medical question relates;
(b)	the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.

(6B) A person or body referring a medical

question to a Medical Panel must submit
copies of all documents relating to the
medical question in the possession of that
person or body to the Medical Panel.".

(2) Section 67(4A) of the Accident Compensation Act 1985 is repealed.

Accident Compensation (Common Law and Benefits) Act 2000

s. 12 Act No. 26/2000

12. Ministerial guidelines (section 65 amended)

For section 65(8) of the Accident Compensation
Act 1985 substitute—

"(8) The Minister may for the purposes of—

(a)	ensuring procedural fairness in the procedures of the Medical Panels; and
(b)	facilitating the proper administration of the Medical Panels—

issue guidelines as to the procedures of

Medical Panels.".

13. A.M.A Guides (section 91 amended)

(1) For section 91(1)(a)(i) of the Accident Compensation Act 1985 substitute— "(i) the A.M.A Guides; or".

(2) In section 91(6) of the Accident Compensation

Act 1985, after "apply" insert ", subject to any regulations made for the purposes of this section,".

(3) After section 91(7) of the Accident

Compensation Act 1985 insert—

"(7A) For the purposes of section 134AB—

(a)	if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; and
(b)	impairments from unrelated injuries or causes are to be disregarded in making an assessment.".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 14

(4) After section 91(7A) of the Accident
Compensation Act 1985 insert—

"(7B) Regulations made under this Act may modify the A.M.A Guides.".

(5) In section 91(8) of the Accident Compensation

Act 1985, after "Act" insert "and any regulations made under this Act".

14. Dependent children (section 92A amended)

After section 92A(8) of the Accident
Compensation Act 1985 insert—

"(8A) If the worker does not leave a dependent spouse but leaves a dependent child (not being an orphan child) or a dependent child

(not being an orphan child) and any other
dependent children (including any other
orphan children), that dependent child is, or
if more than one, each of those dependent
children are, entitled to the amount of
compensation being such share of a sum not
exceeding $175 000 which the County Court
considers is reasonable and appropriate to
the injury to the dependent child or, if more
than one dependent child, to those dependent
children.".

15.  Compensation for non-economic loss (section 98C amended)

(1) In section 98C(2) of the Accident Compensation

Act 1985—

(a) in paragraph (b) in the formula—

(i) for "$5000" substitute "$10 300";
(ii) for "$2000" substitute "$2060";

Accident Compensation (Common Law and Benefits) Act 2000

s. 15 Act No. 26/2000

(b) in paragraph (c) in the formula—

(i) for "$45 000" substitute "$51 500";

(ii) for "$3250" substitute "$3220";

(c) in paragraph (d) in the formula—

(i) for "$175 000" substitute "$180 300";

(ii) for "$12 500" substitute "$12 880";

(d) in paragraph (e) for "$300 000" substitute "$309 100".

(2) In section 98C(3) of the Accident Compensation

Act 1985—

(a) in paragraph (b) in the formula—

(i) for "$10 000" substitute "$10 300";

(ii) for "$3250" substitute "$3350";

(b) in paragraph (c) in the formula—

(i) for "$75 000" substitute "$77 300";

(ii) for "$5000" substitute "$5150";

(c) in paragraph (d) in the formula—

(i) for "$175 000" substitute "$180 300";

(ii) for "$12 500" substitute "$12 880";

(d)	in paragraph (e) for "$300 000" substitute "$309 100";
(e)	in paragraphs (c) and (d) for "not less" substitute "more".

(3) In section 98C(4) of the Accident Compensation
Act 1985 for "$45 000" substitute "$46 300".
(4) In sections 98C(7) and 98C(8) of the Accident

Compensation Act 1985 for "$300 000" substitute "$309 100".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 16

16. Claims process (section 104B amended)

(1) After section 104B(1) of the Accident

Compensation Act 1985 insert—

"(1A) Subject to sub-section (1B), a claim for

compensation under section 98C or 98E, not being a claim for compensation for industrial deafness, can not be made before the expiry
of the period of 12 months after the date of
the relevant injury.

(1B) Despite sub-section (1A), the Authority or a

self-insurer may receive a claim for
compensation under section 98C or 98E
before the expiry of the period of 12 months
after the date of the relevant injury if the
relevant injury has stabilised.

(1C) If liability has been accepted or determined in respect of a prior claim for compensation for an injury, the Authority or a self-insurer may after the expiry of the period of 12

months after the date of the relevant injury
and without a claim having been made under
section 98C or 98E, request the worker to
attend an independent examination under
sub-section (4).".

(2) For section 104B(5)(a) of the Accident Compensation Act 1985 substitute— "(a) assessments in accordance with section 91 as

to the degree of permanent impairment, if
any, of the worker resulting from the injury
to the worker—

(i)  for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and

(ii)  for the purposes of sections 134AB(3) and 134AB(15); and".

Accident Compensation (Common Law and Benefits) Act 2000

s. 16 Act No. 26/2000

(3) After section 104B(5) of the Accident

Compensation Act 1985 insert—

"(5A) Unless sub-section (5B) applies, an

assessment under this section can only be made in respect of one injury of a worker.

(5B) If a worker has more than one injury arising out of the same event or circumstance, all of those injuries must be included in the one

assessment.

(5C) If the independent examination has been

requested by the Authority or a self-insurer
under sub-section (1C), the Authority or self-
insurer must give the worker a written
statement of the injury or injuries to be
included in the assessments.

(5D) A worker may within 60 days of receiving a

written statement under sub-section (5C)—

(a)	make a claim for compensation under section 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance; or
(b)	advise the Authority or self-insurer that he or she disputes the statement.

(5E) If the worker does not make a claim or dispute the statement within the period specified under sub-section (5D), the injury

or injuries specified in the written statement are deemed to be the only injury or injuries arising from the same event or circumstance

which are to be included in the assessments.

(5F) If the worker was not 18 years of age at the

time of the injury, the assessments of the
injury can not be made until the worker
attains the age of 18 years.".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 16

(4) In section 104B of the Accident Compensation

Act 1985—

(a)	in sub-section (6) for "assessment" (where twice occurring) substitute "assessments";
(b)	in sub-section (7) for "the assessment and the entitlement to compensation" substitute "each of the assessments and, if the worker accepts both of the assessments, whether or not the worker accepts or disputes the entitlement to compensation, if any, under section 98C or 98E";
(c)	in sub-section (8) for "the assessment" substitute "both of the assessments";

(d) in sub-section (9)—

(i)  for "the assessment and the entitlement to compensation" substitute "either of the assessments";

(ii)  after "injury to the worker" insert "for both the purposes specified in sub- section (5)(a)".

(5) After section 104B(13) of the Accident

Compensation Act 1985 insert—

"(14) This section as amended by section 16 of the

Accident Compensation (Common Law and Benefits) Act 2000 applies in respect of—

(a) section 98C given, served or lodged on
or after the commencement of section
16 of the Accident Compensation

all claims for compensation under 2000;

(b) an assessment for the purposes of sections 134AB(3) and 134AB(15) in

Accident Compensation (Common Law and Benefits) Act 2000

s. 17	Act No. 26/2000
respect of an injury to a worker on or after 20 October 1999 whose claim for compensation under section 98C was given, served or lodged before the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000;

(c) a claim specified in sub-section (15). (15) If a worker has given, served or lodged a

claim for compensation under section 98C before the commencement of section 16 of the Accident Compensation (Common

Law and Benefits) Act 2000 and on or after subsequent claim.
that commencement claims compensation
under section 98C for any other injury which
arose from the same event or circumstance in
respect of which the injury the subject of the
previous claim arose, this section as
amended by section 16 of the Accident
Compensation (Common Law and

(16) Subject to sub-section (14), this section as in

force before the commencement of section
16 of the Accident Compensation
(Common Law and Benefits) Act 2000
continues to apply in respect of all claims for
compensation under section 98C given,
served or lodged before the commencement
of section 16 of the Accident Compensation
(Common Law and Benefits) Act 2000.".

17. Worker has choice (section 104B amended)

(1) In section 104B(6) of the Accident

Compensation Act 1985, after "98E" insert "and
of the consequences as specified in sub-section
(11A) of confirming in writing that he or she

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 17

wishes to receive any compensation to which he

or she is entitled".

(2) In section 104B(7) of the Accident

Compensation Act 1985, after "98E" insert "and if the worker accepts the entitlement to compensation, whether or not he or she wishes to receive the compensation to which he or she is entitled".

(3) For section 104B(8) of the Accident

Compensation Act 1985 substitute—

"(8) If the worker has advised the Authority or

self-insurer under sub-section (7) that the
worker accepts both of the assessments and
the entitlement to compensation, subject to
section 134AB(36), the Authority or self-
insurer must within 14 days of being advised
by the worker, either under sub-section (7) or
at a later date, that he or she wishes to
receive the compensation to which he or she

is entitled—

(a)	if the entitlement is under section 98C, make payments in accordance with section 98D; or
(b)	if the entitlement is under section 98E, pay the amount specified for the total loss under section 98E.".

(4) For section 104B(10) of the Accident

Compensation Act 1985 substitute—

"(10) The Authority or self-insurer must within 14 days of obtaining the opinion of the worker of the opinion and the entitlement of the worker, if any, under section 98C or section 98E and of the consequences as specified in sub-section (11A) of confirming

Accident Compensation (Common Law and Benefits) Act 2000

s. 17 Act No. 26/2000

in writing that he or she wishes to receive
any compensation to which he or she is
entitled.

(10A) The worker must within 60 days of being advised by the Authority or self-insurer of the entitlement of the worker in accordance

with sub-section (10), advise the Authority
or self-insurer whether or not he or she
wishes to receive the compensation to which
he or she is entitled.

(10B) Subject to section 134AB(36), the Authority or self-insurer must, within 14 days of being advised by the worker either under sub-

section (10A) or at a later date that he or she wishes to receive the compensation to which he or she is entitled—

(a)	if the entitlement is under section 98C, make payments in accordance with section 98D; or
(b)	if the entitlement is under section 98E, pay the amount specified for the total loss under section 98E.".

(5) After section 104B(11) of the Accident

Compensation Act 1985 insert—

"(11A) If a worker confirms in writing to the

Authority or self-insurer under this section that he or she wishes to receive compensation in respect of the relevant injury or injuries under section 98C or 98E, he or she is precluded from subsequently recovering damages for pain and suffering in respect of that relevant injury or injuries.".

(6) After section 104B(16) of the Accident
Compensation Act 1985 insert—
Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

"(17) This section as amended by section 17 of the

Accident Compensation (Common Law and Benefits) Act 2000 applies in respect of—

(a) section 98C given, served or lodged on
or after the commencement of section
17 of the Accident Compensation

all claims for compensation under 2000;

(b)	a request made under sub-section (1C) on or after that commencement;
(c)	an assessment on or after that commencement for the purposes of sections 134AB(3) and 134AB(15) in respect of an injury to a worker on or after 20 October 1999.".

18. Common law actions (new Division 8A inserted)

Before section 134A of the Accident

Compensation Act 1985 insert—

'Division 8A—Actions in respect of injuries

arising on or after 20 October 1999

134AA. Actions for damages

A worker who is or the dependants of a worker who are or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 shall not, in proceedings in respect of the injury, recover any damages in respect of pecuniary loss except—

(a) in proceedings in respect of an injury or death arising out of a transport accident within the meaning of the Transport

Accident Compensation (Common Law and Benefits) Act 2000

s. 18	Act No. 26/2000
Accident Act 1986 on or after 20 October 1999—

(i) the Wrongs Act 1958, against the
employer or any other person,
subject to and in accordance with

otherwise than under Part III of 1986; or

(ii) under Part III of the Wrongs Act 1958 against the employer or the employer and any other person,

subject to and in accordance with
the Transport Accident Act
1986; or

(iii) under Part III of the Wrongs Act 1958 against a person other than the employer, subject to and in

accordance with the Transport
Accident Act 1986; or

(b) in proceedings to which the employer is not a party where, by reason of section 83(1), the injury is deemed to have arisen out of or in the course of employment, if the worker's place of employment is a fixed place of employment and the injury did not occur while the worker was present at that fixed place of employment.

134AB. Actions for damages

(1) A worker who is, or the dependants of a

worker who are or may be, entitled to
compensation in respect of an injury arising
out of or in the course of, or due to the nature
of, employment on or after 20 October
1999—

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—

(i) Accident Act 1986 and sub-

in accordance with the Transport of this section; or

(ii) to in section 134AA(b) and in
accordance with sub-sections

in proceedings of a kind referred section; or

(iii)  if sub-paragraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and

(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except—

(i) to in a paragraph of section
134AA and in accordance with

in proceedings of a kind referred (36)(a) of this section; or

(ii)  if sub-paragraph (i) does not apply, as permitted by and in accordance with this section.

(2) A worker may recover damages in respect of

an injury arising out of, or in the course of,
or due to the nature of, employment if
employment of that nature was a significant
contributing factor, and the injury is a
serious injury and arose on or after 20
October 1999.

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(3) A worker may not bring proceedings in accordance with this section unless—

(a)

assessments of the degree of made under section 104B; and

(b) the worker has made an application under sub-section (4).

(4) A worker may only make an application after the worker—

(a)	has advised the Authority or self- insurer under section 104B(7) that he or she accepts the assessments; or
(b)	has received the advice of the Authority or self-insurer under section 104B(10).

(5) An application under sub-section (4)—

(a) must be in a form approved by the Authority; and

(b) must be accompanied by—

(i) a copy of all medical reports; and

(ii)  affidavits attesting to such other material—

existing when the application is made and of
which the worker or his or her legal
representative is aware and on which the
worker intends to rely, or the substance of
which the worker intends to adduce in
evidence, in proceedings in accordance with
this section or in any related proceedings.

(6) If the worker unreasonably refuses to comply

with a request by the Authority or self-
insurer that the worker submit to a medical
examination, to be paid for by the Authority
or self-insurer, or in any way hinders such an

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

examination, the period between the date on
which the worker so refused to comply, or
hindered the examination, and the date of the
examination must be disregarded in
calculating the period referred to in sub-
section (7).

(7) The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section

134AF) of receiving the application, advise

the worker in writing—

(a)	that the worker is deemed to have a serious injury; or
(b)	if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under sub-section (16)(a).

(8) The advice referred to in sub-section (7)(a) must be accompanied by—

(a) a copy of all medical reports; and

(b) affidavits attesting to such other material—

existing when the advice is given and of
which the employer, Authority or self-
insurer or the legal representative of any of
them is aware and on which they intend to
rely or the substance of which they intend to
adduce in evidence in proceedings brought
by the worker in accordance with this section
or in any related proceedings.

(9) If the Authority or self-insurer fails to advise

the worker in writing within the period
referred to in sub-section (7) as required by
sub-section (7), the worker is deemed to
have suffered a serious injury.

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(10) The worker, within 28 days after receiving

the advice referred to in sub-sections (7) and (8), may give to the Authority or self-insurer an affidavit attesting to such further material (whether or not existing before the worker
made the application under sub-section (4))
in rebuttal of the material (other than
medical reports) attested to in affidavits
accompanying the advice.

(11) In proceedings in accordance with this

section, a medical report or other material is
inadmissible in evidence—

(a) on behalf of the Authority or self- insurer if—

(i) employer, Authority or self-
insurer, or the legal representative

it was in existence, and the before the date by which the advice of the Authority or self- insurer is required to be given under sub-sections (7) and (8); and

(ii)  it had not been disclosed to the worker in accordance with sub- sections (7) and (8); or

(b) on behalf of the worker if—

(i) or the worker's legal
representative was aware of it,
before the expiration of 28 days

it was in existence, and the worker sub-sections (7) and (8); and

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(ii)  it had not been disclosed to the other party in accordance with sub-section (5) or (10).

(12) The worker must not commence proceedings in accordance with this section, other than an application under sub-section (16)(b) or the

commencement of proceedings with the
consent of the Authority under sub-section

(22), unless—

(a)	the worker and the Authority or self- insurer hold, or begin, a conference within 21 days after the response date; and
(b)	the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)	if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)	the Authority or self-insurer does not accept that counter offer within 21 days after it is made; and
(e)	the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under sub-section (14), not more than 30 days after the day on which the counter offer is deemed to have been made.

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(13) If the Authority or self-insurer does not make a statutory offer under sub-section (12), the Authority or self-insurer is deemed,

for the purposes of that sub-section, to have
made, on the 60th day after the response
date, a statutory offer of nothing.

(14) If the Authority or self-insurer makes a

statutory offer under sub-section (12) and the
worker does not make a statutory counter
offer under that sub-section, the worker is
deemed, for the purposes of that sub-section,
to have made, on the 21st day after the
statutory offer was made, a statutory counter
offer of the maximum amount that may be
awarded as damages under sub-section
(22)(a) and (b).

(15) If the assessment under section 104B of the

degree of impairment of the worker as a
result of the injury is 30 per centum or more,
the injury is deemed to be a serious injury
within the meaning of this section.

(16) If the assessment under section 104B of the

degree of impairment of the worker as a
result of the injury is less than 30 per
centum, the person may not bring
proceedings for the recovery of damages in
respect of the injury unless—

(a) the Authority or self-insurer—

(i)  is satisfied that the injury is a serious injury; and

(ii)

issues to the worker a certificate bringing of the proceedings; or

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under sub-section (7) or, with the consent of the Authority under sub-section (20), after that period, gives leave to bring the proceedings.

(17) For the purposes of paragraphs (a) and (b) of sub-section (16), a worker who satisfies sub- paragraph (i) of sub-section (38)(b) but not

sub-paragraph (ii) of that sub-section, is
entitled to bring proceedings in accordance
with sub-section (16)(b) for the recovery of

damages for pain and suffering only.

(18) A copy of an application under sub-section

(16) must be served on the Authority or self- insurer and on each person against whom the applicant claims to have a cause of action.

(19) For the purposes of sub-section (16)(b)—

(a)	a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;
(b)	for the purposes of proving a loss of earning capacity in accordance with sub-section (38), a worker bears the onus of proving any inability to be
retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(c) no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue estoppel.

(20) If, on the application of a worker, the

Authority is satisfied that—

(a) proceedings in accordance with this

the worker is unable to commence section (12) or (16)(b); and

(b) the failure to comply with sub-section (12) or (16)(b) was not due to any fault or omission of the worker or the worker's legal representative—

the Authority may consent to the
commencement of the proceedings or
bringing of an application under sub-section
(16)(b).

(21) If a worker makes an application for leave to

bring proceedings in accordance with sub-
section (16)(b) and fails to satisfy a court
that the injury is a serious injury, the worker
is not entitled to make a further application
for leave to bring proceedings in respect of
the same claimed cause of action.

(22) A court must not, in proceedings in

accordance with this section, award to a

worker in respect of an injury—

(a) pecuniary loss damages—

(i) assessed, before the reduction (if

if the total pecuniary loss damages Wrongs Act 1958 and before the reduction (if any) under sub-

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

section (25), is less than $35 120
or that amount as varied in
accordance with section 100 as at
the date of the award; or

(ii)  in excess of $790 610 or that amount as varied in accordance with section 100 as at the date of the award; or

(b) pain and suffering damages—

(i)  if the total pain and suffering damages assessed, before the reduction (if any) under section

26(1) of the Wrongs Act 1958
and before the reduction (if any)
under sub-section (25), is less than
$33 920 or that amount as varied
in accordance with section 100 as
at the date of the award; or

(ii)  in excess of $344 210 or that amount as varied in accordance with section 100 as at the date of the award; or

(c) damages of any other kind, other than damages in the nature of interest.

(23) In the trial of a proceeding brought under this section, a jury must not be informed—

(a)

of the monetary thresholds and under sub-section (22); or

(b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found,

to be a serious injury; or

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(c)	that the Authority or self-insurer has been satisfied that the injury is a serious injury; or
(d)	that the Authority or self-insurer has issued a certificate under sub-section (16)(a).

(24) Damages awarded under this section in

respect of pecuniary loss shall not include
damages in respect of—

(a)	any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in section 99; or
(b)	the value of services of a domestic nature or services relating to nursing and attendance—

(i)  which have been or are to be provided by another person to the person in whose favour the award is made; and

(ii)  for which the person in whose favour the award is made has not paid and is not and will not be liable to pay.

(25) If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect of proceedings referred to in sub-

section (1), the amount of the judgment,
order for damages, settlement or compromise

must be reduced by—

(a) to the extent that it is in respect of pecuniary loss, the amount of compensation (if any) paid otherwise than under section 98C, 98E and 99 or

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000	s. 18
to the extent that section 93(10)(a) of the Transport Accident Act 1986 applies, except any such compensation paid in respect of the whole or any part of the period of 18 months after the relevant transport accident;

(b) to the extent that it is in respect of non- pecuniary loss, the amount of compensation (if any) paid under section 98C and 98E.

(26) If the amount of a judgment is subject to a

reduction under sub-section (25), that
reduction must be made before the reduction
(if any) under section 26(1) of the Wrongs
Act 1958 is made.

(27) Subject to the rules of the court—

(a)

in proceedings relating to an sub-section (16), costs are to be awarded against a party against whom a decision is made; and

(b) proceedings for the recovery of

unless sub-section (28) applies in section—

(i)  if no liability to pay damages is established, costs are to be awarded against the claimant; and

(ii)

if damages are assessed but cannot each party bears its own costs; and

(iii)

if damages are awarded, costs are Authority or self-insurer.

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(28) In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under sub-section (12)—

(a)	if no liability to pay damages is established, the worker must pay the party and party costs of the employer, Authority or self-insurer and the worker's own costs;
(b)	if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under sub- section (12) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's party and party costs and its own costs;
(c)	if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under sub- section (12), the worker must pay the party and party costs of the Authority or self-insurer and the worker's own costs;
(d)	if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under sub- section (12) but less than 90 per cent of the worker's statutory counter offer under that sub-section, each party bears its own costs—

and the court must not otherwise make an
order as to costs.

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(29) For the purpose of the taxing of costs in

proceedings to which this section applies,
any applicable scale of costs has effect as if
amounts in the scale were reduced by 20 per
cent.

(30) A person who represents or acts on behalf of a worker is not entitled—

(a)	to recover any costs from that worker in respect of any proceedings under this section; or
(b)	to claim a lien in respect of those costs; or
(c)	to deduct those costs from any sum awarded as damages—

unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this

section by the worker.

(31) The court, on the application of—

(a) the worker; or

(b) the person representing or acting on behalf of the worker—

may determine the amount of costs to be
awarded to the person representing or acting
on behalf of the worker.

(32) Where an award of damages in accordance

with this section is to include an amount,
assessed as a lump sum, in respect of
damages for future loss which is referable
to—

(a) deprivation or impairment of earning capacity; or

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(b)	loss of the expectation of financial support; or
(c)	a liability to incur expenditure in the future; or

(d) any loss suffered by a dependant—

the present value of the future loss must be
qualified by adopting a discount rate of 6 per
centum in order to make appropriate
allowance for inflation, the income from
investment of the sum awarded and the effect
of taxation on that income.

(33) Except as provided by sub-section (32),

nothing in that sub-section affects any other
law relating to the discounting of sums
awarded as damages.

(34) A court must not, in relation to an award of

damages in accordance with this section,
order the payment of interest, and no interest
shall be payable, on any amount of damages,
other than damages referable to loss actually
suffered before the date of the award, in
respect of the period from the date of the
death of or injury to the person in respect of
whom the award is made to date of the
award.

(35) Except as provided by sub-section (34),

nothing in that sub-section affects any other
law relating to the payment of interest on any
amount of damages, other than special
damages.

(36) If judgment is obtained, or a compromise or

settlement made in respect of proceedings
referred to in sub-section (1) in respect of an
injury, the Authority, the employer or self-
insurer is not liable—

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(a) where pecuniary loss damages are awarded, to make payments under section 93CA, 93CB, 93CC or 93CD in

respect of the injury; or

(b) where pain and suffering damages are awarded, to make payments under section 98C or 98E in respect of the injury.

(37) In this section—

"determination date", in relation to an

injury, means the date on which—

(a) section 104B to have a degree of
impairment of 30 per centum or
more, the date on which the

if the worker is assessed under section (7); or

(b) if the worker is assessed under section 104B to have a degree of impairment of less than 30 per centum, the date—

(i)  on which a certificate is issued under sub-section (16)(a) in relation to the injury; or

(ii)  on which a court gives leave under sub-section (16)(b)—

whichever is applicable;

"medical report" means—

(a) matters concerning the worker,

a statement in writing on medical and

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(b) medical practitioner intends
should be read with the statement,
whether the document was in
existence at the time the statement
was made or was a document
which he or she obtained or

includes any document which the existence subsequently;

"pain and suffering damages" means

damages for pain and suffering, loss of
amenities of life or loss of enjoyment of
life;

"pecuniary loss damages" means damages

for loss of earnings, loss of earning
capacity, loss of value of services or
any other pecuniary loss or damage;

"response date" means the date on which

the period of 28 days after the
determination date expires;

"serious injury" means—

(a)	permanent serious impairment or loss of a body function; or
(b)	permanent serious disfigurement; or
(c)	permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d) loss of a foetus.

(38) For the purposes of the assessment of

"serious injury" in accordance with sub-

sections (16) and (19)—

(a) the following definitions apply—

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000	s. 18
"foetus" has the same meaning as in

section 98C(5);

"income from personal exertion" has

the same meaning as in section
6(2) of the Transport Accident
Act 1986;

(b)	the terms "serious" and "severe" are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or (ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)	an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

Accident Compensation (Common Law and Benefits) Act 2000

s. 18 Act No. 26/2000

(d)	a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of sub-section (16)
unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)	(a), (b) or (c) of the definition of serious injury in sub-section (37), the Authority or self-insurer shall not grant a certificate under sub-section (16)(a) and a court shall not grant leave under sub-section (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker

where a worker relies upon paragraph requirements of paragraph (c) or (d), as the case may be, that—

(i)  at the date of a decision under sub-section (16)(a) or at the date of the hearing of an application under sub-section (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

(ii)  the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years

at the date of the injury) will after
the date of the decision or of the
hearing continue permanently to
have a loss of earning capacity
which will be productive of
financial loss of 40 per centum or
more;

(f)	for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's
gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)	a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would
have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any

Accident Compensation (Common Law and Benefits) Act 2000

s. 18	Act No. 26/2000
employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;

(i)  the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the

purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(j)	the assessment of "serious injury" shall be made at the time that the application is heard by the court;
(k)	the monetary thresholds and statutory maximums specified by or under sub- section (22) must be disregarded for the
purposes of the assessment of "serious injury".

134AC. Effect of decision on application

A decision granting or refusing leave made on an application made under section 134AB(16)(b) shall be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal.

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 18

134AD. Hearing of Appeal

On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.

134AE. Giving of reasons

The reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be

detailed reasons which are as extensive and
complete as the court would give on the trial

of an action.

134AF. Directions

(1) For the purposes of section 134AB, the

Minister may issue directions for or with respect to procedures under that section.

(2) The directions must be published in the Government Gazette.

(3) The directions may include directions about the provision of information by affidavit and the attending of conferences.

(4) A person to whom a direction under this

section applies, and the legal representatives
and agents of such a person, must comply
with the direction.

(5) The directions may specify that a failure to comply with a particular provision of the

Accident Compensation (Common Law and Benefits) Act 2000

s. 19 Act No. 26/2000

directions has the effect of altering a period

applicable under that section.'.

19. Legal costs order (new section 134AG)

After section 134AF of the Accident

Compensation Act 1985 insert—

"134AG. Legal costs order

(1) The Governor in Council may by Order in Council make a legal costs order—

(a)	specifying the legal costs that may be recovered by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under section 134AB; and
(b)	prescribing or specifying any matter or thing required to give effect to the legal costs order.

(2) A legal costs order—

(a)	must be published in the Government Gazette;
(b)	takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order;
(c)	applies to legal costs incurred on or after the date of commencement of the order.

(3) A legal costs order may—

(a) application by reference to classes of

apply generally or be limited in its factors;

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 20

(b)	apply differently according to different circumstances or factors of a specified kind;
(c)

specify different methods of calculation scales, tables or other means;

(d) without modification) the provisions of
any document, code, standard, rule,
specification or method whether as

apply, adopt or incorporate (with or published at the time the order is made;

(e) authorise any specified person or body to determine or apply a specified matter or thing.

(4) Section 134AB(29) does not apply in

proceedings to which a legal costs order
applies.

(5) This section and any legal costs order made

under this section has full force and effect
notwithstanding anything to the contrary in
the Legal Practice Act 1996, the Supreme
Court Act 1986 or the County Court Act
1958 or in any regulation, rules, order or
other document made under any of those
Acts.".

20. Consequential amendments

(1) In section 39(1A) of the Accident Compensation

Act 1985, after "135A(6A)" insert "or
134AB(20)".

(2) For the heading to Division 9 of Part IV of the

Accident Compensation Act 1985 substitute—

"Division 9—Actions in respect of injuries to

which Division 8A does not apply".

Accident Compensation (Common Law and Benefits) Act 2000

s. 21 Act No. 26/2000

(3) Before section 135C of the Accident
Compensation Act 1985 insert—

"Division 10—Other Actions and Rights". (4) In section 138A of the Accident Compensation

Act 1985, before "this Division" insert "Division

8A, Division 9 and".

21. Application of section 134A

In section 134A(1) of the Accident
Compensation Act 1985, after "12 November

1997" insert "but before 20 October 1999".

22. Section 135AC substituted

For section 135AC of the Accident

Compensation Act 1985 substitute—

"135AC. Limitation of Actions Act 1958

Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—

(a) Act 1958, unless paragraph (b) applies,
unless an application for a
determination from the worker under
section 135A(2B) has been made to the

subject to the Limitation of Actions 1 September 2000; or

(b)

if the cause of action arose before arising from the injury was not known until after 12 November 1997, after the expiration of 3 years after the incapacity was known.".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 23

23. Amendment of section 135B

(1) After section 135B(1) of the Accident
Compensation Act 1985 insert—

"(1AA) The requirement that proceedings in respect of an injury arising before 1 December 1992 must be commenced before 30 June 1994

does not apply to proceedings in respect of
an injury to which section 135A(2)(b) would

otherwise apply.".

(2) After section 135B(1AA) of the Accident

Compensation Act 1985 insert—

"(1AB) For the purposes of calculating the period of time within which a proceeding referred to in sub-section (1AA) must be commenced

under the Limitations of Actions Act 1958, the period commencing on 4 December 1998 and ending on the day on which section
23(2) of the Accident Compensation
(Common Law and Benefits) Act 2000
comes into operation is to be disregarded.

(1AC) It is hereby declared that sub-sections (1AA)

and (1AB) affect the rights of the parties in
the proceedings known as Rizza v Fluor
Daniel GTI (Australia) Pty Ltd and Inline
Courier Systems Pty Ltd v Walker (1998
VSCA 131).".

24. Structured settlements (new section 135D)

After section 135C of the Accident Compensation Act 1985 insert—

"135D. Structured settlements

(1) This section applies if—

(a) an award of damages is made by a court in proceedings under this Act; and

Accident Compensation (Common Law and Benefits) Act 2000

s. 24 Act No. 26/2000

(b)	the plaintiff and the defendant agree in the proceedings that the whole or part of the amount of damages awarded is to
be paid in accordance with an arrangement to be approved by the court.

(2) In deciding whether or not to approve an

arrangement under this section, the court—

(a)	must have regard to such matters as are prescribed for the purposes of this section; and
(b)	may have regard to any other matters that the court considers are relevant.

(3) An arrangement under this section—

(a)	may provide that all or part of the amount of the damages subject to the arrangement are to be paid in the form of periodic payments funded by an annuity or other specified means;
(b)	must provide for any matters as may be prescribed; and
(c)	is subject to such conditions and limitations as may be prescribed.

(4) Subject to this section, an arrangement under this section may only be varied or terminated upon the application of a party to the

arrangement to the court that approved the
arrangement.

(5) The costs of an application under sub-section

(4) must be borne by the party making the
application.".

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 25

25. Recovery provisions

(1) After section 137(5) of the Accident

Compensation Act 1985 insert—

"(5A) If—

(a)	the Authority is required under this Act to pay an amount of compensation in respect of the death or injury of a worker arising out of a transport accident within the meaning of section 3 of the Transport Accident Act 1986 on or after the commencement of section 25 of the Accident Compensation (Common Law and Benefits) Act 2000; and
(b)	the Transport Accident Commission would, if no compensation were payable under this Act in respect of the death or injury, have been liable to make payments in respect of that death or injury under the Transport Accident Act 1986—

the Transport Accident Commission shall, notwithstanding anything to the contrary in the Transport Accident Act 1986, be liable

to make payment to the Authority of an
amount equal to the total amount of
compensation paid or payable under this Act
and any amount paid or payable under an
award of damages or in a settlement of a
claim or action for damages in respect of that

death or injury.

(5B) If—

(a)

a self-insurer has appointed the its agent under section 143A; and

Accident Compensation (Common Law and Benefits) Act 2000

s. 25 Act No. 26/2000

(b)	the self-insurer is required under this Act to pay an amount of compensation in respect of the death or injury of a worker arising out of a transport accident within the meaning of section 3 of the Transport Accident Act 1986 on or after the commencement of section 25 of the Accident Compensation (Common Law and Benefits) Act 2000 and arising during the course of the agency arrangement; and
(c)	the Transport Accident Commission would, if no compensation were payable under this Act in respect of the death or injury, have been liable to make payments in respect of that death or injury under the Transport Accident Act 1986—

the Transport Accident Commission shall, notwithstanding anything to the contrary in the Transport Accident Act 1986, be liable

to make payment to the self-insurer of an
amount equal to the total amount of
compensation paid under this Act in respect

of that death or injury.".

(2) In section 137A of the Accident Compensation

Act 1985 after "137(2)" (wherever occurring) insert "or 137(5A)".

(3) After section 138(4) of the Accident

Compensation Act 1985 insert—

"(5) If the Transport Accident Commission is

liable to make payment to the Authority
under section 137(5A) or to a self-insurer
under section 137(5B) in respect of a death
or injury and the Authority or self-insurer is

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 25

entitled under this section to be indemnified by a third party in respect of the liability, the entitlement of the Authority or self-insurer is subrogated to the Transport Accident

Commission by virtue of this sub-section.".

(4) After section 143A(1) of the Accident

Compensation Act 1985 insert—

"(1A) If a self-insurer has appointed the Transport

of recovery arises under section 137(5B) in
respect of an injury or death, the
arrangement with the Transport Accident

Accident Commission as its agent and a right of claims for compensation for that injury or death is deemed to be irrevocable.".

(5) After section 11(d) of the Transport Accident

Act 1986 insert—
"(e) to manage claims under the Accident

Compensation Act 1985 as an authorised
agent of the Victorian WorkCover Authority
as effectively, efficiently and economically

as possible;

(f) if appointed as an agent of a self-insurer under section 143A of the Accident Compensation Act 1985, to carry out the functions and powers of a self-insurer as effectively, efficiently and economically as possible.".

(6) After section 12(1)(ja) of the Transport Accident

Act 1986 insert—
"(jb) to act as an authorised agent under section 23

of the Accident Compensation Act 1985; (jc) if appointed, to act as an agent of a self-

insurer under section 143A of the Accident
Compensation Act 1985;".

Accident Compensation (Common Law and Benefits) Act 2000

s. 26 Act No. 26/2000

(7) After section 13(4) of the Transport Accident

Act 1986 insert—
"(5) Without limiting or derogating from sub-

section (1), the Commission has power to do all things necessary or convenient to be done for or in connection with—

(a)

acting as an authorised agent under Compensation Act 1985; and

(b) acting as an agent of a self-insurer under section 143A of the Accident Compensation Act 1985.".

(8) After section 27(2)(fa) of the Transport Accident

Act 1986 insert—
"(fb) any money received by the Commission in

relation to its functions under sections

12(1)(jb) and 12(1)(jc);".

(9) After section 27(3)(hb) of the Transport

Accident Act 1986 insert—

"(hc) any payment which the Commission is

required to make in relation to its functions
under sections 12(1)(jb) and 12(1)(jc);".

26.  Compensation for pain and suffering (new section 138B)

After section 138A of the Accident Compensation Act 1985 insert—

"138B. Compensation for pain and suffering

(1) A court must not exercise the powers

conferred by section 86 of the Sentencing compensation for pain and suffering if the compensation would be for pain and suffering to a person—

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000 s. 27

(a)	arising from an injury or death in respect of which it appears to the court that the person has an entitlement to any compensation under this Act; and
(b)	arising from an event that constitutes an offence only against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.

(2) Notwithstanding anything to the contrary in section 86 of the Sentencing Act 1991, this section applies to and in respect of any

offence referred to in sub-section (1)
committed on or after the commencement of
section 26 of the Accident Compensation
(Common Law and Benefits) Act 2000.

(3) For the purposes of sub-section (1)(a), a person is not to be regarded as having an entitlement to any compensation under this

Act if the entitlement would only arise under any or all of sections 99(1)(aa), 99(1)(b) and 92A (only by virtue of sub-section (10)).".

27. Amendment of Accident Compensation (WorkCover Insurance) Act 1993

(1) After section 7(8) of the Accident Compensation (WorkCover Insurance) Act 1993 insert— "(9) A WorkCover insurance policy issued or

deemed to have been issued under this Act
does not indemnify an employer in respect of
any liability of the employer to pay
compensation for pain and suffering awarded
under section 86 of the Sentencing Act
1991.".

Accident Compensation (Common Law and Benefits) Act 2000

s. 28 Act No. 26/2000

(2) After section 59B(1) of the Accident

Compensation (WorkCover Insurance) Act
1993 insert—

"(1A) A deemed contract of insurance does not indemnify an employer in respect of any liability of the employer to pay

compensation for pain and suffering awarded
under section 86 of the Sentencing Act

1991.".

28. Amendment of Transport Accident Act 1986

After section 94(2)(b) of the Transport Accident

Act 1986 insert—

"; or

(c)	in respect of any liability of the owner or driver of a registered motor vehicle or the operator, owner or driver of a railway train
or tram or the manager of the railway or tramway on which a railway train or tram is operated, to pay compensation for pain and suffering awarded under section 86 of the Sentencing Act 1991.".

29.  Compensation for pain and suffering (new section 107A inserted in Transport Accident Act 1986)

After section 107 of the Transport Accident Act

1986 insert—

"107A. Compensation for pain and suffering

(1) A court must not exercise the powers

conferred by section 86 of the Sentencing compensation for pain and suffering if the compensation would be for pain and suffering to a person—

(a) arising from an injury or death in respect of which it appears to the court

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000	s. 30
that the person has an entitlement to any compensation under this Act; and

(b)

arising from an event that constitutes an Act 1986 or any regulations made under any of that Act.

(2) Notwithstanding anything to the contrary in section 86 of the Sentencing Act 1991, this section applies to and in respect of any

offence referred to in sub-section (1)
committed on or after the commencement of
section 29 of the Accident Compensation
(Common Law and Benefits) Act 2000.

(3) For the purposes of sub-section (1)(a), a person is not to be regarded as having an entitlement to any compensation under this

Act if the entitlement would only arise under
either or both of sections 60(1)(ca) and

60(1)(d).".

30. Amendment of Dangerous Goods Act 1985

(1) Section 9(b) of the Dangerous Goods Act 1985 is

repealed.

(2) After section 11(1) of the Dangerous Goods Act 1985 insert—

"(1A) The Authority may appoint any person who

is employed in the Department of Natural
Resources and Environment under the
Public Sector Management and
Employment Act 1998 to be an inspector
for the purposes of a matter relating to the
manufacture, supply, sale, transfer, transport,
storage, handling, use or disposal of
explosives with respect to activities carried
out under the Mineral Resources

Accident Compensation (Common Law and Benefits) Act 2000

s. 30 Act No. 26/2000

Development Act 1990 and the Extractive
Industries Development Act 1995.".

(3) In section 14(2) of the Dangerous Goods Act

1985, after "inspector" insert "appointed under
section 11(1)".

(4) After section 14(2) of the Dangerous Goods Act

1985 insert—
'(2A) The Authority may by instrument in writing

delegate to an authorised person all or any of
the powers, functions, authorities or
discretions of the Authority (except this

power of delegation)—

(a)	to the extent that they relate to the manufacture, supply, sale, transfer, transport, storage, handling, use or disposal of explosives; and
(b)	out under the Mineral Resources Development Act 1990 and the

only with respect to activities carried Act 1995.

(2B) In sub-section (2A), "authorised person"

means—

(a)	the chief mining inspector within the meaning of section 4(1) of the Mineral Resources Development Act 1990; or
(b)

the Chief Inspector of Quarries under Industries Development Act 1995.'.

31. Consequential amendment

Accident Compensation (Common Law and Benefits) Act 2000

Act No. 26/2000

In section 56(1) of the Extractive Industries are repealed.

32. Supreme Court-limitation of jurisdiction
After section 252C of the Accident

Compensation Act 1985 insert—

"252D. Supreme Court-limitation of jurisdiction

It is the intention of sections 134AA,
134AB, 134AC, 134AD, 134AE, 134AG,
134A, 135AC and 138B as inserted or
amended by the Accident Compensation
(Common Law and Benefits) Act 2000, to
alter or vary section 85 of the Constitution

Act 1975.".

33. Supreme Court-limitation of jurisdiction

After section 132A of the Transport Accident

Act 1986 insert—

"132B. Supreme Court-limitation of jurisdiction

It is the intention of section 107A as inserted
by section 29 of the Accident
Compensation (Common Law and
Benefits) Act 2000 to alter or vary

section 85 of the Constitution Act 1975.".

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Accident Compensation (Common Law and Benefits) Act 2000

Notes Act No. 26/2000

NOTES

†

Minister's second reading speech—

Legislative Assembly: 13 April 2000

Legislative Council: 23 May 2000

The long title for the Bill for this Act was "to amend the Accident
Compensation Act 1985 to restore common law actions for damages
with effect from 20 October 1999, to increase compensation for non-
economic loss and to make miscellaneous amendments to that Act, to
amend the Dangerous Goods Act 1985, the Transport Accident Act
1986, the Accident Compensation (WorkCover Insurance) Act 1993
and the Extractive Industries Development Act 1995 and for other

purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 13 April 2000

Legislative Council: 23 May 2000

Absolute majorities:

Legislative Assembly: 11 May 2000

Legislative Council: 24 May 2000, 25 May 2000