Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic)

Wrongs and Other Acts (Law of Negligence) Act

2003

ts	Act No. 102/2003
n
e
m
u	TABLE OF PROVISIONS
c

o	Section	Page
D	PART 1—PRELIMINARY	1

ry	1.	Purposes	1
ta	2.	Commencement	2

n	PART 2—AMENDMENTS TO WRONGS ACT 1958	3
e

3. New Parts X, XI and XII inserted 3

m

ia	PART X—NEGLIGENCE	3
rl	Division 1—Preliminary	3

a	43.	Definitions	3
P	44.	Application of Part	4
d	45.	Exclusions from Part	4
n	46.	Application to contract	5
a	47.	Effect of this Part on the common law	6

n Division 2—Duty of Care 6

o	48.	General principles	6
ti	49.	Other principles	7
la	50.	Duty to warn of risk—reasonable care	7

is Division 3—Causation 8

g	51.	General principles	8
e	52.	Burden of proof	9

L Division 4—Awareness of Risk 9

n	53.	Meaning of obvious risk	9
a
ri	54.	Voluntary assumption of risk	9
55.	No liability for materialisation of inherent risk	10
to	56.	Plaintiff to prove unawareness of risk	10
ic
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i

Section Page

Division 5—Negligence of professionals and persons

professing particular skills 11

57. Definition 11

ts	58.	Standard of care to be expected of persons holding out
n	as possessing a particular skill 12
e	59.	Standard of care for professionals 12
60.	Duty to warn of risk 13
m
u	Division 6—Non-delegable duties and vicarious liability	13

c	61.	Liability based on non-delegable duty	13
o

Division 7—Contributory Negligence 14

D

ry	62.	Standard of care for contributory negligence	14
63.	Contributory negligence can defeat claim	14

ta Division 8—General 14

n	64.	Regulations	14
e	65.	Supreme Court—limitation of jurisdiction	15
m	66.	Transitional	15
ia

rl PART XI—MENTAL HARM 16

a	67.	Definitions	16
P	68.	Application of Part	16
69.	Exclusions from Part	17
d	70.	Application to contract	18
n	71.	Effect of this Part on the common law	18
a	72.	Mental harm—duty of care	19
73.	Limitation on recovery of damages for pure mental
n	harm arising from shock	19
o
ti	74.	Limitation on recovery of damages for consequential
mental harm	20
la	75.	Liability for economic loss for mental harm	21
is	76.	Regulations	21
77.	Supreme Court—limitation of jurisdiction	21
g	78.	Transitional	21
e

L PART XII—LIABILITY OF PUBLIC AUTHORITIES 22

n	79.	Definitions	22
a
ri	80.	Application of Part	23
81.	Exclusions from Part	23
to	82.	Effect of this Part on the common law	24
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ii

Section Page

85.          Exercise of function or decision to exercise does not

create duty 26
86.	Supreme Court—limitation of jurisdiction 26

ts 87. Transitional 26

4. New sections 19A to 19C inserted 27

n	19A.	Limitation on damages for loss of gratuitous care	27
e	19B.	Calculation of damages for gratuitous care	28
m	19C.	Application of sections 19A and 19B	29
u	5.	New sections 23AA, 23AB and 23AC inserted	30
c	23AA. Regulations	30
o	23AB.	Supreme Court—limitation of jurisdiction	30
23AC.	Transitional for gratuitous care	30
D	6.	Contribution—transitional	31
ry	7.	Contributory negligence	31
8.	Definition	31
ta	9.	New section 28HA inserted	32
n	28HA.	Tariffs for damages for non-economic loss	32
e	10.	New sections 28ID to 28IF inserted	32

28ID. Limitation on damages for loss of capacity to provide

m care for others 32

ia	28IE.	Calculation of damages for gratuitous care	33
rl	28IF.	Application of sections 28ID and 28IE	34
a	11.	Supreme Court—limitation of jurisdiction	35
12.	New sections 28LAB and 28LAC inserted	35

P	28LAB.	Transitional for tariffs for damages for non-economic
d	loss 35
n	28LAC.	Transitional for gratuitous care 36

a	13.	Definitions	36
14.	What is significant injury?	36
n	15.	How is the degree of impairment to be assessed?	37
o
ti	16.	Certificate of assessment	37
17.	New section 28LNA inserted	38
la	28LNA.	Certificate where injury not stabilised	38
is	18.	Agreement to waive assessment	39
19.	What if the respondent asks for more information?	39
g	20.	Repeal of section 28LS	39
e	21.	Information to be provided to respondent	40
L	22.	Limitation period suspended	40
n	23.	New section 28LW substituted and sections 28LWA to 28LWE
a
ri
inserted	41

28LW. Response to medical assessment 41

28LWA. What if the respondent asks for more information? 42

to	28LWB. What if the respondent disputes responsibility?	42
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Section Page

25.	Respondent to pay fees and costs of referral	45
26.	New section 28LXA inserted	45

28LXA. Administration 45

ts	27.	Procedure of Medical Panel	47
28.	Respondent to provide information to Medical Panel	48
n	29.	Request to claimant	49
e	30.	Request to registered health practitioner	49
m	31.	New section 28LZG substituted and section 28LZGA inserted	49
u	28LZG.	Determination of Panel	49

c	28LZGA. Further assessment	52
o	32.	Operation of Panel provisions of Accident Compensation
Act 1985 52
D	33.	Provision of assessment information to court 53
ry	34.	Regulations 53
35.	Transitional 53
ta

n	PART 3—AMENDMENTS TO WRONGS AND LIMITATION
e	OF ACTIONS ACTS (INSURANCE REFORM) ACT 2003 54

m	36.	Definition	54
ia	37.	Application of Part	54
rl	38.	Liability for contributory negligence	54

a	PART 4—AMENDMENTS TO VICTORIAN MANAGED
P	INSURANCE AUTHORITY ACT 1996 55

d	39.	Functions of Authority	55
n	40.	New section 25A inserted	55

a	25A.	Provision of insurance and indemnities for other
persons or bodies 55
n
o
ti	PART 5—AMENDMENTS TO BUILDING ACT 1993	57

la	41.	Definition of required insurance	57
42.	New section 137AA inserted	57

is	137AA.	Insurance for domestic building work to be provided
g	by designated insurers 57

e	═══════════════
L

ENDNOTES 60

n
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ts
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e
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c
o	Victoria
D
ry
ta
n	No. 102 of 2003
e
m
ia
rl	Wrongs and Other Acts (Law of
a	Negligence) Act 2003†
P

[Assented to 2 December 2003]

d
n
a
n
o

ti	The Parliament of Victoria enacts as follows:
la
is
g	PART 1—PRELIMINARY
e
L	1. Purposes
n	The main purposes of this Act are—
a

ri	(a)	to amend the Wrongs Act 1958 in relation
to	to—

ic	(i) negligence;
V	(ii) contributory negligence;

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s. 2

(iii) mental harm;

(iv) the liability of public authorities;

ts	(v) damages for injury or death;
n
e	(b) to amend the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003
m
u	in relation to proportionate liability;
c	(c) to amend the Victorian Managed
o	Insurance Authority Act 1996 to empower
D	the Authority to insure or indemnify other
ry	persons and bodies;

ta	(d)	to amend the Building Act 1993 in relation
n	to insurance for domestic building work.

e	2. Commencement
m
ia	(1) This Act (except sections 6 and 14(2) and Part 5)
rl	comes into operation on the day after the day on
a	which it receives the Royal Assent.
P	(2) Section 6 is deemed to have come into operation
d	on 1 October 2003.
n	(3) Section 14(2) is deemed to have come into
a	operation on 21 May 2003.
n
o	(4) Subject to sub-section (5), Part 5 comes into
ti	operation on a day to be proclaimed.
la	(5) If Part 5 does not come into operation before
is	1 January 2005, it comes into operation on that
g	day.
e
L	__________________
n
a
ri
to
ic
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s. 3

PART 2—AMENDMENTS TO WRONGS ACT 1958

ts 3. New Parts X, XI and XII inserted

n	After Part IX of the Wrongs Act 1958 insert—	See:
e	Act No. 6420.
m	'PART X—NEGLIGENCE	Reprint No. 8
u	as at
16 June 2003
c	and
o	Division 1—Preliminary	amending
D	Act No.
60/2003.

43. Definitions

ry	LawToday:

In this Part—

ta	dpc.vic.
gov.au
n	"court" includes tribunal, and, in relation to
e	a claim for damages, means any court or tribunal by or before which the claim
m
ia	falls to be determined;
rl	"damages" includes any form of monetary
a	compensation;
P	"harm" means harm of any kind and
d	includes—
n
a	(a) injury or death; and
n	(b) damage to property; and
o
ti	(c) economic loss;
la	"injury" means personal or bodily injury
is	and includes—
g	(a) pre-natal injury; and
e
L	(b) psychological or psychiatric
n	injury; and
a
ri	(c) disease; and
to	(d) aggravation, acceleration or

recurrence of an injury or disease;

ic	"negligence" means failure to exercise
V	reasonable care.

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44. Application of Part

This Part applies to any claim for damages

ts	resulting from negligence, regardless of
n	whether the claim is brought in tort, in
e	contract, under statute or otherwise.
m	45. Exclusions from Part
u
c	(1) This Part does not apply to the following
o	claims for damages—
D	(a) a claim to which Part 3, 6 or 10 of the
ry	Transport Accident Act 1986 applies;

ta	(b)	a claim to which Part IV of the
n	Accident Compensation Act 1985
e	applies;

m	(c) a claim in respect of an injury which
ia	entitles, or may entitle, a worker, or a
rl	dependant of a worker, within the
a	meaning of the Workers
P	Compensation Act 1958 to
d	compensation under that Act;
n	(d) a claim in respect of an injury which entitles, or may entitle, a person or a
a
n	dependant of a person to compensation
o
ti	under any of the following—
la	(i) Part V of the Country Fire
is	Authority Act 1958 or the
g	regulations made under that Act;
e	(ii) Part 3 of the Victoria State
L	Emergency Service Act 1987;
n
a	(iii) Part 6 of the Emergency
ri	Management Act 1986;
to	(iv) the Police Assistance
ic	Compensation Act 1968;
V

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(v) Part 8 of the Juries Act 2000 or Part VII of the Juries Act 1967;

ts	(vi)	Division 6 of Part II of the
n	Education Act 1958;

e	(e) subject to sub-section (2), a claim for
m	damages in respect of an injury that is a
u	dust-related condition within the
c	meaning of the Administration and
o	Probate Act 1958; or
D

(f) subject to sub-section (2), a claim for

ry	damages in respect of an injury
ta	resulting from smoking or other use of
n	tobacco products, within the meaning
e	of the Tobacco Act 1987, or exposure
m	to tobacco smoke.
ia	(2) A claim for damages referred to in sub-
rl	section (1)(e) or (1)(f) does not include a
a	claim for damages that relates to the
P	provision of or the failure to provide a health
d	service.
n
a	(3) This Part does not apply to claims in proceedings of a class that is excluded by the
n	regulations from the operation of this Part.
o
ti	46. Application to contract
la	(1) This Part does not prevent the parties to a
is	contract from making express provision for
g	their rights, obligations and liabilities under
e	the contract (the express provision) in
L	relation to any matter to which this Part
n	applies and does not limit or otherwise affect
a
ri	the operation of the express provision.
to	(2) Sub-section (1) extends to any provision of
ic	this Part even if the provision applies to
liability in contract.
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47.  Effect of this Part on the common law

Except as provided by this Part, this Part is

ts	not intended to affect the common law.
n
e	Division 2—Duty of Care
m	48. General principles
u
c	(1) A person is not negligent in failing to take
o	precautions against a risk of harm unless—
D

(a) the risk was foreseeable (that is, it is a

ry	risk of which the person knew or ought
ta	to have known); and
n	(b) the risk was not insignificant; and
e
(c) in the circumstances, a reasonable
m
ia	person in the person's position would
rl	have taken those precautions.
a	(2) In determining whether a reasonable person
P	would have taken precautions against a risk
d	of harm, the court is to consider the
n	following (amongst other relevant things)—
a	(a) the probability that the harm would
n	occur if care were not taken;
o
ti	(b) the likely seriousness of the harm;
la	(c) the burden of taking precautions to
is	avoid the risk of harm;
g	(d) the social utility of the activity that
e
L	creates the risk of harm.
n	(3) For the purposes of sub-section (1)(b)—
a

ri	(a)	insignificant risks include, but are not limited to, risks that are far-fetched or
to	fanciful; and
ic
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(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to,

ts	significant risks.
n
e	49. Other principles
m	In a proceeding relating to liability for
u	negligence—
c
o	(a) the burden of taking precautions to
D	avoid a risk of harm includes the burden of taking precautions to avoid
ry	similar risks of harm for which the
ta	person may be responsible; and
n	(b) the fact that a risk of harm could have
e	been avoided by doing something in a
m	different way does not of itself give rise
ia	to or affect liability for the way in
rl	which the thing was done; and
a
P	(c) the subsequent taking of action that would (had the action been taken
d
n	earlier) have avoided a risk of harm
a	does not of itself give rise to or affect liability in respect of the risk and does
n
o	not of itself constitute an admission of
ti	liability in connection with the risk.
la	50. Duty to warn of risk—reasonable care
is	A person (the defendant) who owes a duty
g	of care to another person (the plaintiff) to
e	give a warning or other information to the
L	plaintiff in respect of a risk or other matter,
n	satisfies that duty of care if the defendant
a
ri	takes reasonable care in giving that warning
to	or other information.
ic
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s. 3

Division 3—Causation

51. General principles

ts	(1) A determination that negligence caused
n
e	particular harm comprises the following elements—
m
u	(a) that the negligence was a necessary
c	condition of the occurrence of the harm
o	(factual causation); and
D

(b) that it is appropriate for the scope of the

ry	negligent person's liability to extend to
ta	the harm so caused (scope of liability).
n	(2) In determining in an appropriate case, in
e	accordance with established principles,
m	whether negligence that cannot be
ia	established as a necessary condition of the
rl	occurrence of harm should be taken to
a	establish factual causation, the court is to
P	consider (amongst other relevant things)
d	whether or not and why responsibility for the
n	harm should be imposed on the negligent
a	party.
n	(3) If it is relevant to the determination of
o
ti	factual causation to determine what the
la	person who suffered harm (the injured
person) would have done if the negligent
is	person had not been negligent, the matter is
g	to be determined subjectively in the light of
e
L	all relevant circumstances.

(4) For the purpose of determining the scope of

n

a	liability, the court is to consider (amongst
ri	other relevant things) whether or not and
to	why responsibility for the harm should be
ic	imposed on the negligent party.
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Part 2—Amendments to Wrongs Act 1958

s. 3

52.  Burden of proof

In determining liability for negligence, the

ts	plaintiff always bears the burden of proving,
n	on the balance of probabilities, any fact
e	relevant to the issue of causation.
m
u	Division 4—Awareness of Risk
c
o	53. Meaning of obvious risk
D	(1) For the purposes of section 54, an obvious
ry	risk to a person who suffers harm is a risk that, in the circumstances, would have been
ta	obvious to a reasonable person in the
n	position of that person.
e

(2) Obvious risks include risks that are patent or

m

a matter of common knowledge.

ia
rl

(3) A risk of something occurring can be an

a	obvious risk even though it has a low
P	probability of occurring.
d	(4) A risk can be an obvious risk even if the risk
n	(or a condition or circumstance that gives
a	rise to the risk) is not prominent,
n	conspicuous or physically observable.
o
ti	(5) To remove any doubt, it is declared that a
la	risk from a thing, including a living thing, is
is	not an obvious risk if the risk is created
g	because of a failure on the part of a person to
e	properly operate, maintain, replace, prepare
L	or care for the thing, unless the failure itself
n	is an obvious risk.
a
ri	54. Voluntary assumption of risk
to	(1) If, in a proceeding on a claim for damages

for negligence, a defence of voluntary

ic	assumption of risk (volenti non fit injuria) is
V	raised and the risk of harm is an obvious risk, the person who suffered harm is

Wrongs and Other Acts (Law of Negligence) Act 2003

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Part 2—Amendments to Wrongs Act 1958

s. 3

presumed to have been aware of the risk,
unless the person proves on the balance of

probabilities that the person was not aware of

ts	the risk.
n
e	(2) Sub-section (1) does not apply to—
m	(a) a proceeding on a claim for damages
u	relating to the provision of or the
c	failure to provide a professional service
o	or health service; or
D

(b) a proceeding on a claim for damages in

ry	respect of risks associated with work
ta	done by one person for another.
n	(3) Without limiting section 47, the common
e	law continues to apply, unaffected by sub-
m	section (1), to a proceeding referred to in
ia
rl	sub-section (2).
a	55. No liability for materialisation of inherent
P	risk
d	(1) A person is not liable in negligence for harm
n	suffered by another person as a result of the
a	materialisation of an inherent risk.
n	(2) An inherent risk is a risk of something
o
ti	occurring that cannot be avoided by the
la	exercise of reasonable care.
is	(3) This section does not operate to exclude
g	liability in connection with a duty to warn of
e	a risk.
L	56. Plaintiff to prove unawareness of risk
n
a	(1) In any proceeding where, for the purpose of
ri	establishing that a person (the defendant)
to	has breached a duty of care owed to a person
who suffered harm (the plaintiff), the
ic	plaintiff alleges that the defendant has—
V

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(a) failed to give a warning about a risk of harm to the plaintiff; or

ts	(b)	failed to give other information to the
n	plaintiff—

e	the plaintiff bears the burden of proving, on
m	the balance of probabilities, that the plaintiff
u	was not aware of the risk or information.
c
o	(2) Sub-section (1) does not apply to a
D	proceeding on a claim for damages in respect of risks associated with work done by one
ry	person for another.
ta	(3) Despite sub-section (2), sub-section (1)
n	applies to a proceeding referred to in sub-
e	section (2) if the proceeding relates to the
m	provision of or the failure to provide a health
ia
rl	service.
a	(4) Without limiting section 47, the common
P	law continues to apply, unaffected by sub- section (1), to a proceeding referred to in
d
n	sub-section (2) to which sub-section (1) does
a	not apply.
n	(5) Nothing in this section is intended to alter
o	any duty of care to give a warning of a risk
ti	of harm or other information.
la
is	Division 5—Negligence of professionals and
g	persons professing particular skills
e
L	57. Definition
n	In this Division "professional" means an
a
ri	individual practising a profession.
to
ic
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58.  Standard of care to be expected of persons holding out as possessing a particular skill

ts	In a case involving an allegation of
n	negligence against a person (the defendant)
e	who holds himself or herself out as
m	possessing a particular skill, the standard to
u	be applied by a court in determining whether
c	the defendant acted with due care is, subject
o	to this Division, to be determined by
D	reference to—

ry	(a)	what could reasonably be expected of a
ta	person possessing that skill; and

n	(b) the relevant circumstances as at the date
e	of the alleged negligence and not a later
m	date.
ia	59. Standard of care for professionals
rl
a	(1) A professional is not negligent in providing a
P	professional service if it is established that the professional acted in a manner that (at
d
n	the time the service was provided) was
a	widely accepted in Australia by a significant number of respected practitioners in the field
n
o	(peer professional opinion) as competent
ti	professional practice in the circumstances.
la	(2) However, peer professional opinion cannot
is	be relied on for the purposes of this section if
g	the court determines that the opinion is
e	unreasonable.
L	(3) The fact that there are differing peer
n	professional opinions widely accepted in
a
ri	Australia by a significant number of respected practitioners in the field
to	concerning a matter does not prevent any one
ic	or more (or all) of those opinions being
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s. 3

(4) Peer professional opinion does not have to be

universally accepted to be considered widely

ts	accepted.
n	(5) If, under this section, a court determines peer
e	professional opinion to be unreasonable, it
m	must specify in writing the reasons for that
u	determination.
c	(6) Sub-section (5) does not apply if a jury
o	determines the matter.
D

60. Duty to warn of risk

ry

ta	Section 59 does not apply to a liability
arising in connection with the giving of (or
n	the failure to give) a warning or other
e	information in respect of a risk or other
m	matter to a person if the giving of the
ia	warning or information is associated with the
rl	provision by a professional of a professional
a	service.
P
d	Division 6—Non-delegable duties and vicarious
n	liability
a
n	61. Liability based on non-delegable duty
o
ti	(1) The extent of liability in tort of a person (the

defendant) for breach of a non-delegable

la	duty to ensure that reasonable care is taken
is	by a person in the carrying out of any work
g	or task delegated or otherwise entrusted to
e	the person by the defendant is to be
L	determined as if the defendant were
n	vicariously liable for the negligence of the
a
ri	person in connection with the performance
of the work or task.
to	(2) This section applies to a claim for damages
ic	in tort whether or not it is a claim for
V	damages resulting from negligence, despite anything to the contrary in section 44.

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Division 7—Contributory Negligence

62. Standard of care for contributory

ts	negligence
n
e	(1) The principles that are applicable in determining whether a person has been
m
u	negligent also apply in determining whether
c	the person who suffered harm has been
o	contributorily negligent in failing to take
D	precautions against the risk of that harm.
ry	(2) For that purpose—

ta	(a)	the standard of care required of the
n	person who suffered harm is that of a
e	reasonable person in the position of that
m	person; and

ia	(b) the matter is to be determined on the
rl	basis of what that person knew or ought
a	to have known at the time.
P

63. Contributory negligence can defeat claim

d

n	In determining the extent of a reduction in
a	damages by reason of contributory
n	negligence, a court may determine a
o	reduction of 100% if the court thinks it just
ti	and equitable to do so, with the result that
la	the claim for damages is defeated.
is
g	Division 8—General
e
L	64. Regulations
n	The Governor in Council may make
a	regulations generally prescribing any matter
ri	or thing required or permitted by this Part to
to	be prescribed or necessary to be prescribed
ic	to give effect to this Part.
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65.  Supreme Court—limitation of jurisdiction

It is the intention of sections 48(2), 51(2),

ts	51(3), 51(4), 58, 59(5) and 62 to alter or vary
n	section 85 of the Constitution Act 1975.
e	66. Transitional
m	(1) This Part extends to negligence arising
u
c	before, on or after the commencement day.
o	(2) Section 61 extends to liability in tort arising
D	before, on or after the commencement day.
ry	(3) Despite sub-sections (1) and (2), this Part
ta	does not apply to proceedings commenced in
n	a court before the commencement day.
e	(4) In this section "commencement day"
m	means the day on which section 3 of the
ia	Wrongs and Other Acts (Law of
rl	Negligence) Act 2003 comes into operation.
a
P	__________________
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
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PART XI—MENTAL HARM

ts	67. Definitions
n
e	In this Part—
m	"consequential mental harm" means
u	mental harm that is a consequence of an
c	injury of any other kind;
o	"court" includes tribunal, and, in relation to
D	a claim for damages, means any court
ry	or tribunal by or before which the claim
ta	falls to be determined;
n	"damages" includes any form of monetary
e	compensation;
m
ia	"injury" means personal or bodily injury
rl	and includes—
a	(a) pre-natal injury; and
P	(b) psychological or psychiatric
d	injury; and
n
a	(c) disease; and
n	(d) aggravation, acceleration or
o
ti	recurrence of an injury or disease;
la	"mental harm" means psychological or

psychiatric injury;

is

g	"negligence" means failure to exercise
e	reasonable care;
L	"pure mental harm" means mental harm
n	other than consequential mental harm.
a
ri	68. Application of Part
to	This Part applies to any claim for damages
ic	resulting from negligence, regardless of
V	whether the claim is brought in tort, in contract, under statute or otherwise.

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69. Exclusions from Part

(1) This Part does not apply to the following

ts	claims for damages—
n	(a) a claim to which Part 3, 6 or 10 of the
e	Transport Accident Act 1986 applies;
m	(b) a claim to which Part IV of the
u
c	Accident Compensation Act 1985
o	applies;
D	(c) a claim in respect of an injury which
ry	entitles, or may entitle, a worker, or a
ta	dependant of a worker, within the
meaning of the Workers
n	Compensation Act 1958 to
e	compensation under that Act;
m
ia	(d) a claim in respect of an injury which
rl	entitles, or may entitle, a person or a
a	dependant of a person to compensation
P	under any of the following—
d	(i) Part V of the Country Fire
n	Authority Act 1958 or the
a	regulations made under that Act;
n	(ii) Part 3 of the Victoria State
o
ti	Emergency Service Act 1987;
la	(iii) Part 6 of the Emergency
is	Management Act 1986;
g	(iv) the Police Assistance
e	Compensation Act 1968;
L

(v) Part 8 of the Juries Act 2000 or

n

Part VII of the Juries Act 1967;

a
ri

(vi) Division 6 of Part II of the

to	Education Act 1958;
ic
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(e) subject to sub-section (2), a claim for damages in respect of an injury that is a dust-related condition within the

ts	meaning of the Administration and
n	Probate Act 1958; or
e

(f) subject to sub-section (2), a claim for

m

u	damages in respect of an injury
c	resulting from smoking or other use of
o	tobacco products, within the meaning
D	of the Tobacco Act 1987, or exposure
ry	to tobacco smoke.
ta	(2) A claim for damages referred to in sub-

section (1)(e) or (1)(f) does not include a

n

e	claim for damages that relates to the provision of or the failure to provide a health
m	service.
ia
rl	(3) This Part does not apply to claims in
a	proceedings of a class that is excluded by the
P	regulations from the operation of this Part.
d	70. Application to contract
n
a	(1) This Part does not prevent the parties to a contract from making express provision for
n
o	their rights, obligations and liabilities under
ti	the contract (the express provision) in
la	relation to any matter to which this Part
applies and does not limit or otherwise affect
is	the operation of the express provision.
g
e	(2) Sub-section (1) extends to any provision of
L	this Part even if the provision applies to
n	liability in contract.
a
ri	71. Effect of this Part on the common law
to	Except as provided by this Part, this Part is
ic	not intended to affect the common law.
V

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72. Mental harm—duty of care

(1) A person (the defendant) does not owe a

ts	duty to another person (the plaintiff) to take
n	care not to cause the plaintiff pure mental
e	harm unless the defendant foresaw or ought
m	to have foreseen that a person of normal
u	fortitude might, in the circumstances of the
c	case, suffer a recognised psychiatric illness if
o	reasonable care were not taken.
D	(2) For the purposes of the application of this
ry	section, the circumstances of the case include
ta	the following—
n	(a) whether or not the mental harm was
e	suffered as the result of a sudden shock;
m	(b) whether the plaintiff witnessed, at the
ia	scene, a person being killed, injured or
rl	put in danger;
a
P	(c) the nature of the relationship between the plaintiff and any person killed,
d
n	injured or put in danger;

a	(d)	whether or not there was a pre-existing
n	relationship between the plaintiff and
o
ti	the defendant.

la (3) This section does not affect the duty of care

of a person (the defendant) to another (the

is	plaintiff) if the defendant knows, or ought to
g	know, that the plaintiff is a person of less
e
L	than normal fortitude.
n	73. Limitation on recovery of damages for
a
ri

pure mental harm arising from shock

(1) This section applies to the liability of a

to	person (the defendant) for pure mental harm
ic	to a person (the plaintiff) arising wholly or
V	partly from mental or nervous shock in connection with another person (the victim)

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being killed, injured or put in danger by the

act or omission of the defendant.

ts	(2) The plaintiff is not entitled to recover
n	damages for pure mental harm unless—
e	(a) the plaintiff witnessed, at the scene, the
m	victim being killed, injured or put in
u	danger; or
c
o	(b) the plaintiff is or was in a close
D	relationship with the victim.
ry	(3) No damages are to be awarded to the
ta	of damages from the defendant by or through
plaintiff for pure mental harm if the recovery
n	the victim in respect of the act or omission
e	would be prevented by any provision of this
m	Act or any other written or unwritten law.
ia

rl	74.	Limitation on recovery of damages for
a	consequential mental harm

P	(1) A person (the plaintiff) is not entitled to
d	recover damages from another person (the
n	defendant) for consequential mental harm
a	unless—
n	(a) the defendant foresaw or ought to have
o
ti	foreseen that a person of normal
la	fortitude might, in the circumstances of
the case, suffer a recognised psychiatric
is	illness if reasonable care were not
g	taken; or
e

L	(b)	the defendant knew, or ought to have
n	known, that the plaintiff is a person of
a	less than normal fortitude and foresaw
ri	or ought to have foreseen that the
to	plaintiff might, in the circumstances of
ic	the case, suffer a recognised psychiatric illness if reasonable care were not
V	taken.

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(2) For the purposes of the application of this

section, the circumstances of the case include
the injury to the plaintiff out of which the

ts	mental harm arose.
n

e	75.	Liability for economic loss for mental
m	harm
u	A court cannot make an award of damages
c	for economic loss for mental harm resulting
o	from negligence unless the harm consists of
D	a recognised psychiatric illness.

ry	76. Regulations
ta	The Governor in Council may make
n	regulations generally prescribing any matter
e	or thing required or permitted by this Part to
m	be prescribed or necessary to be prescribed
ia
rl	to give effect to this Part.
a	77. Supreme Court—limitation of jurisdiction
P	It is the intention of sections 73, 74 and 75 to
d	alter or vary section 85 of the Constitution
n	Act 1975.
a

78. Transitional

n

o	(1) This Part extends to negligence arising
ti	before, on or after the commencement day.
la	(2) Despite sub-section (1), this Part does not
is	apply to proceedings commenced in a court
g	before the commencement day.
e
L	(3) In this section "commencement day"
n	means the day on which section 3 of the
a	Wrongs and Other Acts (Law of
ri	Negligence) Act 2003 comes into operation.
to	__________________
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PART XII—LIABILITY OF PUBLIC

AUTHORITIES

ts

n	79. Definitions
e	In this Part—
m
u	"damages" includes any form of monetary
c	compensation;
o	"exercise" in relation to a function includes
D	perform a duty;
ry	"function" includes a power, authority or
ta	duty;
n	"negligence" means failure to exercise
e	reasonable care;
m
ia
rl

"public authority" means—

(a) the Crown;

a	(b) an Agency within the meaning of the Public Sector Management
P
d	and Employment Act 1998;
n

a	(c)	a body, whether corporate or
n	unincorporate, that is established
o	by or under an Act for a public
ti	purpose;

la	(d) a Council within the meaning of
is	the Local Government Act 1989;
g
e	(e) a body established or appointed
L	for a public purpose by the
n	Governor in Council or by a
a	Minister, otherwise than under an
ri	Act;
to	(f) a person holding an office or
ic	position established by or under
V	an Act;

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(g) a person holding an office or position to which he or she was appointed by the Governor in

ts	Council or a Minister otherwise
n	than under an Act;
e

(h) any other person or body

m

u	prescribed (or of a class
c	prescribed) as an authority to
o	which this Part applies (in respect
D	of all or specified functions);

ry	(i)	any person or body in respect of
ta	the exercise of a public or other
function of a class prescribed for
n
e	the purpose of this Part.

m	80. Application of Part
ia	(1) This Part (except section 84) applies to any
rl	claim for damages resulting from negligence,
a	regardless of whether the claim is brought in
P	tort, in contract, under statute or otherwise.
d	(2) Sub-section (1) and section 84 do not apply
n
a	if the relevant enactment contains express provision to the contrary.
n
o	81. Exclusions from Part
ti
la	(1) This Part does not apply to the following
is	claims for damages—

(a) subject to sub-section (2), a claim for

g

e	damages in respect of an injury that is a
L	dust-related condition within the
n	meaning of the Administration and
a
ri
Probate Act 1958; or

(b) subject to sub-section (2), a claim for

to	damages in respect of an injury
ic	resulting from smoking or other use of
V	tobacco products, within the meaning

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of the Tobacco Act 1987, or exposure

to tobacco smoke.

ts	(2) A claim for damages referred to in sub-
n	section (1)(a) or (1)(b) does not include a
e	claim for damages that relates to the
m	provision of or the failure to provide a health
u	service.
c	(3) This Part does not apply to a public authority
o	or class of public authority—
D

(a) that is excluded by the regulations from

ry	the operation of this Part in respect of
ta	all of its functions; or
n	(b) in respect of specified functions or
e	functions of a specified class, if the
m	regulations exclude those functions or
ia	that class of functions from the
rl	operation of this Part in respect of that
a	public authority or class of public
P	authority.
d	82. Effect of this Part on the common law
n
a	Except as provided by sections 83, 84 and
n	85, this Part is not intended to affect the
o
ti	common law.
la	83. Principles concerning resources,
is	responsibilities etc. of public authorities
g	In determining whether a public authority
e	has a duty of care or has breached a duty of
L	care, a court is to consider the following
n	principles (amongst other relevant things)—
a
ri	(a) the functions required to be exercised

by the authority are limited by the

to	financial and other resources that are
ic	reasonably available to the authority for
V	the purpose of exercising those functions;

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(b) (c) the authority may rely on evidence of the functions required to be exercised reference to the broad range of its

ts	activities (and not merely by reference
n	to the matter to which the proceeding
e	relates);
m
u
c	its compliance with the general
o	procedures and applicable standards for
D	the exercise of its functions as evidence
ry	of the proper exercise of its functions in the matter to which the proceeding
ta	relates.
n	84. Wrongful exercise of or failure to exercise
e

function

m

ia	(1) This section applies to a proceeding for
rl	damages for an alleged breach of statutory
a	duty by a public authority in connection with
P	the exercise of or a failure to exercise a
d	function of the authority.
n	(2) For the purpose of the proceeding, an act or
a	omission of the public authority relating to a
n	function conferred on the public authority
o
ti	specifically in its capacity as a public
authority does not constitute a breach of
la	statutory duty unless the act or omission was
is	in the circumstances so unreasonable that no
g	public authority having the functions of the
e	authority in question could properly consider
L	the act or omission to be a reasonable
n	exercise of its functions.
a
ri	(3) For the purpose of the proceeding the public
to	authority is not liable for damages caused by
the wrongful exercise of or failure to
ic	exercise a function of the authority unless the
V	provisions and policy of the enactment in which the duty to exercise the function is

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created are compatible with the existence of

that liability.

ts	(4) Despite sub-section (1), sub-section (2) does
n	not apply to a statutory duty that is imposed
e	as an absolute duty on the public authority to
m	do or not to do a particular thing.
u	85. Exercise of function or decision to exercise
c	does not create duty
o
D	In a proceeding, the fact that a public authority exercises or decides to exercise a
ry	function does not of itself indicate that the
ta	authority is under a duty to exercise the
n	function or that the function should be
e	exercised in particular circumstances or in a
m	particular way.
ia	86. Supreme Court—limitation of jurisdiction
rl
a	It is the intention of section 83 to alter or
P	vary section 85 of the Constitution Act 1975.
d
n	87. Transitional
a
(1) This Part extends to negligence arising
n	before, on or after the commencement day.
o
ti	(2) Section 84 extends to an act or omission
la	occurring before, on or after the
is	commencement day.
g	(3) Despite sub-sections (1) and (2), this Part
e	does not apply to proceedings commenced in
L	a court before the commencement day.
n
a	(4) In this section "commencement day"
ri	means the day on which section 3 of the
to	Wrongs and Other Acts (Law of
Negligence) Act 2003 comes into
ic	operation.'.
V

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4. New sections 19A to 19C inserted

After section 19 of the Wrongs Act 1958

ts	insert—
n	"19A. Limitation on damages for loss of
e	gratuitous care
m	In an action under this Part, no damages may
u
c	be awarded for a loss of gratuitous care
o	provided or to be provided by the deceased
D	to his or her dependants unless the court is
ry	satisfied that—
ta	(a) the care—
n	(i) was provided to the dependants;
e	and
m	(ii) was being provided for at least
ia	6 hours per week; and
rl	(iii) had been provided for at least
a
P	6 consecutive months before the death, or the injury that caused the
d	death, to which the damages
n
a	relate; or
n	(b) there is a reasonable expectation that,
o	but for the death, or the injury that
ti	caused the death, of the deceased, the
la	gratuitous care would have been
is	provided to the dependants—
g	(i) for at least 6 hours per week; and
e
L	(ii) for a period of at least
n	6 consecutive months.
a
ri
to
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19B. Calculation of damages for gratuitous

care

ts	(1) If, in an action under this Part, the court is
n	satisfied that the deceased would (if death, or
e	the injury that caused the death, had not
m	ensued) have provided gratuitous care to his
u	or her dependants for not less than 40 hours
c	per week, the amount of damages that may
o	be awarded for the loss of that care must not
D	exceed—

ry	(a)	the amount per week comprising the
ta	amount estimated by the Australian
Statistician as the average weekly total
n
e	earnings of all employees in Victoria for—
m

ia	(i) in respect of the whole or any part
rl	of a quarter occurring between the
a	date of the death in relation to
P	which the award is made and the
d	date of the award, being a quarter
n	for which such an amount has
a	been estimated by the Australian
n	Statistician and is, at the date of
o	the award, available to the court
ti	making the award—that quarter;
la	or
is	(ii) in respect of the whole or any part
g	of any other quarter—the most
e	recent quarter occurring before the
L	date of the award for which such
n	an amount has been estimated by
a
ri	the Australian Statistician and is,
at that date, available to the court
to	making the award; or
ic	(b) if the Australian Statistician fails or
V	ceases to estimate the amount referred to in paragraph (a), the prescribed

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amount or the amount determined in such manner or by reference to such

ts	matters, or both, as may be prescribed.
n	(2) If, in an action under this Part, the court is
e	satisfied that the deceased would have
m	provided gratuitous care to his or her
u	dependants for less than 40 hours per week,
c	the amount of damages that may be awarded
o	for the loss of that care must not exceed the
D	amount calculated at an hourly rate of one-
ry	fortieth of the amount determined in
accordance with sub-section (1)(a) or (b), as
ta	the case requires.
n	19C. Application of sections 19A and 19B
e
m	(1) Except as provided by sections 19A and
ia	19B, nothing in those sections affects any
rl	other law relating to damages arising from
a	loss of gratuitous care.
P	(2) Sections 19A and 19B do not apply to the
d	following actions for damages—
n
a	(a) subject to sub-section (3), an action for damages in respect of an injury that is a
n
o	dust-related condition within the
ti	meaning of the Administration and
la	Probate Act 1958; or

is	(b)	subject to sub-section (3), an action for
g	damages in respect of an injury
e	resulting from smoking or other use of
L	tobacco products, within the meaning
n	of the Tobacco Act 1987, or exposure
a
ri	to tobacco smoke.

(3) An action for damages referred to in sub-

to	section (2)(a) or (2)(b) does not include an
ic	action for damages that relates to the
V	provision of or the failure to provide a health service.".

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5. New sections 23AA, 23AB and 23AC inserted

After section 23 of the Wrongs Act 1958

ts	insert—
n	"23AA. Regulations
e

(1) The Governor in Council may make

m

u	regulations generally prescribing any matter
c	or thing required or permitted by this Part to
o	be prescribed or necessary to be prescribed
D	to give effect to this Part.
ry	(2) The regulations—

ta	(a)	may leave any matter to be determined
n	by the Minister; and

e	(b) may apply, adopt or incorporate,
m	wholly or partially or as amended by
ia	the regulations, any matter contained in
rl	any document as existing or in force—
a	(i) from time to time; or
P
d	(ii) at a particular time.
n	23AB. Supreme Court—limitation of jurisdiction
a

It is the intention of sections 19A and 19B to

n

o	alter or vary section 85 of the Constitution
ti	Act 1975.
la	23AC. Transitional for gratuitous care
is	(1) Sections 19A and 19B extend to an award of
g
e	damages that relates to a death occurring
L	before, on or after the commencement of section 4 of the Wrongs and Other Acts
n
a	(Law of Negligence) Act 2003.
ri
to
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(2) Despite sub-section (1), sections 19A and

19B do not apply to an award of damages in
proceedings commenced in a court before

ts	the commencement of section 4 of the
n	Wrongs and Other Acts (Law of
e	Negligence) Act 2003.".
m
u	6. Contribution—transitional
c	After section 24(4) of the Wrongs Act 1958
o	insert—
D
"(5) For the removal of doubt, if an action (the
ry	existing action) was commenced in a court
ta	against the first-mentioned person referred to
n	in sub-section (4) before 1 October 2003, the
e	period referred to in sub-section (4)(a)(i) is
m	to be taken to be the period within which the
ia	existing action might have been brought at
rl	the time the existing action was brought.".
a	7. Contributory negligence
P

(1) In section 26(1)(a) of the Wrongs Act 1958

d

n	before "a claim" insert "except as provided in
a	section 63,".
n	(2) At the end of section 26 of the Wrongs Act 1958
o
ti	insert—
"Note: Division 7 of Part X also contains provisions relating
la	to contributory negligence.".
is	8. Definition
g
e	In section 28B of the Wrongs Act 1958 insert the
L	following definition—
n	' "dependants" in relation to a claimant, means
a
ri	any persons who are wholly, mainly or in part dependent on the claimant at the time of
to	the injury;'.
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9. New section 28HA inserted

After section 28H of the Wrongs Act 1958

ts	insert—
n	"28HA. Tariffs for damages for non-economic loss
e

(1) In determining damages for non-economic

m

u	loss, a court may refer to earlier decisions of
c	that or other courts for the purpose of
o	establishing the appropriate award in the
D	proceedings.
ry	(2) For that purpose, the parties to the
ta	proceedings or their counsel may bring the
court's attention to awards for damages for
n	non-economic loss in those earlier
e	proceedings.
m
ia	(3) This section does not alter the rules for the
rl	determination of other damages.".
a	10. New sections 28ID to 28IF inserted
P

After section 28IC of the Wrongs Act 1958

d	insert—
n
a	"28ID. Limitation on damages for loss of capacity
n	to provide care for others
o
ti	No damages may be awarded to a claimant
for any loss of the claimant's capacity to
la	provide gratuitous care for others unless the
is	court is satisfied that—
g
e	(a) the care—
L	(i) was provided to the claimant's
n	dependants; and
a

ri	(ii)	was being provided for at least
to	6 hours per week; and
ic
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s. 10

(iii)

had been provided for at least injury to which the damages

ts	relate; or
n
e	(b) there is a reasonable expectation that,
m	but for the injury to which the damages
u	relate, the gratuitous care would have
c	been provided to the claimant's
o	dependants—
D	(i) for at least 6 hours per week; and
ry	(ii) for a period of at least
ta	6 consecutive months.
n	28IE. Calculation of damages for gratuitous
e	care
m
ia	(1) If the court is satisfied that a claimant would
rl	have provided gratuitous care to his or her
a	dependants for not less than 40 hours per
P	week, the amount of damages that may be awarded to the claimant for any loss of the
d
n	claimant's capacity to provide that care must
a	not exceed—
n	(a) the amount per week comprising the
o	amount estimated by the Australian
ti	Statistician as the average weekly total
la	earnings of all employees in Victoria
is	for—
g	(i) in respect of the whole or any part
e	of a quarter occurring between the
L	date of the injury in relation to
n	which the award is made and the
a
ri	date of the award, being a quarter for which such an amount has
to	been estimated by the Australian
ic	Statistician and is, at the date of
V	the award, available to the court

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making the award—that quarter;

or

ts	(ii)	in respect of the whole or any part
n	of any other quarter—the most
e	recent quarter occurring before the
m	date of the award for which such
u	an amount has been estimated by
c	the Australian Statistician and is,
o	at that date, available to the court
D	making the award; or
ry	(b)	if the Australian Statistician fails or
ta	ceases to estimate the amount referred
to in paragraph (a), the prescribed
n
e	amount or the amount determined in such manner or by reference to such
m	matters, or both, as may be prescribed.
ia

rl	(2) If the court is satisfied that a claimant would
a	have provided gratuitous care to his or her
P	dependants for less than 40 hours per week,
d	the amount of damages that may be awarded
n	to a claimant for the loss of the claimant's
a	capacity to provide that care must not exceed
n	the amount calculated at an hourly rate of
o	one-fortieth of the amount determined in
ti	accordance with sub-section (1)(a) or (b), as
la	the case requires.
is	28IF. Application of sections 28ID and 28IE
g	(1) Except as provided by sections 28ID and
e
L	28IE, nothing in those sections affects any other law relating to damages arising from a
n	loss of capacity to provide gratuitous care.
a
ri	(2) Sections 28ID and 28IE do not apply to the
to	following actions for damages—
ic	(a) subject to sub-section (3), an action for
V	damages in respect of an injury that is a dust-related condition within the

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Part 2—Amendments to Wrongs Act 1958

s. 11

meaning of the Administration and

Probate Act 1958; or

ts	(b)	subject to sub-section (3), an action for
n	damages in respect of an injury
e	resulting from smoking or other use of
m	tobacco products, within the meaning
u	of the Tobacco Act 1987, or exposure
c	to tobacco smoke.

o	(3) An action for damages referred to in sub-
D	section (2)(a) or (2)(b) does not include an
ry	action for damages that relates to the
ta	provision of or the failure to provide a health
service.".
n
e	11. Supreme Court—limitation of jurisdiction
m	After section 28J(2) of the Wrongs Act 1958
ia
rl	insert—
a	"(3) It is the intention of section 28D (as affected
P	by the amendments made to this Part by section 10 of the Wrongs and Other Acts
d
n	(Law of Negligence) Act 2003) to alter or
a	vary section 85 of the Constitution Act 1975.".
n
o	12. New sections 28LAB and 28LAC inserted
ti
la	After section 28LA of the Wrongs Act 1958
is	insert—

"28LAB. Transitional for tariffs for damages for

g

e	non-economic loss
L	Despite section 28L(1), section 28HA does
n	not apply to an award of damages in
a
ri	proceedings commenced in a court before
the commencement of section 9 of the
to	Wrongs and Other Acts (Law of
ic	Negligence) Act 2003.
V

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Part 2—Amendments to Wrongs Act 1958

s. 13

28LAC. Transitional for gratuitous care

Despite section 28L(1), sections 28ID and

ts	28IE do not apply to an award of damages in
n	proceedings commenced in a court before
e	the commencement of section 10 of the
m	Wrongs and Other Acts (Law of
u	Negligence) Act 2003.".
c	13. Definitions
o
D	(1) In section 28LB of the Wrongs Act 1958 in the definition of "certificate of assessment" after
ry	"section 28LN" insert "or 28LNA".
ta	(2) In section 28LB of the Wrongs Act 1958 insert
n
e	the following definition—
m	' "impairment" means permanent impairment;'.
ia	(3) In section 28LB of the Wrongs Act 1958 for the
rl	definition of "medical question" substitute—
a
P	' "medical question" in relation to a claim for damages, means a question as to whether the
d	degree of impairment resulting from injury
n
a	to the claimant alleged in the claim satisfies the threshold level;'.
n
o
ti

14. What is significant injury?

(1) After section 28LF(1)(a) of the Wrongs Act 1958

la	insert—
is	"(aa) a certificate of assessment has been issued
g
e	under section 28LNA in respect of the
L	injury, unless a Medical Panel has made a
n	determination as to the threshold level under
a	Division 5; or".
ri
to
ic
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Part 2—Amendments to Wrongs Act 1958

s. 15

(2) After section 28LF(1)(c) of the Wrongs Act 1958

insert—

ts	"(ca) the injury is psychological or psychiatric
n	injury arising from the loss of a child due to
e	an injury to the mother or the foetus or the
m	child before, during or immediately after the
u	birth; or".
c	(3) After section 28LF(2)(a) of the Wrongs Act 1958
o	insert—
D
"(aa) a certificate of assessment has been issued
ry	under section 28LNA in respect of the
ta	injury, unless a Medical Panel has made a
n	determination as to the threshold level under
e	Division 5; or".
m	(4) After section 28LF(3)(a) of the Wrongs Act 1958
ia
rl	insert—
a	"(aa) the injury is deemed under section
P	28LZG(10) or 28LZGA(4) to be significant injury; or".
d
n	15. How is the degree of impairment to be assessed?
a

(1) In section 28LH of the Wrongs Act 1958 before

n	"impairment" insert "degree of".
o
ti	(2) At the end of section 28LH of the Wrongs Act
la	1958 insert—
is	"(2) Nothing in sub-section (1) prevents an
g	assessment being made in respect of a degree
e	of impairment of a person even if not all of
L	the injuries to the person have stabilised.".
n
a
ri

16. Certificate of assessment

(1) In section 28LN(1) of the Wrongs Act 1958 for

to	"An approved" substitute "Subject to section
ic	28LNA and this section, an approved".
V

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Part 2—Amendments to Wrongs Act 1958

s. 17

(2) After section 28LN(2) of the Wrongs Act 1958

insert—

ts	"(3) If not all the injuries to a person have
n	stabilised, a certificate of assessment can
e	only be provided under this section in respect
m	of the person if the injuries that have
u	stabilised are sufficient to determine a degree
c	of impairment that satisfies the threshold
o	level.".
D	17. New section 28LNA inserted
ry	After section 28LN of the Wrongs Act 1958
ta	insert—
n	"28LNA. Certificate where injury not stabilised
e

(1) This section applies if, after making an

m

ia	assessment of degree of impairment under
rl	this Part, an approved medical practitioner is
a	unable to determine the degree of
P	impairment because the injury has not stabilised.
d
n	(2) If, at the end of 6 months after that first
a	assessment, an approved medical practitioner
n	is unable to determine the degree of
o	impairment but is satisfied that the degree of
ti	impairment resulting from the injury will
la	satisfy the threshold level once the injury has
is	stabilised, that approved medical practitioner
g	may issue a certificate of assessment under
e	this section.
L	(3) The certificate of assessment must state that
n	the approved medical practitioner is unable
a
ri	to determine the degree of impairment but is satisfied that the degree of impairment
to	resulting from the injury will satisfy the
ic	threshold level once the injury has
V	stabilised.".

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 18

18. Agreement to waive assessment

(1) After section 28LO(1) of the Wrongs Act 1958

ts	insert—
n	"(1A) A request under sub-section (1) must be in
e	the prescribed form (if any) and include the
m	prescribed information (if any).".
u
c	(2) In section 28LO(2) and 28LO(4) of the Wrongs
o	Act 1958 for "30 days" substitute "60 days".
D	(3) In section 28LO(3)(c) of the Wrongs Act 1958
ry	for "contained in the notice of claim" substitute
ta	"contained in the request".
n	(4) After section 28LO(4) of the Wrongs Act 1958
e	insert—
m	"(5) Information prescribed for the purposes of
ia	sub-section (1A) may include information
rl	relating to—
a	(a) the identity of the claimant;
P
d	(b) the nature of the claim;
n	(c) the injury;
a
(d) the incident out of which the alleged
n
o
ti

injury arose;

(e) any medical practitioner who has

la	treated the injury.".
is	19. What if the respondent asks for more information?
g
e	In sections 28LP(2) and 28LP(3) of the Wrongs
L	Act 1958 for "30 days" substitute "60 days".
n	20. Repeal of section 28LS
a
ri	Section 28LS of the Wrongs Act 1958 is
to	repealed.
ic
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Part 2—Amendments to Wrongs Act 1958

s. 21

21. Information to be provided to respondent

At the end of section 28LT of the Wrongs Act

ts	1958 insert—
n	"(2) The copy of the certificate of assessment
e	must be accompanied by the prescribed
m	information (if any) in the prescribed form
u	(if any) unless the information has already
c	been provided to the respondent under
o	section 28LO.
D

(3) The information prescribed for the purposes

ry	of sub-section (2) may include information
ta	relating to—
n	(a) the identity of the claimant;
e
(b) the nature of the claim;
m
ia	(c) the injury;
rl	(d) the incident out of which the alleged
a
P	injury arose;
d	(e) any medical practitioner who has
n	treated the injury.".
a	22. Limitation period suspended
n
o
ti

In section 28LV of the Wrongs Act 1958—

(a) in paragraph (a) after "section 28LW" insert

la	", 28LWA or 28LWB";
is	(b) in paragraph (b) for "or 28LZA" substitute
g
e	", 28LWA, 28LWB, 28LZA or 28LZGA";

L	(c)	in paragraphs (c) and (d) for "opinion"
n	(wherever occurring) substitute
a
ri	"determination".
to
ic
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Part 2—Amendments to Wrongs Act 1958

s. 23

23.  New section 28LW substituted and sections 28LWA to 28LWE inserted

ts	For section 28LW of the Wrongs Act 1958
n	substitute—
e	"28LW. Response to medical assessment
m	(1) The respondent on whom a copy of a
u
c	certificate of assessment is served must
o	respond in writing to the claimant within
D	60 days after receiving the certificate and the
ry	required information under section 28LT.
ta	(2) The response to the claimant must—
n	(a) state that the respondent is a proper
e	respondent to the claim and state that
m	the respondent accepts the assessment
ia
rl
for the purposes of this Part; or

(b) state that the respondent is a proper

a	respondent to the claim and advise the
P	claimant that the respondent intends to
d	refer or has referred a medical question
n	in relation to the assessment to a
a	Medical Panel for determination under
n	this Part; or
o

ti	(c)	if the respondent is unable to decide, on
la	the information provided with the
certificate of assessment, whether the
is	respondent is a proper respondent to the
g	claim, advise the claimant of the further
e	information the respondent reasonably
L	needs to decide whether the respondent
n	is a proper respondent to the claim; or
a

ri	(d) state that the respondent believes that
to	the respondent is not a proper
ic	respondent to the claim, give the
reasons for the belief and give any
V	information that may help the claimant to identify the proper respondent.

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 23

(3) The respondent must state that the

respondent is a proper respondent to a claim
if the respondent has already stated under

ts	section 28LO or 28LP that the respondent is
n	a proper respondent to the claim.
e

(4) If the respondent fails to respond in writing

m

u	under this section within the 60 days, the
c	respondent is deemed to have accepted the
o	assessment.
D	28LWA. What if the respondent asks for more
ry	information?
ta	(1) If, under section 28LW(2)(c), a respondent
n	advises a claimant that specified further
e	information is needed, the claimant must
m	give the respondent the information the
ia	respondent reasonably needs to decide
rl	whether the respondent is a proper
a	respondent to the claim.
P	(2) The respondent must respond in the manner
d	set out in section 28LW(2)(a), (b) or (d)
n	within 60 days after receiving the
a	information.
n	(3) If the respondent fails to respond in writing
o
ti	under this section within the 60 days, the
la	respondent is deemed to have accepted the
is	assessment.
g	28LWB. What if the respondent disputes
e	responsibility?
L	(1) If a respondent responds in accordance with
n	section 28LW(2)(d), the claimant must give
a
ri	written notice to the respondent, within 14 days after receiving the response, that
to	either—
ic
V

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Part 2—Amendments to Wrongs Act 1958

s. 23

(a) on the information available to the claimant, the claimant accepts that the respondent is not a proper respondent to

ts	the claim; or
n
e	(b) the claimant considers that the
m	respondent is a proper respondent to the
u	claim and requires the respondent to
c	respond to the notice.
o	(2) The respondent must respond in writing to a
D	notice under sub-section (1)(b) within
ry	14 days after receiving the notice.
ta	(3) The response under this section must—
n	(a) state that the respondent is a proper
e	respondent to the claim and state that
m	the respondent accepts the assessment
ia
rl	for the purposes of this Part; or
a	(b) state that the respondent is a proper
P	respondent to the claim and advise the claimant that the respondent has
d
n	referred or intends to refer a medical
a	question in relation to the assessment to a Medical Panel for determination
n	under this Part.
o
ti	(4) If the respondent fails to respond within the
la	14 days, the respondent is deemed to have
is	accepted the assessment.
g	28LWC. Can a respondent bind any other
e
L	respondent?
n	An acceptance under this Division by a
a	respondent to a claim of an assessment does
ri	not bind any other respondent.
to
ic
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Part 2—Amendments to Wrongs Act 1958

s. 23

28LWD. Statement not admission of liability

A statement under this Division that a

ts	respondent is a proper respondent to a claim
n	is not an admission of liability in respect of
e	the claim.
m	28LWE. Referral of medical question to Medical
u	Panel
c
o	(1) The respondent on whom a copy of the
D	certificate of assessment is served may refer a medical question in relation to the
ry	assessment to a Medical Panel for
ta	determination under this Part—
n	(a) within 60 days after receiving the
e	certificate and the required information
m	under section 28LT; or
ia

rl	(b)	within 60 days after receiving the
a	information provided under section
P	28LWA; or

d	(c) within 14 days after receiving the
n	notice under section 28LWB.
a

(2) The respondent may not refer a medical

n	question in relation to the assessment to a
o
ti	Medical Panel if the respondent has accepted
la	the assessment or is deemed to have accepted
is	the assessment under this Division.

(3) If the respondent advises the claimant under

g

e	section 28LW, 28LWA or 28LWB that the
L	respondent intends to refer a medical
n	question in relation to the assessment to a
a	Medical Panel and does not refer the
ri	question within the required time under this
to	section, the respondent is deemed to have
ic	accepted the assessment under this Division
at the expiration of that required time.".
V

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Part 2—Amendments to Wrongs Act 1958

s. 24

24. References to opinion

In sections 28LX, 28LZF(a) and 28LZM(3) of the

ts	Wrongs Act 1958 for "opinion" (wherever
n	occurring) substitute "determination".
e	25. Respondent to pay fees and costs of referral
m
u	In section 28LX of the Wrongs Act 1958 for
c	"costs of" (where first occurring) substitute "fees
o	and costs payable in accordance with section
D	28LXA for".
ry	26. New section 28LXA inserted
ta	After section 28LX of the Wrongs Act 1958
n	insert—
e	"28LXA. Administration
m
ia	(1) The Minister, on the recommendation of the
rl	Convenor, may, by notice published in the
a	Government Gazette, fix scales of fees and
P	costs for referrals of medical questions under this Part.
d
n	(2) All fees and costs payable by the respondent
a	in respect of a referral to a Medical Panel
n	under section 28LX must be paid to the
o
ti
Convenor.

(3) The Convenor may recover any fees or costs

la	payable under section 28LX in any court of
is	competent jurisdiction as a debt due to the
g	Crown.
e
L	(4) The Convenor may establish a bank account
n	or bank accounts for the purposes of this
a
ri
Part.

(5) The Convenor must pay any amount paid to

to	the Convenor under this section into the bank
ic	account or accounts established under sub-
V	section (4).

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 26

(6) The Convenor may pay out of a bank account established under sub-section (4)

ts	any amount necessary—
n	(a) to reimburse the Victorian WorkCover
e	Authority for the remuneration
m	(including allowances) of members of
u	Medical Panels to the extent that is
c	applicable to their functions under this
o	Part;
D	(b) to pay the Victorian WorkCover
ry	Authority or any other person for the
ta	provision of administrative services
under this Part;
n

e	(c)	to pay any other costs (including
m	administrative costs) relating to a
ia	referral of a medical question for
rl	determination under this Part.

a	(7) The Convenor may engage any person to
P	assist the Convenor in carrying out any
d	function under this Part.
n
a	(8) The Convenor may enter into arrangements with the Victorian WorkCover Authority or
n
o	with any other person or body for the
ti	provision of administrative services to the
la	Convenor for the purposes of this Part.
is	(9) The Minister must cause a notice under sub-
g	section (1) to be laid before each House of
e	Parliament within 5 sitting days of that
L	House after it is published in the
n	Government Gazette.
a
ri	(10) Sections 23, 24 and 25 of the Subordinate Legislation Act 1994 apply to a notice under
to	sub-section (1) as if it were a statutory rule
ic	within the meaning of that Act.
V

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Part 2—Amendments to Wrongs Act 1958

s. 27

(11) A notice under sub-section (1) may be

disallowed in whole or in part by resolution of either House of Parliament in accordance

ts	with the requirements of section 23 of the
n	Subordinate Legislation Act 1994.".
e

27. Procedure of Medical Panel

m

u	For sections 28LZ(3) and 28LZ(4) of the Wrongs
c	Act 1958 substitute—
o
D	"(3) The Minister, after consultation with the Minister administering Part III of the
ry	Accident Compensation Act 1985, may for
ta	the purposes of—
n	(a) ensuring procedural fairness in the
e	procedures of Medical Panels under
m	this Part; and
ia

rl	(b)	facilitating the proper administration of
a	the Medical Panels under this Part—

P	issue guidelines as to the procedures of
d	Medical Panels under this Part.
n	(4) The Convenor may give directions as to the procedures of Medical Panels under this Part
a
n	but must not give directions inconsistent
o
ti	with any guidelines issued by the Minister
la	under this Part.
is	(5) A Medical Panel must comply with—
g	(a) any relevant guidelines as to the
e	procedures of Medical Panels issued
L	under sub-section (3); and
n
a	(b) any directions given by the Convenor
ri	under sub-section (4).".
to
ic
V

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 28

28. Respondent to provide information to Medical Panel

(1) In section 28LZA(1)(a) of the Wrongs Act 1958

ts	after "in writing" insert "and in the prescribed
n	form (if any)".
e	(2) For section 28LZA(2) of the Wrongs Act 1958
m	substitute—
u
c	"(2) The Convenor may, in writing, request the
o	respondent to provide to the Medical Panel
D	any specified document or documents of a specified class in the respondent's
ry	possession.
ta	(2A) More than one request may be made under
n
e	sub-section (2).

(2B) The respondent must comply with any

m

request under sub-section (2).".

ia
rl

(3) In section 28LZA(3) of the Wrongs Act 1958 for

a	"required documents under this section"
P	substitute "documents required under sub-section
d	(1) or requested under sub-section (2)".
n	(4) For section 28LZA(4) of the Wrongs Act 1958 substitute—
a
n
o	"(4) A respondent is deemed to have accepted the
ti	assessment in the certificate of assessment if
la	the respondent—
is	(a) fails to provide the Medical Panel with
g	the information and documents required
e	under sub-section (1) within 30 days
L	after being requested in writing to do so
n	by the Convenor; or
a

ri	(b)	fails to provide any documents
to	requested under sub-section (2) within
ic	30 days after that request.".
V

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Part 2—Amendments to Wrongs Act 1958

s. 29

29. Request to claimant

At the end of section 28LZC of the Wrongs Act

ts	1958 insert—
n	"(2) A request under this section must be made
e	within 30 days after the medical question is
m	referred to the Medical Panel.".
u
c	30. Request to registered health practitioner
o	At the end of section 28LZE of the Wrongs Act
D	1958 insert—
ry	"(2) A request under this section must be made
ta	within 30 days after the last of the following
n	to occur—
e	(a) the date on which the medical question
m	is referred to the Medical Panel;
ia

rl	(b)	the date on which the claimant meets
a	with the Medical Panel under section
P	28LZC;

d	(c) the date on which the claimant is given
n	a medical examination by the Medical
a	Panel or a member of the Panel under
n	section 28LZC;
o
ti	(d) the last date on which the Medical

Panel receives any documents

la	requested under section 28LZC(1)(b).".
is	31. New section 28LZG substituted and section
g
e	28LZGA inserted
L	For section 28LZG of the Wrongs Act 1958
n	substitute—
a
ri	"28LZG. Determination of Panel
to	(1) A Medical Panel must not determine the
ic	has made an assessment of the degree of
degree of impairment of a person unless it
V	impairment in accordance with Division 3.

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 31

(2) After making the assessment, the Medical Panel must give the claimant and the

ts	respondent—
n	(a) its determination of the medical
e	question in accordance with sub-
m	section (4); or
u	(b) its certificate, in accordance with sub-
c	section (5), that it is unable to
o	determine the medical question but that
D	it is satisfied that the degree of
ry	impairment will satisfy the threshold
ta	level when the injury has stabilised; or
n	(c) its certificate that it is unable to
e	determine the medical question and a
m	statement of the time fixed for further
ia	assessment of the person under sub-
rl	section (6).
a	(3) The Medical Panel must give the
P	determination or certificate—
d	(a) within 30 days after the last of the
n
a	following to occur—
n	(i) the last date on which the claimant
o	complies with a request under
ti	section 28LZC;
la	(ii) the last date on which a registered
is	health practitioner complies with a
g	request under section 28LZE or if
e	a request is made to more than one
L	registered health practitioner, the
n	last date on which the last of the
a
ri	registered health practitioners to comply, complies with the
to	request; or
ic	(b) within such longer period as is agreed
V	by the claimant and the respondent. Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 31

(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question

ts	must state whether the degree of impairment
n	resulting from the injury satisfies the
e	threshold level but must not state the specific
m	degree of impairment.
u
c	(5) If, after making an assessment, the Medical
o	Panel is unable to determine the medical
D	question because an injury has not stabilised,
ry	but the Medical Panel is satisfied that the
degree of impairment resulting from injury
ta	will satisfy the threshold level once the
n	injury has stabilised, the Medical Panel may
e	certify in writing to that effect.
m	(6) If, after making an assessment, the Medical
ia
rl	Panel is unable to determine the medical
question because an injury has not stabilised
a	and sub-section (5) does not apply, the
P	Medical Panel must in writing—
d	(a) certify that it is unable to determine the
n
a	medical question; and
n	(b) fix a time (not being later than
o
ti	12 months after the first assessment) for
a further assessment of the degree of
la	impairment of the person to be made
is	under this section.
g	(7) The time fixed under sub-section (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
e
L
n
a	(8) More than one further assessment may be
ri	made under this section but each further
to	assessment must be made within the period
ic	of 12 months following the first assessment.
V

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 32

(9) A determination of the Medical Panel under

sub-section (4) must be given in writing and

ts	be certified by the Medical Panel.
n	(10) If the Medical Panel gives a certificate under
e	sub-section (5) in relation to an injury, the
m	injury is deemed to be significant injury.
u	28LZGA. Further assessment
c
o	(1) If a Medical Panel fixes a time for further
D	assessment under section 28LZG, the respondent may by notice in writing to the
ry	Medical Panel and the claimant waive the
ta	requirement for a further assessment.
n	(2) The notice must be given within 14 days
e	after the respondent receives the statement of
m	the Medical Panel.
ia
rl	(3) If the respondent waives the requirement for
a	a further assessment under section 28LZG,
P	the respondent is deemed to have accepted, for the purposes of this Part, the assessment
d
n	in the certificate of assessment served under
a	section 28LT.
n	(4) If a Medical Panel fixes a time for further
o	assessment under section 28LZG, and at the
ti	end of 12 months after the first assessment,
la	the Medical Panel certifies in writing that it
is	is still unable to determine the medical
g	question because an injury has not stabilised,
e	the injury to the person is deemed to be
L	significant injury.".
n	32. Operation of Panel provisions of Accident
a
ri	Compensation Act 1985
to	In section 28LZL of the Wrongs Act 1958 after
ic	"to (6B)," insert "65(8), 65(9),".
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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 2—Amendments to Wrongs Act 1958

s. 33

33. Provision of assessment information to court

After section 28LZM(4) of the Wrongs Act 1958

ts	insert—
n	"(5) If the injury is deemed under section
e	28LZG(10) to be significant injury, the
m	claimant must also file in the court a
u	statement to that effect, together with the
c	certificate of the Medical Panel under section
o	28LZG(5).
D

(6) If the injury is deemed under section

ry	28LZGA(4) to be significant injury, the
ta	claimant must also file in the court a
n	statement to that effect, together with the
e	certificate of the Medical Panel under that
m	sub-section.".
ia	34. Regulations
rl
a	After section 28LZP(2)(a) of the Wrongs Act
P	1958 insert—
d	"(ab) may prescribe forms for use under this Part;
n	and".
a

35. Transitional

n

o	After section 28LZQ(3) of the Wrongs Act 1958
ti	insert—
la	"(4) Despite the amendment of section 28LF by
is	section 14(2) of the Wrongs and Other
g	Acts (Law of Negligence) Act 2003, section
e	28LF continues to apply to any proceedings
L	in which damages were awarded before the
n	date on which that Act received the Royal
a
ri	Assent as if section 28LF had not been
amended by section 14(2) of that Act.".
to
ic	__________________
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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 3—Amendments to Wrongs and Limitation of Actions Acts (Insurance

s. 36

Reform) Act 2003

PART 3—AMENDMENTS TO WRONGS AND LIMITATION

OF ACTIONS ACTS (INSURANCE REFORM) ACT 2003

ts

n 36. Definition

e	See:	In section 3 of the Wrongs and Limitation of
Act No.
m	60/2003.	Actions Acts (Insurance Reform) Act 2003, in
u	LawToday:	proposed section 24AE, the definition of
c
dpc.vic.	"economic loss" is repealed.
o	gov.au
D

ry	37. Application of Part
ta	In section 3 of the Wrongs and Limitation of
n	Actions Acts (Insurance Reform) Act 2003, in
e	proposed section 24AF(1) for "in contract, tort"
m	substitute "in tort, in contract, under statute".
ia	38. Liability for contributory negligence
rl
a	In section 3 of the Wrongs and Limitation of
P	Actions Acts (Insurance Reform) Act 2003, in proposed section 24AN for "section 26"
d
n	substitute "Part V or Division 7 of Part X".
a	__________________
n
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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 4—Amendments to Victorian Managed Insurance Authority Act 1996

s. 39

PART 4—AMENDMENTS TO VICTORIAN MANAGED

INSURANCE AUTHORITY ACT 1996

ts

n 39. Functions of Authority

e	After section 6(d) of the Victorian Managed	See: Act No.
m	Insurance Authority Act 1996 insert—	11/1996.
u	Reprint No. 2
c	"(da) to provide insurance or indemnities to persons or bodies in accordance with	as at
o	20 September
2001.
D	section 25A;".	LawToday:
ry	dpc.vic. gov.au
ta

n	40. New section 25A inserted
e
m	After section 25 of the Victorian Managed
ia
rl
Insurance Authority Act 1996 insert—

"25A. Provision of insurance and indemnities for

a	other persons or bodies
P

(1) The Minister may direct the Authority to

d	provide insurance or an indemnity to—
n

a	(a)	a person or body specified in the
n	direction; or
o

ti	(b) persons or bodies in a class of person or
la	body specified in the direction.
is	(2) The Minister must consult with the Authority
g	before giving a direction under this section.
e	(3) A direction under this section must be in
L	writing and may specify—
n	(a) the risks to be insured or indemnified;
a
ri	(b) the maximum value of liability to be
to	covered;
ic	(c) the term (not exceeding one year) for
V	which the insurance or indemnity is to be provided;

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 4—Amendments to Victorian Managed Insurance Authority Act 1996

s. 40

(d) any other terms and conditions for the provision of the insurance or indemnity

ts	that the Minister thinks fit.
n	(4) Subject to sub-section (6), the Authority
e	must comply with a direction under this
m	section.
u	(5) The Authority may by notice in writing
c	require any person or body to whom or
o	which insurance or an indemnity is to be
D	provided under this section to pay a premium
ry	for that insurance or indemnity.
ta	(6) The Authority may refuse to insure or
n	indemnify a person or body under this
e	section if the relevant premium is not paid
m	within the time (being not less than 30 days)
ia	specified in the notice under sub-section (5).
rl	(7) As soon as possible after giving a direction
a	under this section to the Authority, the
P	Minister must cause a copy of the direction
d	to be published in the Government Gazette.
n
a	(8) The Authority must include in its annual report under the Financial Management
n
o	Act 1994 a copy of each direction given to it
ti	by the Minister under this section during the
la	year to which the report relates.".
is	__________________
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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 5—Amendments to Building Act 1993

s. 41

PART 5—AMENDMENTS TO BUILDING ACT 1993

ts 41. Definition of required insurance

n	In section 3(1) of the Building Act 1993 for the	See:
e	Act No.
definition of "required insurance" substitute—	126/1993.
m	Reprint No. 5
u	' "required insurance" means the insurance	as at
31 May 2003
c	required by order under section 135 and, in	and
o	the case of insurance to which	amending Act
D	Nos 26/2001
section 137AA applies, complying with	and 60/2003
ry	section 137AA;'.	LawToday:
ta	dpc.vic. gov.au
n
e

42. New section 137AA inserted

m

ia	After section 137 of the Building Act 1993
rl	insert—
a	'137AA. Insurance for domestic building work to
P	be provided by designated insurers
d	(1) If an order under section 135 requires a
n
a	builder to be covered by insurance relating to the carrying out of domestic building work
n	or managing or arranging the carrying out of
o
ti	domestic building work, the insurance
la	required by the order must be provided by a
is	designated insurer.
g	(2) For the purposes of sub-section (1) a
e	designated insurer is—
L	(a) a general insurer within the meaning of
n	the Insurance Act 1973 of the
a
ri	Commonwealth; or

to	(b)	a Lloyd's underwriter within the meaning of the Insurance Act 1973 of
ic	the Commonwealth authorised under
V	that Act to carry on insurance business in Australia; or

Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 5—Amendments to Building Act 1993

s. 42

(c) an insurer specified by the Minister by notice under this section.

ts	(3) The Minister may by notice published in the
n	Government Gazette specify an insurer for
e	the purposes of this section.
m	(4) The Minister must not specify an insurer
u	under sub-section (3) unless the Minister is
c	satisfied that the insurer has an acceptable
o	international credit rating and that the insurer
D	does not carry on insurance business in
ry	Australia.
ta	(5) For the purposes of this section an acceptable
n	international credit rating is a rating that—
e	(a) is provided by a credit rating agency
m	specified under sub-section (6); and
ia

rl	(b)	is equal to or exceeds the rating
a	specified in relation to that agency
P	under sub-section (6).

d	(6) The Minister may by notice published in the
n	Government Gazette—
a

(a) specify a credit rating agency for the

n	purposes of this section; and
o
ti	(b) specify a rating in relation to that
la	agency.
is	(7) The Minister may by notice published in the
g	Government Gazette amend or revoke any
e	notice published under this section.
L

(8) The Minister must consult with the Minister

n

a	for the time being administering the
ri	Victorian Managed Insurance Authority
to	Act 1996 before publishing any notice under
ic	this section.

(9) In this section "insurance" has the same meaning as it has in section 135.

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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Part 5—Amendments to Building Act 1993

s. 42

(10) This section applies only to insurance taken

out on or after the commencement of
section 42 of the Wrongs and Other Acts

ts	(Law of Negligence) Act 2003.'.
n
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Wrongs and Other Acts (Law of Negligence) Act 2003

Act No. 102/2003

Endnotes

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 30 October 2003
e
Legislative Council: 25 November 2003
m
u	The long title for the Bill for this Act was "to amend the Wrongs Act
c	1958, the Wrongs and Limitation of Actions Acts (Insurance Reform)
o	Act 2003, the Victorian Managed Insurance Authority Act 1996 and
D	the Building Act 1993 and for other purposes."
ry	Constitution Act 1975:
ta	Section 85(5) statement:
n	Legislative Assembly: 30 October 2003
e	Legislative Council: 25 November 2003
m
ia
rl
Absolute majorities:
Legislative Assembly: 20 November 2003
a	Legislative Council: 26 November 2003
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