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PARLIAMENT OF VICTORIA
Accident Compensation (Common Law and
Benefits) Act 2000
Act No.
TABLE OF PROVISIONS
Clause 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) 16
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 20
134AC. Effect of decision on application 40
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
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Clause 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 45
25. Recovery provisions 46
26. Compensation for pain and suffering (new section 138B) 50
138B. Compensation for pain and suffering 50
27. Amendment of Accident Compensation (WorkCover
Insurance) Act 1993 51
28. Amendment of Transport Accident Act 1986 51
29. Compensation for pain and suffering (new section 107A inserted
in Transport Accident Act 1986) 52
107A. Compensation for pain and suffering 52
30. Amendment of Dangerous Goods Act 1985 53
31. Consequential amendment 54
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 55
NOTES 56
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s. 1
PARLIAMENT OF VICTORIA
Initiated in Assembly 12 April 2000
As amended by Assembly 11 May 2000
A BILL
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.
Accident Compensation (Common Law
and Benefits) Act 2000
The Parliament of Victoria enacts as follows:
1. Purpose
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The purpose of this Act is to--
(a) provide for the restoration of common law
actions for damages with effect from
20 October 1999;
5 (b) increase the amount of compensation
payable for non-economic loss;
(c) provide for regular payments for overtime
and shift allowances to be included when
calculating a worker's weekly payments for
10 the first 26 weeks;
(d) make miscellaneous amendments to the
Accident Compensation Act 1985 to
improve the operation of the Act;
(e) amend the Dangerous Goods Act 1985, the
15 Transport Accident Act 1986, the Accident
Compensation (WorkCover Insurance)
Act 1993 and the Extractive Industries
Development Act 1995.
2. Commencement
20 (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
25 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.
30 (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.
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(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.
5 (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
10 Act 1985 in the definition of "medical question",
after paragraph (g) insert--
"; or
(h) a question prescribed to be a medical
question in respect of an application for
15 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
20 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
25 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--
30 (a) during the relevant period under sub-
section (1), the worker has worked
overtime or shift work in accordance
with a regular and established pattern;
and
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(b) that pattern was substantially uniform
in the number of hours of overtime
worked; and
(c) the worker would have continued to
5 work overtime or shift work in
accordance with that pattern if not for
the incapacity resulting from or
materially contributed to by the
relevant injury.
10 (1B) Sub-section (1A) and sub-section (4) (as
amended by section 4 of the Accident
Compensation (Common Law and
Benefits) Act 2000) apply in respect of a
claim for weekly payments given, served or
15 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
20 Compensation (Common Law and
Benefits) Act 2000 continues to apply in
respect of a claim for weekly payments
given, served or lodged before that
commencement.".
25 (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--
30 "; or
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(iii) payments for regular overtime or shift
allowances are no longer included in the
worker's pre-injury average weekly
earnings.".
5 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
10 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-
15 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
20 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
25 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
30 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
35 medical question to a Medical Panel on an
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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.
5 (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)
10 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
15 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
20 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
25 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
30 make an application under this section with
the consent of the worker and in the absence
of a dispute.
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(3) If a Conciliation Officer is satisfied after
considering an application under this section
that--
(a) the medical question is in an
5 appropriate form; and
(b) the worker has given informed and
genuine consent; and
(c) the medical question is relevant and
would assist in the consideration and
10 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
15 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.".
20 8. Consequential amendment of section 58
In section 58(3) of the Accident Compensation
Act 1985, after "dispute" (where twice occurring)
insert "or an application under section 55A".
9. Deputy Convenor (section 63 amended)
25 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
30 (b) may appoint a Deputy Convenor.
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(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.
5 (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.".
10. Protection of consultants (section 63 amended)
10 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
Medical Panel by a consultant engaged for
15 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)
20 (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--
25 (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
30 or body is satisfied have been agreed
and those facts or questions that are in
dispute.
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(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
5 person or body to the Medical Panel.".
(2) Section 67(4A) of the Accident Compensation
Act 1985 is repealed.
12. Ministerial guidelines (section 65 amended)
For section 65(8) of the Accident Compensation
10 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
15 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
20 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
25 section,".
(3) After section 91(7) of the Accident
Compensation Act 1985 insert--
"(7A) For the purposes of section 134AB--
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(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
5 injury; and
(b) impairments from unrelated injuries or
causes are to be disregarded in making
an assessment.".
(4) After section 91(7A) of the Accident
10 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
15 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
20 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
25 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
30 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)
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(1) In section 98C(2) of the Accident Compensation
Act 1985--
(a) in paragraph (b) in the formula--
(i) for "$5000" substitute "$10 300";
5 (ii) for "$2000" substitute "$2060";
(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--
10 (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
15 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--
20 (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";
25 (d) in paragraph (e) for "$300 000" substitute
"$309 100";
(e) in paragraphs (c) and (d) for "not less"
substitute "more".
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(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"
5 substitute "$309 100".
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
10 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.
15 (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
20 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
25 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).".
30 (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
35 to the worker--
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(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)
5 and 134AB(15); and".
(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
10 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.
15 (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
20 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
25 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.
30 (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
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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
5 injury can not be made until the worker
attains the age of 18 years.".
(4) In section 104B of the Accident Compensation
Act 1985--
(a) in sub-section (6) for "assessment" (where
10 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
15 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";
20 (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
25 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
30 Accident Compensation (Common Law
and Benefits) Act 2000 applies in respect
of--
(a) all claims for compensation under
section 98C given, served or lodged on
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or after the commencement of section
16 of the Accident Compensation
(Common Law and Benefits) Act
2000;
5 (b) an assessment for the purposes of
sections 134AB(3) and 134AB(15) in
respect of an injury to a worker on or
after 20 October 1999 whose claim for
compensation under section 98C was
10 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 (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
20 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
25 amended by section 16 of the Accident
Compensation (Common Law and
Benefits) Act 2000 applies in respect of the
subsequent claim.
(16) Subject to sub-section (14), this section as in
30 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,
35 served or lodged before the commencement
of section 16 of the Accident Compensation
(Common Law and Benefits) Act 2000.".
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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
5 (11A) of confirming in writing that he or she
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
10 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
15 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
20 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
25 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,
30 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
35 14 days of obtaining the opinion of the
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Medical Panel under section 67 advise the
worker of the opinion and the entitlement of
the worker, if any, under section 98C or
section 98E and of the consequences as
5 specified in sub-section (11A) of confirming
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
10 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
15 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
20 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
25 (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--
30 "(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,
35 he or she is precluded from subsequently
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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--
5 "(17) This section as amended by section 17 of the
Accident Compensation (Common Law
and Benefits) Act 2000 applies in respect
of--
(a) all claims for compensation under
10 section 98C given, served or lodged on
or after the commencement of section
17 of the Accident Compensation
(Common Law and Benefits) Act
2000;
15 (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
20 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--
25 '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
30 compensation in respect of an injury arising
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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
5 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 Act 1986 on or after
10 20 October 1999--
(i) otherwise than under Part III of
the Wrongs Act 1958, against the
employer or any other person,
subject to and in accordance with
15 the Transport Accident Act
1986; or
(ii) under Part III of the Wrongs Act
1958 against the employer or the
employer and any other person,
20 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
25 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
30 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
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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
5 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--
10 (a) shall not, in proceedings in respect of
the injury, recover any damages for
non-pecuniary loss except--
(i) in accordance with the Transport
Accident Act 1986 and sub-
15 sections (25)(b), (26) and (36)(b)
of this section; or
(ii) in proceedings of a kind referred
to in section 134AA(b) and in
accordance with sub-sections
20 (25)(b), (26) and (36)(b) of this
section; or
(iii) if sub-paragraphs (i) and (ii) do
not apply, as permitted by and in
accordance with this section; and
25 (b) shall not, in proceedings in respect of
the injury recover any damages for
pecuniary loss except--
(i) in proceedings of a kind referred
to in a paragraph of section
30 134AA and in accordance with
sub-sections (25)(a), (26) and
(36)(a) of this section; or
(ii) if sub-paragraph (i) does not
apply, as permitted by and in
35 accordance with this section.
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(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
5 contributing factor, and the injury is a
serious injury and arose on or after 20
October 1999.
(3) A worker may not bring proceedings in
accordance with this section unless--
10 (a) assessments of the degree of
impairment of the worker have been
made under section 104B; and
(b) the worker has made an application
under sub-section (4).
15 (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
20 (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
25 (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
30 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
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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-
5 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
examination, the period between the date on
which the worker so refused to comply, or
10 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
15 120 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
20 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).
25 (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--
30 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
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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
5 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.
(10) The worker, within 28 days after receiving
10 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))
15 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
20 inadmissible in evidence--
(a) on behalf of the Authority or self-
insurer if--
(i) it was in existence, and the
employer, Authority or self-
25 insurer, or the legal representative
or any of them, was aware of it,
before the date by which the
advice of the Authority or self-
insurer is required to be given
30 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
35 (b) on behalf of the worker if--
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(i) it was in existence, and the worker
or the worker's legal
representative was aware of it,
before the expiration of 28 days
5 after receiving the advice under
sub-sections (7) and (8); and
(ii) it had not been disclosed to the
other party in accordance with
sub-section (5) or (10).
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
15 (22), unless--
(a) the worker and the Authority or self-
insurer hold, or begin, a conference
within 21 days after the response date;
and
20 (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
25 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
30 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
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(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
5 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.
(13) If the Authority or self-insurer does not
10 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.
15 (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,
20 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).
25 (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.
30 (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
35 respect of the injury unless--
(a) the Authority or self-insurer--
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(i) is satisfied that the injury is a
serious injury; and
(ii) issues to the worker a certificate
in writing consenting to the
5 bringing of the proceedings; or
(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)
10 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
15 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
20 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.
25 (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;
30 (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
35 undertake suitable employment or any
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employment including alternative or
further or additional employment and
the extent of such inability;
(c) no finding (other than a finding that the
5 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
10 Authority is satisfied that--
(a) the worker is unable to commence
proceedings in accordance with this
section because of the operation of sub-
section (12) or (16)(b); and
15 (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
20 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-
25 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.
30 (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) if the total pecuniary loss damages
35 assessed, before the reduction (if
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any) under section 26(1) of the
Wrongs Act 1958 and before the
reduction (if any) under sub-
section (25), is less than $35 120
5 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
10 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
15 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
20 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
25 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--
30 (a) of the monetary thresholds and
statutory maximums specified by or
under sub-section (22); or
(b) that any injury in respect of which the
proceeding has been brought has been
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deemed, found, or required to be found,
to be a serious injury; or
(c) that the Authority or self-insurer has
been satisfied that the injury is a serious
5 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
10 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
15 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
20 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
25 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
30 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
35 pecuniary loss, the amount of
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compensation (if any) paid otherwise
than under section 98C, 98E and 99 or
to the extent that section 93(10)(a) of
the Transport Accident Act 1986
5 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-
10 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
15 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
20 application for leave of the court under
sub-section (16), costs are to be
awarded against a party against whom a
decision is made; and
(b) unless sub-section (28) applies in
25 proceedings for the recovery of
damages in accordance with this
section--
(i) if no liability to pay damages is
established, costs are to be
30 awarded against the claimant; and
(ii) if damages are assessed but cannot
be awarded under this section,
each party bears its own costs; and
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(iii) if damages are awarded, costs are
to be awarded against the
Authority or self-insurer.
(28) In proceedings for the recovery of damages
5 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
10 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
15 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
20 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
25 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;
30 (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
35 the worker's statutory counter offer
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under that sub-section, each party bears
its own costs--
and the court must not otherwise make an
order as to costs.
5 (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.
10 (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
15 (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
20 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
25 (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.
30 (32) Where an award of damages in accordance
with this section is to include an amount,
assessed as a lump sum, in respect of
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damages for future loss which is referable
to--
(a) deprivation or impairment of earning
capacity; or
5 (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--
10 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
15 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.
20 (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
25 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.
30 (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.
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(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-
5 insurer is not liable--
(a) where pecuniary loss damages are
awarded, to make payments under
section 93CA, 93CB, 93CC or 93CD in
respect of the injury; or
10 (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--
15 "determination date", in relation to an
injury, means the date on which--
(a) if the worker is assessed under
section 104B to have a degree of
impairment of 30 per centum or
20 more, the date on which the
worker receives advice under sub-
section (7); or
(b) if the worker is assessed under
section 104B to have a degree of
25 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
30 injury; or
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(ii) on which a court gives leave
under sub-section (16)(b)--
whichever is applicable;
"medical report" means--
5 (a) a statement in writing on medical
matters concerning the worker,
made by a medical practitioner;
and
(b) includes any document which the
10 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
15 which he or she obtained or
caused to be brought into
existence subsequently;
"pain and suffering damages" means
damages for pain and suffering, loss of
20 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
25 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--
30 (a) permanent serious impairment or
loss of a body function; or
(b) permanent serious disfigurement;
or
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(c) permanent severe mental or
permanent severe behavioural
disturbance or disorder; or
(d) loss of a foetus.
5 (38) For the purposes of the assessment of
"serious injury" in accordance with sub-
sections (16) and (19)--
(a) the following definitions apply--
"foetus" has the same meaning as in
10 section 98C(5);
"income from personal exertion" has
the same meaning as in section
6(2) of the Transport Accident
Act 1986;
15 (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
20 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
25 cases in the range of possible
impairments or losses of a body
function, disfigurements, or mental or
behavioural disturbances or disorders,
respectively;
30 (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
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earning capacity consequence is, when
judged by comparison with other cases
in the range of possible impairments or
losses of a body function, or
5 disfigurements, as the case may be,
fairly described as being more than
significant or marked, and as being at
least very considerable;
(d) a mental or behavioural disturbance or
10 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
15 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
20 severe;
(e) where a worker relies upon paragraph
(a), (b) or (c) of the definition of
serious injury in sub-section (37), the
Authority or self-insurer shall not grant
25 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
30 paragraph (b) unless the worker
establishes in addition to the
requirements of paragraph (c) or (d), as
the case may be, that--
(i) at the date of a decision under
35 sub-section (16)(a) or at the date
of the hearing of an application
under sub-section (16)(b), the
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worker has a loss of earning
capacity of 40 per centum or
more, measured (except in the
case of a worker referred to in
5 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
(ii) the worker (including a worker
10 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
15 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
20 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
25 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
30 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
35 worker's earning capacity had the injury
not occurred;
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(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,
5 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
10 retraining, a capacity for any
employment including alternative
employment or further or additional
employment which, if exercised, would
result in the worker earning more than
15 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
20 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;
25 (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
30 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
35 maximums specified by or under sub-
section (22) must be disregarded for the
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purposes of the assessment of "serious
injury".
134AC. Effect of decision on application
A decision granting or refusing leave made
5 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.
10 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
15 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.
20 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
25 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
30 respect to procedures under that section.
(2) The directions must be published in the
Government Gazette.
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(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
5 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
10 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--
15 "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
20 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
25 costs order.
(2) A legal costs order--
(a) must be published in the Government
Gazette;
(b) takes effect on and from the date on
30 which it is published or any later date
of commencement as may be specified
in the order;
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(c) applies to legal costs incurred on or
after the date of commencement of the
order.
(3) A legal costs order may--
5 (a) apply generally or be limited in its
application by reference to classes of
proceedings, costs, circumstances or
factors;
(b) apply differently according to different
10 circumstances or factors of a specified
kind;
(c) specify different methods of calculation
whether by reference to formulas,
scales, tables or other means;
15 (d) apply, adopt or incorporate (with or
without modification) the provisions of
any document, code, standard, rule,
specification or method whether as
formulated, issued, prescribed or
20 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
25 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
30 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.".
35 20. Consequential amendments
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(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
5 Accident Compensation Act 1985 substitute--
"Division 9--Actions in respect of injuries to
which Division 8A does not apply".
(3) Before section 135C of the Accident
Compensation Act 1985 insert--
10 "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
15 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
20 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
25 or 135A must not be commenced--
(a) subject to the Limitation of Actions
Act 1958, unless paragraph (b) applies,
unless an application for a
determination from the worker under
30 section 135A(2B) has been made to the
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Authority or a self-insurer before
1 September 2000; or
(b) if the cause of action arose before
12 November 1997 and the incapacity
5 arising from the injury was not known
until after 12 November 1997, after the
expiration of 3 years after the
incapacity was known.".
23. Amendment of section 135B
10 (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
15 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--
20 "(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
25 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)
30 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).".
35 24. Structured settlements (new section 135D)
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After section 135C of the Accident
Compensation Act 1985 insert--
"135D. Structured settlements
(1) This section applies if--
5 (a) an award of damages is made by a court
in proceedings under this Act; and
(b) the plaintiff and the defendant agree in
the proceedings that the whole or part
of the amount of damages awarded is to
10 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--
15 (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.
20 (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
25 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.
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(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
5 arrangement.
(5) The costs of an application under sub-section
(4) must be borne by the party making the
application.".
25. Recovery provisions
10 (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
15 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
20 section 25 of the Accident
Compensation (Common Law and
Benefits) Act 2000; and
(b) the Transport Accident Commission
would, if no compensation were
25 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--
30 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
35 compensation paid or payable under this Act
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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.
5 (5B) If--
(a) a self-insurer has appointed the
Transport Accident Commission to be
its agent under section 143A; and
(b) the self-insurer is required under this
10 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
15 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;
20 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
25 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
30 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.".
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(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
5 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
10 or injury and the Authority or self-insurer is
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
15 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
Accident Commission as its agent and a right
20 of recovery arises under section 137(5B) in
respect of an injury or death, the
arrangement with the Transport Accident
Commission in respect of the administration
of claims for compensation for that injury or
25 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
30 agent of the Victorian WorkCover Authority
as effectively, efficiently and economically
as possible;
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(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
5 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
10 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;".
(7) After section 13(4) of the Transport Accident
15 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--
20 (a) acting as an authorised agent under
section 23 of the Accident
Compensation Act 1985; and
(b) acting as an agent of a self-insurer
under section 143A of the Accident
25 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
30 12(1)(jb) and 12(1)(jc);".
(9) After section 27(3)(hb) of the Transport
Accident Act 1986 insert--
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"(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
5 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
10 conferred by section 86 of the Sentencing
Act 1991 to order an offender to pay
compensation for pain and suffering if the
compensation would be for pain and
suffering to a person--
15 (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
20 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
25 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)
30 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
35 entitlement to any compensation under this
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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
5 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
10 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.".
15 (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
20 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
25 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
30 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
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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)
5 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
10 Act 1991 to order an offender to pay
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
15 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 Road Safety
20 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
25 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
30 person is not to be regarded as having an
entitlement to any compensation under this
Act if the entitlement would only arise under
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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
5 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
10 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,
15 storage, handling, use or disposal of
explosives with respect to activities carried
out under the Mineral Resources
Development Act 1990 and the Extractive
Industries Development Act 1995.".
20 (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--
25 '(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)--
30 (a) to the extent that they relate to the
manufacture, supply, sale, transfer,
transport, storage, handling, use or
disposal of explosives; and
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(b) only with respect to activities carried
out under the Mineral Resources
Development Act 1990 and the
Extractive Industries Development
5 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
10 Resources Development Act 1990; or
(b) the Chief Inspector of Quarries under
section 3(1) of the Extractive
Industries Development Act 1995.'.
31. Consequential amendment
15 In section 56(1) of the Extractive Industries
Development Act 1995, paragraphs (d) and (e)
are repealed.
32. Supreme Court-limitation of jurisdiction
After section 252C of the Accident
20 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
25 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
30 After section 132A of the Transport Accident
Act 1986 insert--
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"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
5 Benefits) Act 2000 to alter or vary
section 85 of the Constitution Act 1975.".
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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