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PARLIAMENT OF VICTORIA
Wrongs and Other Acts (Law of Negligence) Act
2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENTS TO WRONGS ACT 1958 3
3. New Parts X, XI and XII inserted 3
PART X--NEGLIGENCE 3
Division 1--Preliminary 3
43. Definitions 3
44. Application of Part 4
45. Exclusions from Part 4
46. Application to contract 5
47. Effect of this Part on the common law 6
Division 2--Duty of Care 6
48. General principles 6
49. Other principles 7
50. Duty to warn of risk--reasonable care 7
Division 3--Causation 8
51. General principles 8
52. Burden of proof 9
Division 4--Awareness of Risk 9
53. Meaning of obvious risk 9
54. Voluntary assumption of risk 9
55. No liability for materialisation of inherent risk 10
56. Plaintiff to prove unawareness of risk 10
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Clause Page
Division 5--Negligence of professionals and persons
professing particular skills 11
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57. Definition 11
58. Standard of care to be expected of persons holding out
as possessing a particular skill 12
59. Standard of care for professionals 12
60. Duty to warn of risk 13
Division 6--Non-delegable duties and vicarious liability 13
61. Liability based on non-delegable duty 13
Division 7--Contributory Negligence 14
62. Standard of care for contributory negligence 14
63. Contributory negligence can defeat claim 14
Division 8--General 14
64. Regulations 14
65. Supreme Court--limitation of jurisdiction 15
66. Transitional 15
PART XI--MENTAL HARM 16
67. Definitions 16
68. Application of Part 16
69. Exclusions from Part 17
70. Application to contract 18
71. Effect of this Part on the common law 18
72. Mental harm--duty of care 19
73. Limitation on recovery of damages for pure mental
harm arising from shock 19
74. Limitation on recovery of damages for consequential
mental harm 20
75. Liability for economic loss for mental harm 21
76. Regulations 21
77. Supreme Court--limitation of jurisdiction 21
78. Transitional 21
PART XII--LIABILITY OF PUBLIC AUTHORITIES 22
79. Definitions 22
80. Application of Part 23
81. Exclusions from Part 23
82. Effect of this Part on the common law 24
83. Principles concerning resources, responsibilities etc. of
public authorities 24
84. Wrongful exercise of or failure to exercise function 25
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Clause Page
85. Exercise of function or decision to exercise does not
create duty 26
86. Supreme Court--limitation of jurisdiction 26
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87. Transitional 26
4. New sections 19A to 19C inserted 27
19A. Limitation on damages for loss of gratuitous care 27
19B. Calculation of damages for gratuitous care 28
19C. Application of sections 19A and 19B 29
5. New sections 23AA, 23AB and 23AC inserted 30
23AA. Regulations 30
23AB. Supreme Court--limitation of jurisdiction 30
23AC. Transitional for gratuitous care 30
6. Contribution--transitional 31
7. Contributory negligence 31
8. Definition 31
9. New section 28HA inserted 32
28HA. Tariffs for damages for non-economic loss 32
10. New sections 28ID to 28IF inserted 32
28ID. Limitation on damages for loss of capacity to provide
care for others 32
28IE. Calculation of damages for gratuitous care 33
28IF. Application of sections 28ID and 28IE 34
11. Supreme Court--limitation of jurisdiction 35
12. New sections 28LAB and 28LAC inserted 35
28LAB. Transitional for tariffs for damages for non-economic
loss 35
28LAC. Transitional for gratuitous care 36
13. Definitions 36
14. What is significant injury? 36
15. How is the degree of impairment to be assessed? 37
16. Certificate of assessment 37
17. New section 28LNA inserted 38
28LNA. Certificate where injury not stabilised 38
18. Agreement to waive assessment 39
19. What if the respondent asks for more information? 39
20. Repeal of section 28LS 39
21. Information to be provided to respondent 40
22. Limitation period suspended 40
23. New section 28LW substituted and sections 28LWA to 28LWE
inserted 41
28LW. Response to medical assessment 41
28LWA. What if the respondent asks for more information? 42
28LWB. What if the respondent disputes responsibility? 42
28LWC. Can a respondent bind any other respondent? 43
28LWD. Statement not admission of liability 44
28LWE. Referral of medical question to Medical Panel 44
24. References to opinion 45
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25. Respondent to pay fees and costs of referral 45
26. New section 28LXA inserted 45
28LXA. Administration 45
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27. Procedure of Medical Panel 47
28. Respondent to provide information to Medical Panel 48
29. Request to claimant 49
30. Request to registered health practitioner 49
31. New section 28LZG substituted and section 28LZGA inserted 49
28LZG. Determination of Panel 49
28LZGA. Further assessment 52
32. Operation of Panel provisions of Accident Compensation
52
Act 1985
33. Provision of assessment information to court 53
34. Regulations 53
35. Transitional 53
PART 3--AMENDMENTS TO WRONGS AND LIMITATION
OF ACTIONS ACTS (INSURANCE REFORM) ACT 2003 54
36. Definition 54
37. Application of Part 54
38. Liability for contributory negligence 54
PART 4--AMENDMENTS TO VICTORIAN MANAGED
INSURANCE AUTHORITY ACT 1996 55
39. Functions of Authority 55
40. New section 25A inserted 55
25A. Provision of insurance and indemnities for other
persons or bodies 55
PART 5--AMENDMENTS TO BUILDING ACT 1993 57
41. Definition of required insurance 57
42. New section 137AA inserted 57
137AA. Insurance for domestic building work to be provided
by designated insurers 57
ENDNOTES 60
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PARLIAMENT OF VICTORIA
Initiated in Assembly 28 October 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Wrongs Act 1958, the Wrongs and Limitation of
Actions Acts (Insurance Reform) Act 2003, the Victorian
Managed Insurance Authority Act 1996 and the Building Act 1993
and for other purposes.
Wrongs and Other Acts (Law of
Negligence) Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to amend the Wrongs Act 1958 in relation
5 to--
(i) negligence;
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
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s. 2
(ii) contributory negligence;
(iii) mental harm;
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(iv) the liability of public authorities;
(v) damages for injury or death;
5 (b) to amend the Wrongs and Limitation of
Actions Acts (Insurance Reform) Act 2003
in relation to proportionate liability;
(c) to amend the Victorian Managed
Insurance Authority Act 1996 to empower
10 the Authority to insure or indemnify other
persons and bodies;
(d) to amend the Building Act 1993 in relation
to insurance for domestic building work.
2. Commencement
15 (1) This Act (except sections 6 and 14(2) and Part 5)
comes into operation on the day after the day on
which it receives the Royal Assent.
(2) Section 6 is deemed to have come into operation
on 1 October 2003.
20 (3) Section 14(2) is deemed to have come into
operation on 21 May 2003.
(4) Subject to sub-section (5), Part 5 comes into
operation on a day to be proclaimed.
(5) If Part 5 does not come into operation before
25 1 January 2005, it comes into operation on that
day.
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PART 2--AMENDMENTS TO WRONGS ACT 1958
Victorian Legislation and Parliamentary Documents
3. New Parts X, XI and XII inserted
See:
After Part IX of the Wrongs Act 1958 insert-- Act No.
6420.
'PART X--NEGLIGENCE Reprint No. 8
as at
16 June 2003
5 and
Division 1--Preliminary amending
Act No.
60/2003.
43. Definitions LawToday:
www.dms.
In this Part-- dpc.vic.
gov.au
"court" includes tribunal, and, in relation to
a claim for damages, means any court
10 or tribunal by or before which the claim
falls to be determined;
"damages" includes any form of monetary
compensation;
"harm" means harm of any kind and
15 includes--
(a) injury or death; and
(b) damage to property; and
(c) economic loss;
"injury" means personal or bodily injury
20 and includes--
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and
(c) disease; and
25 (d) aggravation, acceleration or
recurrence of an injury or disease;
"negligence" means failure to exercise
reasonable care.
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44. Application of Part
This Part applies to any claim for damages
Victorian Legislation and Parliamentary Documents
resulting from negligence, regardless of
whether the claim is brought in tort, in
5 contract, under statute or otherwise.
45. Exclusions from Part
(1) This Part does not apply to the following
claims for damages--
(a) a claim to which Part 3, 6 or 10 of the
10 Transport Accident Act 1986 applies;
(b) a claim to which Part IV of the
Accident Compensation Act 1985
applies;
(c) a claim in respect of an injury which
15 entitles, or may entitle, a worker, or a
dependant of a worker, within the
meaning of the Workers
Compensation Act 1958 to
compensation under that Act;
20 (d) a claim in respect of an injury which
entitles, or may entitle, a person or a
dependant of a person to compensation
under any of the following--
(i) Part V of the Country Fire
25 Authority Act 1958 or the
regulations made under that Act;
(ii) Part 3 of the Victoria State
Emergency Service Act 1987;
(iii) Part 6 of the Emergency
30 Management Act 1986;
(iv) the Police Assistance
Compensation Act 1968;
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(v) Part 8 of the Juries Act 2000 or
Part VII of the Juries Act 1967;
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(vi) Division 6 of Part II of the
Education Act 1958;
5 (e) subject to sub-section (2), a claim for
damages in respect of an injury that is a
dust-related condition within the
meaning of the Administration and
Probate Act 1958; or
10 (f) subject to sub-section (2), a claim for
damages in respect of an injury
resulting from smoking or other use of
tobacco products, within the meaning
of the Tobacco Act 1987, or exposure
15 to tobacco smoke.
(2) A claim for damages referred to in sub-
section (1)(e) or (1)(f) does not include a
claim for damages that relates to the
provision of or the failure to provide a health
20 service.
(3) This Part does not apply to claims in
proceedings of a class that is excluded by the
regulations from the operation of this Part.
46. Application to contract
25 (1) This Part does not prevent the parties to a
contract from making express provision for
their rights, obligations and liabilities under
the contract (the express provision) in
relation to any matter to which this Part
30 applies and does not limit or otherwise affect
the operation of the express provision.
(2) Sub-section (1) extends to any provision of
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
Victorian Legislation and Parliamentary Documents
not intended to affect the common law.
Division 2--Duty of Care
5 48. General principles
(1) A person is not negligent in failing to take
precautions against a risk of harm unless--
(a) the risk was foreseeable (that is, it is a
risk of which the person knew or ought
10 to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable
person in the person's position would
have taken those precautions.
15 (2) In determining whether a reasonable person
would have taken precautions against a risk
of harm, the court is to consider the
following (amongst other relevant things)--
(a) the probability that the harm would
20 occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to
avoid the risk of harm;
(d) the social utility of the activity that
25 creates the risk of harm.
(3) For the purposes of sub-section (1)(b)--
(a) insignificant risks include, but are not
limited to, risks that are far-fetched or
fanciful; and
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(b) risks that are not insignificant are all
risks other than insignificant risks and
include, but are not limited to,
Victorian Legislation and Parliamentary Documents
significant risks.
5 49. Other principles
In a proceeding relating to liability for
negligence--
(a) the burden of taking precautions to
avoid a risk of harm includes the
10 burden of taking precautions to avoid
similar risks of harm for which the
person may be responsible; and
(b) the fact that a risk of harm could have
been avoided by doing something in a
15 different way does not of itself give rise
to or affect liability for the way in
which the thing was done; and
(c) the subsequent taking of action that
would (had the action been taken
20 earlier) have avoided a risk of harm
does not of itself give rise to or affect
liability in respect of the risk and does
not of itself constitute an admission of
liability in connection with the risk.
25 50. Duty to warn of risk--reasonable care
A person (the defendant) who owes a duty
of care to another person (the plaintiff) to
give a warning or other information to the
plaintiff in respect of a risk or other matter,
30 satisfies that duty of care if the defendant
takes reasonable care in giving that warning
or other information.
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Division 3--Causation
51. General principles
Victorian Legislation and Parliamentary Documents
(1) A determination that negligence caused
particular harm comprises the following
5 elements--
(a) that the negligence was a necessary
condition of the occurrence of the harm
(factual causation); and
(b) that it is appropriate for the scope of the
10 negligent person's liability to extend to
the harm so caused (scope of liability).
(2) In determining in an appropriate case, in
accordance with established principles,
whether negligence that cannot be
15 established as a necessary condition of the
occurrence of harm should be taken to
establish factual causation, the court is to
consider (amongst other relevant things)
whether or not and why responsibility for the
20 harm should be imposed on the negligent
party.
(3) If it is relevant to the determination of
factual causation to determine what the
person who suffered harm (the injured
25 person) would have done if the negligent
person had not been negligent, the matter is
to be determined subjectively in the light of
all relevant circumstances.
(4) For the purpose of determining the scope of
30 liability, the court is to consider (amongst
other relevant things) whether or not and
why responsibility for the harm should be
imposed on the negligent party.
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52. Burden of proof
In determining liability for negligence, the
Victorian Legislation and Parliamentary Documents
plaintiff always bears the burden of proving,
on the balance of probabilities, any fact
5 relevant to the issue of causation.
Division 4--Awareness of Risk
53. Meaning of obvious risk
(1) For the purposes of section 54, an obvious
risk to a person who suffers harm is a risk
10 that, in the circumstances, would have been
obvious to a reasonable person in the
position of that person.
(2) Obvious risks include risks that are patent or
a matter of common knowledge.
15 (3) A risk of something occurring can be an
obvious risk even though it has a low
probability of occurring.
(4) A risk can be an obvious risk even if the risk
(or a condition or circumstance that gives
20 rise to the risk) is not prominent,
conspicuous or physically observable.
(5) To remove any doubt, it is declared that a
risk from a thing, including a living thing, is
not an obvious risk if the risk is created
25 because of a failure on the part of a person to
properly operate, maintain, replace, prepare
or care for the thing, unless the failure itself
is an obvious risk.
54. Voluntary assumption of risk
30 (1) If, in a proceeding on a claim for damages
for negligence, a defence of voluntary
assumption of risk (volenti non fit injuria) is
raised and the risk of harm is an obvious
risk, the person who suffered harm is
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presumed to have been aware of the risk,
unless the person proves on the balance of
probabilities that the person was not aware of
Victorian Legislation and Parliamentary Documents
the risk.
5 (2) Sub-section (1) does not apply to--
(a) a proceeding on a claim for damages
relating to the provision of or the
failure to provide a professional service
or health service; or
10 (b) a proceeding on a claim for damages in
respect of risks associated with work
done by one person for another.
(3) Without limiting section 47, the common
law continues to apply, unaffected by sub-
15 section (1), to a proceeding referred to in
sub-section (2).
55. No liability for materialisation of inherent
risk
(1) A person is not liable in negligence for harm
20 suffered by another person as a result of the
materialisation of an inherent risk.
(2) An inherent risk is a risk of something
occurring that cannot be avoided by the
exercise of reasonable care.
25 (3) This section does not operate to exclude
liability in connection with a duty to warn of
a risk.
56. Plaintiff to prove unawareness of risk
(1) In any proceeding where, for the purpose of
30 establishing that a person (the defendant)
has breached a duty of care owed to a person
who suffered harm (the plaintiff), the
plaintiff alleges that the defendant has--
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(a) failed to give a warning about a risk of
harm to the plaintiff; or
Victorian Legislation and Parliamentary Documents
(b) failed to give other information to the
plaintiff--
5 the plaintiff bears the burden of proving, on
the balance of probabilities, that the plaintiff
was not aware of the risk or information.
(2) Sub-section (1) does not apply to a
proceeding on a claim for damages in respect
10 of risks associated with work done by one
person for another.
(3) Despite sub-section (2), sub-section (1)
applies to a proceeding referred to in sub-
section (2) if the proceeding relates to the
15 provision of or the failure to provide a health
service.
(4) Without limiting section 47, the common
law continues to apply, unaffected by sub-
section (1), to a proceeding referred to in
20 sub-section (2) to which sub-section (1) does
not apply.
(5) Nothing in this section is intended to alter
any duty of care to give a warning of a risk
of harm or other information.
25 Division 5--Negligence of professionals and
persons professing particular skills
57. Definition
In this Division "professional" means an
individual practising a profession.
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58. Standard of care to be expected of persons
holding out as possessing a particular skill
Victorian Legislation and Parliamentary Documents
In a case involving an allegation of
negligence against a person (the defendant)
5 who holds himself or herself out as
possessing a particular skill, the standard to
be applied by a court in determining whether
the defendant acted with due care is, subject
to this Division, to be determined by
10 reference to--
(a) what could reasonably be expected of a
person possessing that skill; and
(b) the relevant circumstances as at the date
of the alleged negligence and not a later
15 date.
59. Standard of care for professionals
(1) A professional is not negligent in providing a
professional service if it is established that
the professional acted in a manner that (at
20 the time the service was provided) was
widely accepted in Australia by a significant
number of respected practitioners in the field
(peer professional opinion) as competent
professional practice in the circumstances.
25 (2) However, peer professional opinion cannot
be relied on for the purposes of this section if
the court determines that the opinion is
unreasonable.
(3) The fact that there are differing peer
30 professional opinions widely accepted in
Australia by a significant number of
respected practitioners in the field
concerning a matter does not prevent any one
or more (or all) of those opinions being
35 relied on for the purposes of this section.
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(4) Peer professional opinion does not have to be
universally accepted to be considered widely
accepted.
Victorian Legislation and Parliamentary Documents
(5) If, under this section, a court determines peer
5 professional opinion to be unreasonable, it
must specify in writing the reasons for that
determination.
(6) Sub-section (5) does not apply if a jury
determines the matter.
10 60. Duty to warn of risk
Section 59 does not apply to a liability
arising in connection with the giving of (or
the failure to give) a warning or other
information in respect of a risk or other
15 matter to a person if the giving of the
warning or information is associated with the
provision by a professional of a professional
service.
Division 6--Non-delegable duties and vicarious
20 liability
61. Liability based on non-delegable duty
(1) The extent of liability in tort of a person (the
defendant) for breach of a non-delegable
duty to ensure that reasonable care is taken
25 by a person in the carrying out of any work
or task delegated or otherwise entrusted to
the person by the defendant is to be
determined as if the defendant were
vicariously liable for the negligence of the
30 person in connection with the performance
of the work or task.
(2) This section applies to a claim for damages
in tort whether or not it is a claim for
damages resulting from negligence, despite
35 anything to the contrary in section 44.
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Division 7--Contributory Negligence
62. Standard of care for contributory
Victorian Legislation and Parliamentary Documents
negligence
(1) The principles that are applicable in
5 determining whether a person has been
negligent also apply in determining whether
the person who suffered harm has been
contributorily negligent in failing to take
precautions against the risk of that harm.
10 (2) For that purpose--
(a) the standard of care required of the
person who suffered harm is that of a
reasonable person in the position of that
person; and
15 (b) the matter is to be determined on the
basis of what that person knew or ought
to have known at the time.
63. Contributory negligence can defeat claim
In determining the extent of a reduction in
20 damages by reason of contributory
negligence, a court may determine a
reduction of 100% if the court thinks it just
and equitable to do so, with the result that
the claim for damages is defeated.
25 Division 8--General
64. Regulations
The Governor in Council may make
regulations generally prescribing any matter
or thing required or permitted by this Part to
30 be prescribed or necessary to be prescribed
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),
Victorian Legislation and Parliamentary Documents
51(3), 51(4), 58, 59(5) and 62 to alter or vary
section 85 of the Constitution Act 1975.
5 66. Transitional
(1) This Part extends to negligence arising
before, on or after the commencement day.
(2) Section 61 extends to liability in tort arising
before, on or after the commencement day.
10 (3) Despite sub-sections (1) and (2), this Part
does not apply to proceedings commenced in
a court before the commencement day.
(4) In this section "commencement day"
means the day on which section 3 of the
15 Wrongs and Other Acts (Law of
Negligence) Act 2003 comes into operation.
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PART XI--MENTAL HARM
Victorian Legislation and Parliamentary Documents
67. Definitions
In this Part--
"consequential mental harm" means
5 mental harm that is a consequence of an
injury of any other kind;
"court" includes tribunal, and, in relation to
a claim for damages, means any court
or tribunal by or before which the claim
10 falls to be determined;
"damages" includes any form of monetary
compensation;
"injury" means personal or bodily injury
and includes--
15 (a) pre-natal injury; and
(b) psychological or psychiatric
injury; and
(c) disease; and
(d) aggravation, acceleration or
20 recurrence of an injury or disease;
"mental harm" means psychological or
psychiatric injury;
"negligence" means failure to exercise
reasonable care;
25 "pure mental harm" means mental harm
other than consequential mental harm.
68. Application of Part
This Part applies to any claim for damages
resulting from negligence, regardless of
30 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
Victorian Legislation and Parliamentary Documents
claims for damages--
(a) a claim to which Part 3, 6 or 10 of the
5 Transport Accident Act 1986 applies;
(b) a claim to which Part IV of the
Accident Compensation Act 1985
applies;
(c) a claim in respect of an injury which
10 entitles, or may entitle, a worker, or a
dependant of a worker, within the
meaning of the Workers
Compensation Act 1958 to
compensation under that Act;
15 (d) a claim in respect of an injury which
entitles, or may entitle, a person or a
dependant of a person to compensation
under any of the following--
(i) Part V of the Country Fire
20 Authority Act 1958 or the
regulations made under that Act;
(ii) Part 3 of the Victoria State
Emergency Service Act 1987;
(iii) Part 6 of the Emergency
25 Management Act 1986;
(iv) the Police Assistance
Compensation Act 1968;
(v) Part 8 of the Juries Act 2000 or
Part VII of the Juries Act 1967;
30 (vi) Division 6 of Part II of the
Education Act 1958;
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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
Victorian Legislation and Parliamentary Documents
meaning of the Administration and
5 Probate Act 1958; or
(f) subject to sub-section (2), a claim for
damages in respect of an injury
resulting from smoking or other use of
tobacco products, within the meaning
10 of the Tobacco Act 1987, or exposure
to tobacco smoke.
(2) A claim for damages referred to in sub-
section (1)(e) or (1)(f) does not include a
claim for damages that relates to the
15 provision of or the failure to provide a health
service.
(3) This Part does not apply to claims in
proceedings of a class that is excluded by the
regulations from the operation of this Part.
20 70. Application to contract
(1) This Part does not prevent the parties to a
contract from making express provision for
their rights, obligations and liabilities under
the contract (the express provision) in
25 relation to any matter to which this Part
applies and does not limit or otherwise affect
the operation of the express provision.
(2) Sub-section (1) extends to any provision of
this Part even if the provision applies to
30 liability in contract.
71. Effect of this Part on the common law
Except as provided by this Part, this Part is
not intended to affect the common law.
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72. Mental harm--duty of care
(1) A person (the defendant) does not owe a
Victorian Legislation and Parliamentary Documents
duty to another person (the plaintiff) to take
care not to cause the plaintiff pure mental
5 harm unless the defendant foresaw or ought
to have foreseen that a person of normal
fortitude might, in the circumstances of the
case, suffer a recognised psychiatric illness if
reasonable care were not taken.
10 (2) For the purposes of the application of this
section, the circumstances of the case include
the following--
(a) whether or not the mental harm was
suffered as the result of a sudden shock;
15 (b) whether the plaintiff witnessed, at the
scene, a person being killed, injured or
put in danger;
(c) the nature of the relationship between
the plaintiff and any person killed,
20 injured or put in danger;
(d) whether or not there was a pre-existing
relationship between the plaintiff and
the defendant.
(3) This section does not affect the duty of care
25 of a person (the defendant) to another (the
plaintiff) if the defendant knows, or ought to
know, that the plaintiff is a person of less
than normal fortitude.
73. Limitation on recovery of damages for
30 pure mental harm arising from shock
(1) This section applies to the liability of a
person (the defendant) for pure mental harm
to a person (the plaintiff) arising wholly or
partly from mental or nervous shock in
35 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.
Victorian Legislation and Parliamentary Documents
(2) The plaintiff is not entitled to recover
damages for pure mental harm unless--
5 (a) the plaintiff witnessed, at the scene, the
victim being killed, injured or put in
danger; or
(b) the plaintiff is or was in a close
relationship with the victim.
10 (3) No damages are to be awarded to the
plaintiff for pure mental harm if the recovery
of damages from the defendant by or through
the victim in respect of the act or omission
would be prevented by any provision of this
15 Act or any other written or unwritten law.
74. Limitation on recovery of damages for
consequential mental harm
(1) A person (the plaintiff) is not entitled to
recover damages from another person (the
20 defendant) for consequential mental harm
unless--
(a) the defendant foresaw or ought to have
foreseen that a person of normal
fortitude might, in the circumstances of
25 the case, suffer a recognised psychiatric
illness if reasonable care were not
taken; or
(b) the defendant knew, or ought to have
known, that the plaintiff is a person of
30 less than normal fortitude and foresaw
or ought to have foreseen that the
plaintiff might, in the circumstances of
the case, suffer a recognised psychiatric
illness if reasonable care were not
35 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
Victorian Legislation and Parliamentary Documents
mental harm arose.
5 75. Liability for economic loss for mental
harm
A court cannot make an award of damages
for economic loss for mental harm resulting
from negligence unless the harm consists of
10 a recognised psychiatric illness.
76. Regulations
The Governor in Council may make
regulations generally prescribing any matter
or thing required or permitted by this Part to
15 be prescribed or necessary to be prescribed
to give effect to this Part.
77. Supreme Court--limitation of jurisdiction
It is the intention of sections 73, 74 and 75 to
alter or vary section 85 of the Constitution
20 Act 1975.
78. Transitional
(1) This Part extends to negligence arising
before, on or after the commencement day.
(2) Despite sub-section (1), this Part does not
25 apply to proceedings commenced in a court
before the commencement day.
(3) In this section "commencement day"
means the day on which section 3 of the
Wrongs and Other Acts (Law of
30 Negligence) Act 2003 comes into operation.
__________________
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PART XII--LIABILITY OF PUBLIC
AUTHORITIES
Victorian Legislation and Parliamentary Documents
79. Definitions
In this Part--
5 "damages" includes any form of monetary
compensation;
"exercise" in relation to a function includes
perform a duty;
"function" includes a power, authority or
10 duty;
"negligence" means failure to exercise
reasonable care;
"public authority" means--
(a) the Crown;
15 (b) an Agency within the meaning of
the Public Sector Management
and Employment Act 1998;
(c) a body, whether corporate or
unincorporate, that is established
20 by or under an Act for a public
purpose;
(d) a Council within the meaning of
the Local Government Act 1989;
(e) a body established or appointed
25 for a public purpose by the
Governor in Council or by a
Minister, otherwise than under an
Act;
(f) a person holding an office or
30 position established by or under
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
Victorian Legislation and Parliamentary Documents
Council or a Minister otherwise
5 than under an Act;
(h) any other person or body
prescribed (or of a class
prescribed) as an authority to
which this Part applies (in respect
10 of all or specified functions);
(i) any person or body in respect of
the exercise of a public or other
function of a class prescribed for
the purpose of this Part.
15 80. Application of Part
(1) This Part (except section 84) applies to any
claim for damages resulting from negligence,
regardless of whether the claim is brought in
tort, in contract, under statute or otherwise.
20 (2) Sub-section (1) and section 84 do not apply
if the relevant enactment contains express
provision to the contrary.
81. Exclusions from Part
(1) This Part does not apply to the following
25 claims for damages--
(a) subject to sub-section (2), a claim for
damages in respect of an injury that is a
dust-related condition within the
meaning of the Administration and
30 Probate Act 1958; or
(b) subject to sub-section (2), a claim for
damages in respect of an injury
resulting from smoking or other use of
tobacco products, within the meaning
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of the Tobacco Act 1987, or exposure
to tobacco smoke.
Victorian Legislation and Parliamentary Documents
(2) A claim for damages referred to in sub-
section (1)(a) or (1)(b) does not include a
5 claim for damages that relates to the
provision of or the failure to provide a health
service.
(3) This Part does not apply to a public authority
or class of public authority--
10 (a) that is excluded by the regulations from
the operation of this Part in respect of
all of its functions; or
(b) in respect of specified functions or
functions of a specified class, if the
15 regulations exclude those functions or
that class of functions from the
operation of this Part in respect of that
public authority or class of public
authority.
20 82. Effect of this Part on the common law
Except as provided by sections 83, 84 and
85, this Part is not intended to affect the
common law.
83. Principles concerning resources,
25 responsibilities etc. of public authorities
In determining whether a public authority
has a duty of care or has breached a duty of
care, a court is to consider the following
principles (amongst other relevant things)--
30 (a) the functions required to be exercised
by the authority are limited by the
financial and other resources that are
reasonably available to the authority for
the purpose of exercising those
35 functions;
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(b) the functions required to be exercised
by the authority are to be determined by
reference to the broad range of its
Victorian Legislation and Parliamentary Documents
activities (and not merely by reference
5 to the matter to which the proceeding
relates);
(c) the authority may rely on evidence of
its compliance with the general
procedures and applicable standards for
10 the exercise of its functions as evidence
of the proper exercise of its functions in
the matter to which the proceeding
relates.
84. Wrongful exercise of or failure to exercise
15 function
(1) This section applies to a proceeding for
damages for an alleged breach of statutory
duty by a public authority in connection with
the exercise of or a failure to exercise a
20 function of the authority.
(2) For the purpose of the proceeding, an act or
omission of the public authority relating to a
function conferred on the public authority
specifically in its capacity as a public
25 authority does not constitute a breach of
statutory duty unless the act or omission was
in the circumstances so unreasonable that no
public authority having the functions of the
authority in question could properly consider
30 the act or omission to be a reasonable
exercise of its functions.
(3) For the purpose of the proceeding the public
authority is not liable for damages caused by
the wrongful exercise of or failure to
35 exercise a function of the authority unless the
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.
Victorian Legislation and Parliamentary Documents
(4) Despite sub-section (1), sub-section (2) does
not apply to a statutory duty that is imposed
5 as an absolute duty on the public authority to
do or not to do a particular thing.
85. Exercise of function or decision to exercise
does not create duty
In a proceeding, the fact that a public
10 authority exercises or decides to exercise a
function does not of itself indicate that the
authority is under a duty to exercise the
function or that the function should be
exercised in particular circumstances or in a
15 particular way.
86. Supreme Court--limitation of jurisdiction
It is the intention of section 83 to alter or
vary section 85 of the Constitution Act
1975.
20 87. Transitional
(1) This Part extends to negligence arising
before, on or after the commencement day.
(2) Section 84 extends to an act or omission
occurring before, on or after the
25 commencement day.
(3) Despite sub-sections (1) and (2), this Part
does not apply to proceedings commenced in
a court before the commencement day.
(4) In this section "commencement day"
30 means the day on which section 3 of the
Wrongs and Other Acts (Law of
Negligence) Act 2003 comes into
operation.'.
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4. New sections 19A to 19C inserted
After section 19 of the Wrongs Act 1958
Victorian Legislation and Parliamentary Documents
insert--
"19A. Limitation on damages for loss of
5 gratuitous care
In an action under this Part, no damages may
be awarded for a loss of gratuitous care
provided or to be provided by the deceased
to his or her dependants unless the court is
10 satisfied that--
(a) the care--
(i) was provided to the dependants;
and
(ii) was being provided for at least
15 6 hours per week; and
(iii) had been provided for at least
6 consecutive months before the
death, or the injury that caused the
death, to which the damages
20 relate; or
(b) there is a reasonable expectation that,
but for the death, or the injury that
caused the death, of the deceased, the
gratuitous care would have been
25 provided to the dependants--
(i) for at least 6 hours per week; and
(ii) for a period of at least
6 consecutive months.
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19B. Calculation of damages for gratuitous
care
Victorian Legislation and Parliamentary Documents
(1) If, in an action under this Part, the court is
satisfied that the deceased would (if death, or
5 the injury that caused the death, had not
ensued) have provided gratuitous care to his
or her dependants for not less than 40 hours
per week, the amount of damages that may
be awarded for the loss of that care must not
10 exceed--
(a) the amount per week comprising the
amount estimated by the Australian
Statistician as the average weekly total
earnings of all employees in Victoria
15 for--
(i) in respect of the whole or any part
of a quarter occurring between the
date of the death in relation to
which the award is made and the
20 date of the award, being a quarter
for which such an amount has
been estimated by the Australian
Statistician and is, at the date of
the award, available to the court
25 making the award--that quarter;
or
(ii) in respect of the whole or any part
of any other quarter--the most
recent quarter occurring before the
30 date of the award for which such
an amount has been estimated by
the Australian Statistician and is,
at that date, available to the court
making the award; or
35 (b) if the Australian Statistician fails or
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
matters, or both, as may be prescribed.
Victorian Legislation and Parliamentary Documents
(2) If, in an action under this Part, the court is
5 satisfied that the deceased would have
provided gratuitous care to his or her
dependants for less than 40 hours per week,
the amount of damages that may be awarded
for the loss of that care must not exceed the
10 amount calculated at an hourly rate of one-
fortieth of the amount determined in
accordance with sub-section (1)(a) or (b), as
the case requires.
19C. Application of sections 19A and 19B
15 (1) Except as provided by sections 19A and
19B, nothing in those sections affects any
other law relating to damages arising from
loss of gratuitous care.
(2) Sections 19A and 19B do not apply to the
20 following actions for damages--
(a) subject to sub-section (3), an action for
damages in respect of an injury that is a
dust-related condition within the
meaning of the Administration and
25 Probate Act 1958; or
(b) subject to sub-section (3), an action for
damages in respect of an injury
resulting from smoking or other use of
tobacco products, within the meaning
30 of the Tobacco Act 1987, or exposure
to tobacco smoke.
(3) An action for damages referred to in sub-
section (2)(a) or (2)(b) does not include an
action for damages that relates to the
35 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
Victorian Legislation and Parliamentary Documents
insert--
"23AA. Regulations
5 (1) The Governor in Council may make
regulations generally prescribing any matter
or thing required or permitted by this Part to
be prescribed or necessary to be prescribed
to give effect to this Part.
10 (2) The regulations--
(a) may leave any matter to be determined
by the Minister; and
(b) may apply, adopt or incorporate,
wholly or partially or as amended by
15 the regulations, any matter contained in
any document as existing or in force--
(i) from time to time; or
(ii) at a particular time.
23AB. Supreme Court--limitation of jurisdiction
20 It is the intention of sections 19A and 19B to
alter or vary section 85 of the Constitution
Act 1975.
23AC. Transitional for gratuitous care
(1) Sections 19A and 19B extend to an award of
25 damages that relates to a death occurring
before, on or after the commencement of
section 4 of the Wrongs and Other Acts
(Law of Negligence) Act 2003.
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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
Victorian Legislation and Parliamentary Documents
the commencement of section 4 of the
5 Wrongs and Other Acts (Law of
Negligence) Act 2003.".
6. Contribution--transitional
After section 24(4) of the Wrongs Act 1958
insert--
10 "(5) For the removal of doubt, if an action (the
existing action) was commenced in a court
against the first-mentioned person referred to
in sub-section (4) before 1 October 2003, the
period referred to in sub-section (4)(a)(i) is
15 to be taken to be the period within which the
existing action might have been brought at
the time the existing action was brought.".
7. Contributory negligence
(1) In section 26(1)(a) of the Wrongs Act 1958
20 before "a claim" insert "except as provided in
section 63,".
(2) At the end of section 26 of the Wrongs Act 1958
insert--
"Note: Division 7 of Part X also contains provisions relating
25 to contributory negligence.".
8. Definition
In section 28B of the Wrongs Act 1958 insert the
following definition--
' "dependants" in relation to a claimant, means
30 any persons who are wholly, mainly or in
part dependent on the claimant at the time of
the injury;'.
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9. New section 28HA inserted
After section 28H of the Wrongs Act 1958
Victorian Legislation and Parliamentary Documents
insert--
"28HA. Tariffs for damages for non-economic loss
5 (1) In determining damages for non-economic
loss, a court may refer to earlier decisions of
that or other courts for the purpose of
establishing the appropriate award in the
proceedings.
10 (2) For that purpose, the parties to the
proceedings or their counsel may bring the
court's attention to awards for damages for
non-economic loss in those earlier
proceedings.
15 (3) This section does not alter the rules for the
determination of other damages.".
10. New sections 28ID to 28IF inserted
After section 28IC of the Wrongs Act 1958
insert--
20 "28ID. Limitation on damages for loss of capacity
to provide care for others
No damages may be awarded to a claimant
for any loss of the claimant's capacity to
provide gratuitous care for others unless the
25 court is satisfied that--
(a) the care--
(i) was provided to the claimant's
dependants; and
(ii) was being provided for at least
30 6 hours per week; and
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(iii) had been provided for at least
6 consecutive months before the
injury to which the damages
Victorian Legislation and Parliamentary Documents
relate; or
5 (b) there is a reasonable expectation that,
but for the injury to which the damages
relate, the gratuitous care would have
been provided to the claimant's
dependants--
10 (i) for at least 6 hours per week; and
(ii) for a period of at least
6 consecutive months.
28IE. Calculation of damages for gratuitous
care
15 (1) If the court is satisfied that a claimant would
have provided gratuitous care to his or her
dependants for not less than 40 hours per
week, the amount of damages that may be
awarded to the claimant for any loss of the
20 claimant's capacity to provide that care must
not exceed--
(a) the amount per week comprising the
amount estimated by the Australian
Statistician as the average weekly total
25 earnings of all employees in Victoria
for--
(i) in respect of the whole or any part
of a quarter occurring between the
date of the injury in relation to
30 which the award is made and the
date of the award, being a quarter
for which such an amount has
been estimated by the Australian
Statistician and is, at the date of
35 the award, available to the court
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making the award--that quarter;
or
Victorian Legislation and Parliamentary Documents
(ii) in respect of the whole or any part
of any other quarter--the most
5 recent quarter occurring before the
date of the award for which such
an amount has been estimated by
the Australian Statistician and is,
at that date, available to the court
10 making the award; or
(b) if the Australian Statistician fails or
ceases to estimate the amount referred
to in paragraph (a), the prescribed
amount or the amount determined in
15 such manner or by reference to such
matters, or both, as may be prescribed.
(2) If the court is satisfied that a claimant would
have provided gratuitous care to his or her
dependants for less than 40 hours per week,
20 the amount of damages that may be awarded
to a claimant for the loss of the claimant's
capacity to provide that care must not exceed
the amount calculated at an hourly rate of
one-fortieth of the amount determined in
25 accordance with sub-section (1)(a) or (b), as
the case requires.
28IF. Application of sections 28ID and 28IE
(1) Except as provided by sections 28ID and
28IE, nothing in those sections affects any
30 other law relating to damages arising from a
loss of capacity to provide gratuitous care.
(2) Sections 28ID and 28IE do not apply to the
following actions for damages--
(a) subject to sub-section (3), an action for
35 damages in respect of an injury that is a
dust-related condition within the
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meaning of the Administration and
Probate Act 1958; or
Victorian Legislation and Parliamentary Documents
(b) subject to sub-section (3), an action for
damages in respect of an injury
5 resulting from smoking or other use of
tobacco products, within the meaning
of the Tobacco Act 1987, or exposure
to tobacco smoke.
(3) An action for damages referred to in sub-
10 section (2)(a) or (2)(b) does not include an
action for damages that relates to the
provision of or the failure to provide a health
service.".
11. Supreme Court--limitation of jurisdiction
15 After section 28J(2) of the Wrongs Act 1958
insert--
"(3) It is the intention of section 28D (as affected
by the amendments made to this Part by
section 10 of the Wrongs and Other Acts
20 (Law of Negligence) Act 2003) to alter or
vary section 85 of the Constitution Act
1975.".
12. New sections 28LAB and 28LAC inserted
After section 28LA of the Wrongs Act 1958
25 insert--
"28LAB. Transitional for tariffs for damages for
non-economic loss
Despite section 28L(1), section 28HA does
not apply to an award of damages in
30 proceedings commenced in a court before
the commencement of section 9 of the
Wrongs and Other Acts (Law of
Negligence) Act 2003.
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28LAC. Transitional for gratuitous care
Despite section 28L(1), sections 28ID and
Victorian Legislation and Parliamentary Documents
28IE do not apply to an award of damages in
proceedings commenced in a court before
5 the commencement of section 10 of the
Wrongs and Other Acts (Law of
Negligence) Act 2003.".
13. Definitions
(1) In section 28LB of the Wrongs Act 1958 in the
10 definition of "certificate of assessment" after
"section 28LN" insert "or 28LNA".
(2) In section 28LB of the Wrongs Act 1958 insert
the following definition--
' "impairment" means permanent impairment;'.
15 (3) In section 28LB of the Wrongs Act 1958 for the
definition of "medical question" substitute--
' "medical question" in relation to a claim for
damages, means a question as to whether the
degree of impairment resulting from injury
20 to the claimant alleged in the claim satisfies
the threshold level;'.
14. What is significant injury?
(1) After section 28LF(1)(a) of the Wrongs Act 1958
insert--
25 "(aa) a certificate of assessment has been issued
under section 28LNA in respect of the
injury, unless a Medical Panel has made a
determination as to the threshold level under
Division 5; or".
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(2) After section 28LF(1)(c) of the Wrongs Act 1958
insert--
Victorian Legislation and Parliamentary Documents
"(ca) the injury is psychological or psychiatric
injury arising from the loss of a child due to
5 an injury to the mother or the foetus or the
child before, during or immediately after the
birth; or".
(3) After section 28LF(2)(a) of the Wrongs Act 1958
insert--
10 "(aa) a certificate of assessment has been issued
under section 28LNA in respect of the
injury, unless a Medical Panel has made a
determination as to the threshold level under
Division 5; or".
15 (4) After section 28LF(3)(a) of the Wrongs Act 1958
insert--
"(aa) the injury is deemed under section
28LZG(10) or 28LZGA(4) to be significant
injury; or".
20 15. How is the degree of impairment to be assessed?
(1) In section 28LH of the Wrongs Act 1958 before
"impairment" insert "degree of".
(2) At the end of section 28LH of the Wrongs Act
1958 insert--
25 "(2) Nothing in sub-section (1) prevents an
assessment being made in respect of a degree
of impairment of a person even if not all of
the injuries to the person have stabilised.".
16. Certificate of assessment
30 (1) In section 28LN(1) of the Wrongs Act 1958 for
"An approved" substitute "Subject to section
28LNA and this section, an approved".
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(2) After section 28LN(2) of the Wrongs Act 1958
insert--
Victorian Legislation and Parliamentary Documents
"(3) If not all the injuries to a person have
stabilised, a certificate of assessment can
5 only be provided under this section in respect
of the person if the injuries that have
stabilised are sufficient to determine a degree
of impairment that satisfies the threshold
level.".
10 17. New section 28LNA inserted
After section 28LN of the Wrongs Act 1958
insert--
"28LNA. Certificate where injury not stabilised
(1) This section applies if, after making an
15 assessment of degree of impairment under
this Part, an approved medical practitioner is
unable to determine the degree of
impairment because the injury has not
stabilised.
20 (2) If, at the end of 6 months after that first
assessment, an approved medical practitioner
is unable to determine the degree of
impairment but is satisfied that the degree of
impairment resulting from the injury will
25 satisfy the threshold level once the injury has
stabilised, that approved medical practitioner
may issue a certificate of assessment under
this section.
(3) The certificate of assessment must state that
30 the approved medical practitioner is unable
to determine the degree of impairment but is
satisfied that the degree of impairment
resulting from the injury will satisfy the
threshold level once the injury has
35 stabilised.".
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s. 18
18. Agreement to waive assessment
(1) After section 28LO(1) of the Wrongs Act 1958
Victorian Legislation and Parliamentary Documents
insert--
"(1A) A request under sub-section (1) must be in
5 the prescribed form (if any) and include the
prescribed information (if any).".
(2) In section 28LO(2) and 28LO(4) of the Wrongs
Act 1958 for "30 days" substitute "60 days".
(3) In section 28LO(3)(c) of the Wrongs Act 1958
10 for "contained in the notice of claim" substitute
"contained in the request".
(4) After section 28LO(4) of the Wrongs Act 1958
insert--
"(5) Information prescribed for the purposes of
15 sub-section (1A) may include information
relating to--
(a) the identity of the claimant;
(b) the nature of the claim;
(c) the injury;
20 (d) the incident out of which the alleged
injury arose;
(e) any medical practitioner who has
treated the injury.".
19. What if the respondent asks for more information?
25 In sections 28LP(2) and 28LP(3) of the Wrongs
Act 1958 for "30 days" substitute "60 days".
20. Repeal of section 28LS
Section 28LS of the Wrongs Act 1958 is
repealed.
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s. 21
21. Information to be provided to respondent
At the end of section 28LT of the Wrongs Act
Victorian Legislation and Parliamentary Documents
1958 insert--
"(2) The copy of the certificate of assessment
5 must be accompanied by the prescribed
information (if any) in the prescribed form
(if any) unless the information has already
been provided to the respondent under
section 28LO.
10 (3) The information prescribed for the purposes
of sub-section (2) may include information
relating to--
(a) the identity of the claimant;
(b) the nature of the claim;
15 (c) the injury;
(d) the incident out of which the alleged
injury arose;
(e) any medical practitioner who has
treated the injury.".
20 22. Limitation period suspended
In section 28LV of the Wrongs Act 1958--
(a) in paragraph (a) after "section 28LW" insert
", 28LWA or 28LWB";
(b) in paragraph (b) for "or 28LZA" substitute
25 ", 28LWA, 28LWB, 28LZA or 28LZGA";
(c) in paragraphs (c) and (d) for "opinion"
(wherever occurring) substitute
"determination".
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Act No.
Part 2--Amendments to Wrongs Act 1958
s. 23
23. New section 28LW substituted and sections 28LWA
to 28LWE inserted
Victorian Legislation and Parliamentary Documents
For section 28LW of the Wrongs Act 1958
substitute--
5 "28LW. Response to medical assessment
(1) The respondent on whom a copy of a
certificate of assessment is served must
respond in writing to the claimant within
60 days after receiving the certificate and the
10 required information under section 28LT.
(2) The response to the claimant must--
(a) state that the respondent is a proper
respondent to the claim and state that
the respondent accepts the assessment
15 for the purposes of this Part; or
(b) state that the respondent is a proper
respondent to the claim and advise the
claimant that the respondent intends to
refer or has referred a medical question
20 in relation to the assessment to a
Medical Panel for determination under
this Part; or
(c) if the respondent is unable to decide, on
the information provided with the
25 certificate of assessment, whether the
respondent is a proper respondent to the
claim, advise the claimant of the further
information the respondent reasonably
needs to decide whether the respondent
30 is a proper respondent to the claim; or
(d) state that the respondent believes that
the respondent is not a proper
respondent to the claim, give the
reasons for the belief and give any
35 information that may help the claimant
to identify the proper respondent.
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s. 23
(3) The respondent must state that the
respondent is a proper respondent to a claim
if the respondent has already stated under
Victorian Legislation and Parliamentary Documents
section 28LO or 28LP that the respondent is
5 a proper respondent to the claim.
(4) If the respondent fails to respond in writing
under this section within the 60 days, the
respondent is deemed to have accepted the
assessment.
10 28LWA. What if the respondent asks for more
information?
(1) If, under section 28LW(2)(c), a respondent
advises a claimant that specified further
information is needed, the claimant must
15 give the respondent the information the
respondent reasonably needs to decide
whether the respondent is a proper
respondent to the claim.
(2) The respondent must respond in the manner
20 set out in section 28LW(2)(a), (b) or (d)
within 60 days after receiving the
information.
(3) If the respondent fails to respond in writing
under this section within the 60 days, the
25 respondent is deemed to have accepted the
assessment.
28LWB. What if the respondent disputes
responsibility?
(1) If a respondent responds in accordance with
30 section 28LW(2)(d), the claimant must give
written notice to the respondent, within
14 days after receiving the response, that
either--
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s. 23
(a) on the information available to the
claimant, the claimant accepts that the
respondent is not a proper respondent to
Victorian Legislation and Parliamentary Documents
the claim; or
5 (b) the claimant considers that the
respondent is a proper respondent to the
claim and requires the respondent to
respond to the notice.
(2) The respondent must respond in writing to a
10 notice under sub-section (1)(b) within
14 days after receiving the notice.
(3) The response under this section must--
(a) state that the respondent is a proper
respondent to the claim and state that
15 the respondent accepts the assessment
for the purposes of this Part; or
(b) state that the respondent is a proper
respondent to the claim and advise the
claimant that the respondent has
20 referred or intends to refer a medical
question in relation to the assessment to
a Medical Panel for determination
under this Part.
(4) If the respondent fails to respond within the
25 14 days, the respondent is deemed to have
accepted the assessment.
28LWC. Can a respondent bind any other
respondent?
An acceptance under this Division by a
30 respondent to a claim of an assessment does
not bind any other respondent.
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s. 23
28LWD. Statement not admission of liability
A statement under this Division that a
Victorian Legislation and Parliamentary Documents
respondent is a proper respondent to a claim
is not an admission of liability in respect of
5 the claim.
28LWE. Referral of medical question to Medical
Panel
(1) The respondent on whom a copy of the
certificate of assessment is served may refer
10 a medical question in relation to the
assessment to a Medical Panel for
determination under this Part--
(a) within 60 days after receiving the
certificate and the required information
15 under section 28LT; or
(b) within 60 days after receiving the
information provided under section
28LWA; or
(c) within 14 days after receiving the
20 notice under section 28LWB.
(2) The respondent may not refer a medical
question in relation to the assessment to a
Medical Panel if the respondent has accepted
the assessment or is deemed to have accepted
25 the assessment under this Division.
(3) If the respondent advises the claimant under
section 28LW, 28LWA or 28LWB that the
respondent intends to refer a medical
question in relation to the assessment to a
30 Medical Panel and does not refer the
question within the required time under this
section, the respondent is deemed to have
accepted the assessment under this Division
at the expiration of that required time.".
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Act No.
Part 2--Amendments to Wrongs Act 1958
s. 24
24. References to opinion
In sections 28LX, 28LZF(a) and 28LZM(3) of the
Victorian Legislation and Parliamentary Documents
Wrongs Act 1958 for "opinion" (wherever
occurring) substitute "determination".
5 25. Respondent to pay fees and costs of referral
In section 28LX of the Wrongs Act 1958 for
"costs of" (where first occurring) substitute "fees
and costs payable in accordance with section
28LXA for".
10 26. New section 28LXA inserted
After section 28LX of the Wrongs Act 1958
insert--
"28LXA. Administration
(1) The Minister, on the recommendation of the
15 Convenor, may, by notice published in the
Government Gazette, fix scales of fees and
costs for referrals of medical questions under
this Part.
(2) All fees and costs payable by the respondent
20 in respect of a referral to a Medical Panel
under section 28LX must be paid to the
Convenor.
(3) The Convenor may recover any fees or costs
payable under section 28LX in any court of
25 competent jurisdiction as a debt due to the
Crown.
(4) The Convenor may establish a bank account
or bank accounts for the purposes of this
Part.
30 (5) The Convenor must pay any amount paid to
the Convenor under this section into the bank
account or accounts established under sub-
section (4).
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s. 26
(6) The Convenor may pay out of a bank
account established under sub-section (4)
any amount necessary--
Victorian Legislation and Parliamentary Documents
(a) to reimburse the Victorian WorkCover
5 Authority for the remuneration
(including allowances) of members of
Medical Panels to the extent that is
applicable to their functions under this
Part;
10 (b) to pay the Victorian WorkCover
Authority or any other person for the
provision of administrative services
under this Part;
(c) to pay any other costs (including
15 administrative costs) relating to a
referral of a medical question for
determination under this Part.
(7) The Convenor may engage any person to
assist the Convenor in carrying out any
20 function under this Part.
(8) The Convenor may enter into arrangements
with the Victorian WorkCover Authority or
with any other person or body for the
provision of administrative services to the
25 Convenor for the purposes of this Part.
(9) The Minister must cause a notice under sub-
section (1) to be laid before each House of
Parliament within 5 sitting days of that
House after it is published in the
30 Government Gazette.
(10) Sections 23, 24 and 25 of the Subordinate
Legislation Act 1994 apply to a notice under
sub-section (1) as if it were a statutory rule
within the meaning of that Act.
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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
Victorian Legislation and Parliamentary Documents
with the requirements of section 23 of the
5 Subordinate Legislation Act 1994.".
27. Procedure of Medical Panel
For sections 28LZ(3) and 28LZ(4) of the Wrongs
Act 1958 substitute--
"(3) The Minister, after consultation with the
10 Minister administering Part III of the
Accident Compensation Act 1985, may for
the purposes of--
(a) ensuring procedural fairness in the
procedures of Medical Panels under
15 this Part; and
(b) facilitating the proper administration of
the Medical Panels under this Part--
issue guidelines as to the procedures of
Medical Panels under this Part.
20 (4) The Convenor may give directions as to the
procedures of Medical Panels under this Part
but must not give directions inconsistent
with any guidelines issued by the Minister
under this Part.
25 (5) A Medical Panel must comply with--
(a) any relevant guidelines as to the
procedures of Medical Panels issued
under sub-section (3); and
(b) any directions given by the Convenor
30 under sub-section (4).".
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Act No.
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s. 28
28. Respondent to provide information to Medical Panel
(1) In section 28LZA(1)(a) of the Wrongs Act 1958
Victorian Legislation and Parliamentary Documents
after "in writing" insert "and in the prescribed
form (if any)".
5 (2) For section 28LZA(2) of the Wrongs Act 1958
substitute--
"(2) The Convenor may, in writing, request the
respondent to provide to the Medical Panel
any specified document or documents of a
10 specified class in the respondent's
possession.
(2A) More than one request may be made under
sub-section (2).
(2B) The respondent must comply with any
15 request under sub-section (2).".
(3) In section 28LZA(3) of the Wrongs Act 1958 for
"required documents under this section"
substitute "documents required under sub-section
(1) or requested under sub-section (2)".
20 (4) For section 28LZA(4) of the Wrongs Act 1958
substitute--
"(4) A respondent is deemed to have accepted the
assessment in the certificate of assessment if
the respondent--
25 (a) fails to provide the Medical Panel with
the information and documents required
under sub-section (1) within 30 days
after being requested in writing to do so
by the Convenor; or
30 (b) fails to provide any documents
requested under sub-section (2) within
30 days after that request.".
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s. 29
29. Request to claimant
At the end of section 28LZC of the Wrongs Act
Victorian Legislation and Parliamentary Documents
1958 insert--
"(2) A request under this section must be made
5 within 30 days after the medical question is
referred to the Medical Panel.".
30. Request to registered health practitioner
At the end of section 28LZE of the Wrongs Act
1958 insert--
10 "(2) A request under this section must be made
within 30 days after the last of the following
to occur--
(a) the date on which the medical question
is referred to the Medical Panel;
15 (b) the date on which the claimant meets
with the Medical Panel under section
28LZC;
(c) the date on which the claimant is given
a medical examination by the Medical
20 Panel or a member of the Panel under
section 28LZC;
(d) the last date on which the Medical
Panel receives any documents
requested under section 28LZC(1)(b).".
25 31. New section 28LZG substituted and section
28LZGA inserted
For section 28LZG of the Wrongs Act 1958
substitute--
"28LZG. Determination of Panel
30 (1) A Medical Panel must not determine the
degree of impairment of a person unless it
has made an assessment of the degree of
impairment in accordance with Division 3.
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s. 31
(2) After making the assessment, the Medical
Panel must give the claimant and the
respondent--
Victorian Legislation and Parliamentary Documents
(a) its determination of the medical
5 question in accordance with sub-
section (4); or
(b) its certificate, in accordance with sub-
section (5), that it is unable to
determine the medical question but that
10 it is satisfied that the degree of
impairment will satisfy the threshold
level when the injury has stabilised; or
(c) its certificate that it is unable to
determine the medical question and a
15 statement of the time fixed for further
assessment of the person under sub-
section (6).
(3) The Medical Panel must give the
determination or certificate--
20 (a) within 30 days after the last of the
following to occur--
(i) the last date on which the claimant
complies with a request under
section 28LZC;
25 (ii) the last date on which a registered
health practitioner complies with a
request under section 28LZE or if
a request is made to more than one
registered health practitioner, the
30 last date on which the last of the
registered health practitioners to
comply, complies with the
request; or
(b) within such longer period as is agreed
35 by the claimant and the respondent.
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s. 31
(4) If, after making the assessment, the Medical
Panel determines the degree of impairment,
the determination of the medical question
Victorian Legislation and Parliamentary Documents
must state whether the degree of impairment
5 resulting from the injury satisfies the
threshold level but must not state the specific
degree of impairment.
(5) If, after making an assessment, the Medical
Panel is unable to determine the medical
10 question because an injury has not stabilised,
but the Medical Panel is satisfied that the
degree of impairment resulting from injury
will satisfy the threshold level once the
injury has stabilised, the Medical Panel may
15 certify in writing to that effect.
(6) If, after making an assessment, the Medical
Panel is unable to determine the medical
question because an injury has not stabilised
and sub-section (5) does not apply, the
20 Medical Panel must in writing--
(a) certify that it is unable to determine the
medical question; and
(b) fix a time (not being later than
12 months after the first assessment) for
25 a further assessment of the degree of
impairment of the person to be made
under this section.
(7) The time fixed under sub-section (6) must be
the earliest time by which the Medical Panel
30 considers that the injury will have stabilised.
(8) More than one further assessment may be
made under this section but each further
assessment must be made within the period
of 12 months following the first assessment.
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s. 32
(9) A determination of the Medical Panel under
sub-section (4) must be given in writing and
be certified by the Medical Panel.
Victorian Legislation and Parliamentary Documents
(10) If the Medical Panel gives a certificate under
5 sub-section (5) in relation to an injury, the
injury is deemed to be significant injury.
28LZGA. Further assessment
(1) If a Medical Panel fixes a time for further
assessment under section 28LZG, the
10 respondent may by notice in writing to the
Medical Panel and the claimant waive the
requirement for a further assessment.
(2) The notice must be given within 14 days
after the respondent receives the statement of
15 the Medical Panel.
(3) If the respondent waives the requirement for
a further assessment under section 28LZG,
the respondent is deemed to have accepted,
for the purposes of this Part, the assessment
20 in the certificate of assessment served under
section 28LT.
(4) If a Medical Panel fixes a time for further
assessment under section 28LZG, and at the
end of 12 months after the first assessment,
25 the Medical Panel certifies in writing that it
is still unable to determine the medical
question because an injury has not stabilised,
the injury to the person is deemed to be
significant injury.".
30 32. Operation of Panel provisions of Accident
Compensation Act 1985
In section 28LZL of the Wrongs Act 1958 after
"to (6B)," insert "65(8), 65(9),".
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s. 33
33. Provision of assessment information to court
After section 28LZM(4) of the Wrongs Act 1958
Victorian Legislation and Parliamentary Documents
insert--
"(5) If the injury is deemed under section
5 28LZG(10) to be significant injury, the
claimant must also file in the court a
statement to that effect, together with the
certificate of the Medical Panel under section
28LZG(5).
10 (6) If the injury is deemed under section
28LZGA(4) to be significant injury, the
claimant must also file in the court a
statement to that effect, together with the
certificate of the Medical Panel under that
15 sub-section.".
34. Regulations
After section 28LZP(2)(a) of the Wrongs Act
1958 insert--
"(ab) may prescribe forms for use under this Part;
20 and".
35. Transitional
After section 28LZQ(3) of the Wrongs Act 1958
insert--
"(4) Despite the amendment of section 28LF by
25 section 14(2) of the Wrongs and Other
Acts (Law of Negligence) Act 2003, section
28LF continues to apply to any proceedings
in which damages were awarded before the
date on which that Act received the Royal
30 Assent as if section 28LF had not been
amended by section 14(2) of that Act.".
__________________
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
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
Victorian Legislation and Parliamentary Documents
36. Definition
See: In section 3 of the Wrongs and Limitation of
Act No.
5 Actions Acts (Insurance Reform) Act 2003, in
60/2003.
LawToday: proposed section 24AE, the definition of
www.dms.
"economic loss" is repealed.
dpc.vic.
gov.au
37. Application of Part
In section 3 of the Wrongs and Limitation of
10 Actions Acts (Insurance Reform) Act 2003, in
proposed section 24AF(1) for "in contract, tort"
substitute "in tort, in contract, under statute".
38. Liability for contributory negligence
In section 3 of the Wrongs and Limitation of
15 Actions Acts (Insurance Reform) Act 2003, in
proposed section 24AN for "section 26"
substitute "Part V or Division 7 of Part X".
__________________
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
Part 4--Amendments to Victorian Managed Insurance Authority Act 1996
s. 39
PART 4--AMENDMENTS TO VICTORIAN MANAGED
INSURANCE AUTHORITY ACT 1996
Victorian Legislation and Parliamentary Documents
39. Functions of Authority
See:
After section 6(d) of the Victorian Managed Act No.
5 Insurance Authority Act 1996 insert-- 11/1996.
Reprint No. 2
"(da) to provide insurance or indemnities to as at
20 September
persons or bodies in accordance with 2001.
section 25A;". LawToday:
www.dms.
dpc.vic.
gov.au
40. New section 25A inserted
10 After section 25 of the Victorian Managed
Insurance Authority Act 1996 insert--
"25A. Provision of insurance and indemnities for
other persons or bodies
(1) The Minister may direct the Authority to
15 provide insurance or an indemnity to--
(a) a person or body specified in the
direction; or
(b) persons or bodies in a class of person or
body specified in the direction.
20 (2) The Minister must consult with the Authority
before giving a direction under this section.
(3) A direction under this section must be in
writing and may specify--
(a) the risks to be insured or indemnified;
25 (b) the maximum value of liability to be
covered;
(c) the term (not exceeding one year) for
which the insurance or indemnity is to
be provided;
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s. 40
(d) any other terms and conditions for the
provision of the insurance or indemnity
that the Minister thinks fit.
Victorian Legislation and Parliamentary Documents
(4) Subject to sub-section (6), the Authority
5 must comply with a direction under this
section.
(5) The Authority may by notice in writing
require any person or body to whom or
which insurance or an indemnity is to be
10 provided under this section to pay a premium
for that insurance or indemnity.
(6) The Authority may refuse to insure or
indemnify a person or body under this
section if the relevant premium is not paid
15 within the time (being not less than 30 days)
specified in the notice under sub-section (5).
(7) As soon as possible after giving a direction
under this section to the Authority, the
Minister must cause a copy of the direction
20 to be published in the Government Gazette.
(8) The Authority must include in its annual
report under the Financial Management
Act 1994 a copy of each direction given to it
by the Minister under this section during the
25 year to which the report relates.".
__________________
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
Part 5--Amendments to Building Act 1993
s. 41
PART 5--AMENDMENTS TO BUILDING ACT 1993
Victorian Legislation and Parliamentary Documents
41. Definition of required insurance
See:
In section 3(1) of the Building Act 1993 for the Act No.
definition of "required insurance" substitute-- 126/1993.
Reprint No. 5
5 ' "required insurance" means the insurance as at
31 May 2003
required by order under section 135 and, in and
the case of insurance to which amending Act
Nos 26/2001
section 137AA applies, complying with and 60/2003
section 137AA;'. LawToday:
www.dms.
dpc.vic.
gov.au
10 42. New section 137AA inserted
After section 137 of the Building Act 1993
insert--
'137AA. Insurance for domestic building work to
be provided by designated insurers
15 (1) If an order under section 135 requires a
builder to be covered by insurance relating to
the carrying out of domestic building work
or managing or arranging the carrying out of
domestic building work, the insurance
20 required by the order must be provided by a
designated insurer.
(2) For the purposes of sub-section (1) a
designated insurer is--
(a) a general insurer within the meaning of
25 the Insurance Act 1973 of the
Commonwealth; or
(b) a Lloyd's underwriter within the
meaning of the Insurance Act 1973 of
the Commonwealth authorised under
30 that Act to carry on insurance business
in Australia; or
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
Part 5--Amendments to Building Act 1993
s. 42
(c) an insurer specified by the Minister by
notice under this section.
Victorian Legislation and Parliamentary Documents
(3) The Minister may by notice published in the
Government Gazette specify an insurer for
5 the purposes of this section.
(4) The Minister must not specify an insurer
under sub-section (3) unless the Minister is
satisfied that the insurer has an acceptable
international credit rating and that the insurer
10 does not carry on insurance business in
Australia.
(5) For the purposes of this section an acceptable
international credit rating is a rating that--
(a) is provided by a credit rating agency
15 specified under sub-section (6); and
(b) is equal to or exceeds the rating
specified in relation to that agency
under sub-section (6).
(6) The Minister may by notice published in the
20 Government Gazette--
(a) specify a credit rating agency for the
purposes of this section; and
(b) specify a rating in relation to that
agency.
25 (7) The Minister may by notice published in the
Government Gazette amend or revoke any
notice published under this section.
(8) The Minister must consult with the Minister
for the time being administering the
30 Victorian Managed Insurance Authority
Act 1996 before publishing any notice under
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.
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
Victorian Legislation and Parliamentary Documents
(Law of Negligence) Act 2003.'.
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Wrongs and Other Acts (Law of Negligence) Act 2003
Act No.
Endnotes
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
60
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