Wrongs Amendment Act 2015

Authorised by the Chief Parliamentary Counsel Authorised Version i Wrongs Amendment Act 2015 No. 62 of 2015 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purpose 1 2 Commencement 2 3 Principal Act 2 Part 2—Amendment of Wrongs Act 1958 3 Division 1—Amendment of Part VB 3 4 Definitions for the purposes of Part VB 3 5 Damages for past or future economic loss—maximum for loss of earnings etc. 3 6 Fixing damages for non-economic loss 3 7 Section 28H substituted and new sections 28HAA and 28HAAB inserted 4 8 New section 28ID substituted 6 9 Application of sections 28ID and 28IE 8 10 New sections 28LACA to 28LACC inserted 8 Division 2—Amendment of Part VBA 11 11 Definitions for the purposes of Part VBA 11 12 New section 28LZMA inserted 11 13 New sections 28LZS to 28LZU inserted 12 Part 3—Repeal of amending Act 15 14 Repeal of amending Act 15 ═══════════════ Endnotes 16 1 General information 16 -- 1 of 17 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Wrongs Amendment Act 2015 † No. 62 of 2015 [Assented to 18 November 2015] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purpose The purpose of this Act is to amend the Wrongs Act 1958— (a) to change the method by which the maximum amount of damages for economic loss is calculated; and Victoria -- 2 of 17 -- Part 1—Preliminary Wrongs Amendment Act 2015 No. 62 of 2015 2 Authorised by the Chief Parliamentary Counsel (b) to fix a maximum amount of damages for non-economic loss and to change the method by which that amount is indexed into the future; and (c) to provide for damages for loss of capacity to care for dependants in limited circumstances; and (d) to change the threshold impairment level used for determining whether a person has suffered significant psychiatric or spinal injury; and (e) to confer on courts a power to stay a proceeding to which Part VBA of that Act applies in respect of a claim for damages for non-economic loss in cases where the claimant has not served a certificate of assessment on the respondent. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3 Principal Act In this Act, the Wrongs Act 1958 is called the Principal Act. -- 3 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Wrongs Act 1958 Division 1—Amendment of Part VB 4 Definitions for the purposes of Part VB In section 28B of the Principal Act, for the definition of dependants substitute— "dependants, in relation to a claimant, means— (a) any persons who are wholly, mainly or in part dependent on the claimant at the time that the liability in respect of which the claim is made arises; or (b) any unborn children of the claimant (including unborn children derived by adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time;". 5 Damages for past or future economic loss— maximum for loss of earnings etc. For section 28F(2) of the Principal Act substitute— "(2) The maximum amount of damages that may be awarded for each week of the period of loss of earnings is an amount that is 3 times the amount of average weekly earnings at the date of the award.". 6 Fixing damages for non-economic loss In section 28G of the Principal Act, for "$371 380" substitute "$577 050". -- 4 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 4 Authorised by the Chief Parliamentary Counsel 7 Section 28H substituted and new sections 28HAA and 28HAAB inserted For section 28H of the Principal Act substitute— "28H Indexation of certain amounts—consumer price index The amount specified in section 28G must be varied, in respect of the financial year beginning on 1 July 2016 and each subsequent financial year, in accordance with the formula— C B A × where— A is the amount specified in section 28G or, if that amount has been varied in accordance with this section, that amount as last so varied; B is the all groups consumer price index for Melbourne in original terms for the most recent reference period in the preceding calendar year most recently published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made; C is the all groups consumer price index for Melbourne in original terms for the corresponding reference period one year earlier than the reference period referred to in B published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made. -- 5 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 5 Authorised by the Chief Parliamentary Counsel 28HAA Indexation—no reduction If the operation of section 28H has the effect of reducing the amount specified in section 28G— (a) the variation is taken not to have taken effect, except for the purposes of the application of this section; and (b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year, that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase. 28HAAB Indexation—rounding If it is necessary for the purposes of section 28H to calculate an amount that consists of or includes a fraction of a whole number, the amount is taken to have been calculated in accordance with that section if the calculation is made— (a) if the amount is less than $1000, to the nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. Note The amount specified in section 28G is equivalent to the amount provided by the Workplace Injury Rehabilitation and Compensation Act 2013 for the purposes of section 340(b)(ii) of that Act (limitation on awards of damages for pain and suffering). Sections 28H, 28HAA and 28HAAB have the same effect as the indexation provisions that apply to that amount under the Workplace -- 6 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 6 Authorised by the Chief Parliamentary Counsel Injury Rehabilitation and Compensation Act 2013. The amount, as indexed under that Act, is published annually in the Government Gazette.". 8 New section 28ID substituted For section 28ID of the Principal Act substitute— "28ID Court may award damages for loss of capacity to provide gratuitous care to dependants (1) Despite anything to the contrary at common law, a court may award damages to a claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants. (2) However, a court may only do so if the court is satisfied that— (a) in the case of any dependants of the kind referred to in paragraph (a) of the definition of dependants—the claimant provided the care to those dependants before the time that the liability in respect of which the claim is made arose; and (b) the claimant's dependants were not, or will not be, capable of providing the care themselves because of— (i) their age; or (ii) their physical or mental incapacity; and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the gratuitous care would have been provided to the claimant's dependants— (i) for at least 6 hours per week; and -- 7 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 7 Authorised by the Chief Parliamentary Counsel (ii) for a period of at least 6 consecutive months; and (d) there will be a need for the care to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. (3) In determining the amount of damages (if any) to be awarded to the claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants, a court— (a) may only award damages for that loss in accordance with this section and section 28IE; and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. (4) The claimant may not be awarded damages for any loss of the claimant's capacity to provide gratuitous care to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. (5) A person (whether or not a dependant of the claimant) may not be awarded damages for a loss sustained by the person because of the claimant's loss of capacity to provide gratuitous care if the claimant has previously recovered damages in respect of that loss of capacity. Note Subsections (2) to (5) and section 28IE do not apply to certain actions for damages—see section 28IF.". -- 8 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 8 Authorised by the Chief Parliamentary Counsel 9 Application of sections 28ID and 28IE (1) For the heading to section 28IF of the Principal Act substitute— "Sections 28ID(2) to (5) and 28IE do not apply to certain actions for damages". (2) Section 28IF(1) of the Principal Act is repealed. (3) In section 28IF(2) of the Principal Act, for "Sections 28ID" substitute "Sections 28ID(2) to (5)". 10 New sections 28LACA to 28LACC inserted After section 28LAC of the Principal Act insert— "28LACA Transitionals—Wrongs Amendment Act 2015 (1) Sections 28F and 28G, as amended by the Wrongs Amendment Act 2015, apply to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred. (2) Without limiting subsection (1)— (a) section 28F, as amended by section 5 of the Wrongs Amendment Act 2015, applies to an award of damages in a proceeding that has been commenced before the commencement of section 5 of that Act but has not been finally settled or determined before the commencement of that section; (b) section 28G, as amended by section 6 of the Wrongs Amendment Act 2015, applies to an award of damages in a proceeding that has been commenced before the commencement of section 6 of that Act but has not been finally -- 9 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 9 Authorised by the Chief Parliamentary Counsel settled or determined before the commencement of that section. (3) Sections 28H and 28ID, as substituted by the Wrongs Amendment Act 2015, and sections 28HAA and 28HAAB, apply to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred. (4) Without limiting subsection (3)— (a) section 28H, as substituted by section 7 of the Wrongs Amendment Act 2015, and sections 28HAA and 28HAAB, apply to an award of damages in a proceeding that has been commenced before the commencement of section 7 of that Act but has not been finally settled or determined before the commencement of that section; (b) section 28ID, as substituted by section 8 of the Wrongs Amendment Act 2015, applies to a claim in a proceeding that has been commenced before the commencement of section 8 of that Act but has not been finally settled or determined before the commencement of that section. 28LACB Power to resolve transitional difficulties in proceeding—Wrongs Amendment Act 2015 (1) If any difficulty arises because of the operation of the Wrongs Amendment Act 2015 in a proceeding for an award of damages to which this Part applies, a court may make any order it considers appropriate to resolve the difficulty. -- 10 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 10 Authorised by the Chief Parliamentary Counsel (2) An order made under subsection (1)— (a) may be made on application of a party to the proceeding or on the court's own motion; and (b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006). 28LACC Regulations dealing with transitional matters—Wrongs Amendment Act 2015 (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Division 1 of Part 2 of the Wrongs Amendment Act 2015, including any repeals and amendments made by that Division. (2) Regulations made under this section may— (a) have a retrospective effect to a day on and after the date that the Wrongs Amendment Act 2015 receives the Royal Assent; and (b) be of limited or general application; and (c) differ according to differences in time, place or circumstances; and (d) leave any matter or thing to be decided by a specified person or specified class of persons; and (e) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. -- 11 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 11 Authorised by the Chief Parliamentary Counsel (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than this Part or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument. (4) This section is repealed on the second anniversary of the day on which it comes into operation.". Division 2—Amendment of Part VBA 11 Definitions for the purposes of Part VBA In section 28LB of the Principal Act, for the definition of threshold level substitute— "threshold level means— (a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent; (b) in the case of psychiatric injury, impairment of 10 per cent or more; (c) in the case of spinal injury, impairment of 5 per cent or more.". 12 New section 28LZMA inserted After section 28LZM of the Principal Act insert— "28LZMA Power of court to stay proceeding until certificate of assessment and other information is served A court may, in any proceeding in respect of a claim for the recovery of damages for non-economic loss in respect of an injury to a claimant to which this Part applies, by order stay the proceeding until the claimant -- 12 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 12 Authorised by the Chief Parliamentary Counsel has, in accordance with this Part, served on the respondent— (a) the certificate of assessment; and (b) any other information that under this Part is required to accompany the certificate when it is served.". 13 New sections 28LZS to 28LZU inserted After section 28LZR of the Principal Act insert— "28LZS Transitionals—Wrongs Amendment Act 2015 (1) The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss to which this Part applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred. (2) Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for non-economic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section. (3) Section 28LZMA, as inserted by section 12 of the Wrongs Amendment Act 2015, applies to a proceeding for a claim for the recovery of damages for non-economic loss -- 13 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 13 Authorised by the Chief Parliamentary Counsel to which this Part applies that has been commenced before the commencement of section 12 of that Act but has not been finally settled or determined before the commencement of that section. 28LZT Power to resolve transitional difficulties in proceeding—Wrongs Amendment Act 2015 (1) If any difficulty arises because of the operation of the Wrongs Amendment Act 2015 in a proceeding for a claim for damages for non-economic loss in respect of an injury to the claimant to which this Part applies, a court may make any order it considers appropriate to resolve the difficulty. (2) An order made under subsection (1)— (a) may be made on application of a party to the proceeding or on the court's own motion; and (b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006). 28LZU Regulations dealing with transitional matters—Wrongs Amendment Act 2015 (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Division 2 of Part 2 of the Wrongs Amendment Act 2015, including any repeals and amendments made by that Division. -- 14 of 17 -- Part 2—Amendment of Wrongs Act 1958 Wrongs Amendment Act 2015 No. 62 of 2015 14 Authorised by the Chief Parliamentary Counsel (2) Regulations made under this section may— (a) have a retrospective effect to a day on and after the date that the Wrongs Amendment Act 2015 receives the Royal Assent; and (b) be of limited or general application; and (c) differ according to differences in time, place or circumstances; and (d) leave any matter or thing to be decided by a specified person or specified class of persons; and (e) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than this Part or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument. (4) This section is repealed on the second anniversary of the day on which it comes into operation.". -- 15 of 17 -- Part 3—Repeal of amending Act Wrongs Amendment Act 2015 No. 62 of 2015 15 Authorised by the Chief Parliamentary Counsel Part 3—Repeal of amending Act 14 Repeal of amending Act This Act is repealed on the first anniversary of its commencement. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 16 of 17 -- Endnotes Wrongs Amendment Act 2015 No. 62 of 2015 16 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 16 September 2015 Legislative Council: 8 October 2015 The long title for the Bill for this Act was "A Bill for an Act to amend the Wrongs Act 1958 in relation to maximum amounts of damages for economic loss and non-economic loss, damages for loss of capacity to care for dependants in limited circumstances, threshold impairment levels for psychiatric and spinal injury, certain proceedings to which Part VBA of that Act applies and for other purposes." -- 17 of 17 --