Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003
i
Wrongs and Limitation of Actions Acts (Insurance
Reform) Act 2003
Act No. 60/2003
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2—AMENDMENTS TO WRONGS ACT 1958 3
3. New Part IVAA inserted 3
PART IVAA—PROPORTIONATE LIABILITY 3
24AE. Definitions 3
24AF. Application of Part 4
24AG. What claims are excluded from this Part? 5
24AH. Who is a concurrent wrongdoer? 6
24AI. Proportionate liability for apportionable claims 6
24AJ. Contribution not recoverable from defendant 7
24AK. Subsequent actions 8
24AL. Joining non-party concurrent wrongdoer in the action 8
24AM. What if a defendant is fraudulent? 9
24AN. Liability for contributory negligence not affected 9
24AO. Effect of Part IV 9
24AP. Part not to affect other liability 9
24AQ. Supreme Court—limitation of jurisdiction 10
24AR. Regulations 10
24AS. Transitional 10
4. Insertion of Part VBA 11
PART VBA—THRESHOLDS IN RELATION TO
RECOVERY OF DAMAGES FOR NON-ECONOMIC
LOSS 11
Division 1—Introductory 11
28LB. Definitions 11
28LC. Application of Part 14
28LD. This Part is substantive law 15
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Division 2—Restriction on Recovery of Damages for Non-
Economic Loss 15
28LE. Restriction on recovery of damages for non-economic
loss 15
28LF. What is significant injury? 15
Division 3—Assessment of Impairment 16
28LG. Who can assess impairment? 16
28LH. How is the degree of impairment to be assessed? 17
28LI. Assessment of psychiatric impairment 17
28LJ. Regard not to be had to secondary psychiatric or
psychological impairment 17
28LK. Assessment of hearing impairment 18
28LL. Assessment in relation to injuries arising out of the same
incident 18
28LM. Prescribed methods for assessment 19
28LN. Certificate of assessment 19
Division 4—Procedure for Claim for Non-Economic Loss 20
28LO. Agreement to waive assessment of impairment 20
28LP. What if the respondent asks for more information? 21
28LQ. What if the respondent disputes responsibility? 21
28LR. Can a respondent bind any other respondent? 22
28LS. Statement not admission of liability 22
28LT. Copy of certificate of assessment to be served on
respondent 23
28LU. Multiple respondents 23
28LV. Limitation period suspended 24
28LW. Response to medical assessment 24
28LX. Respondent to pay costs of referral 25
Division 5—Procedure of Medical Panel 25
28LY. Application 25
28LZ. Procedure of Medical Panel 25
28LZA. Respondent must provide information to Medical Panel 26
28LZB. What if there is more than one referral in relation to an
assessment? 27
28LZC. What can a Medical Panel ask a claimant to do? 27
28LZD. Attendance before Medical Panel to be private 28
28LZE. Medical Panel can ask a registered health practitioner to
attend 28
28LZF. Protection of information given to Medical Panel 28
28LZG. Opinions 29
28LZH. Effect of determination as to threshold level 29
28LZI. Limitations on appeal in relation to assessments and
determinations 30
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28LZJ. Treating medical practitioner not to be on Medical Panel 30
28LZK. Validity of acts or decisions 30
28LZL. Operation of Panel provisions of the Accident
Compensation Act 30
Division 6—Proceedings on Claim 31
28LZM. Provision of assessment information to court 31
28LZN. Alternative procedure for special cases 32
Division 7—General 32
28LZO. Supreme Court—limitation of jurisdiction 32
28LZP. Regulations 33
28LZQ. Transitional 34
5. New definitions 34
6. New sections 28IA, 28IB and 28IC inserted 35
28IA. Limitation on damages for gratuitous attendant care 35
28IB. Calculation of damages 35
28IC. Other laws not to be affected 37
7. Supreme Court—limitation of jurisdiction 37
8. Transitional 37
9. New section 28LA inserted 37
28LA. Transitional for gratuitous attendant care services 37
10. Amendment of section 20 38
PART 3—AMENDMENTS TO LIMITATION OF ACTIONS ACT
1958 39
11. Amendment of section 5 39
12. Amendment of section 23 39
13. Amendment of section 23A 39
14. New Part IIA inserted 40
PART IIA—PERSONAL INJURY ACTIONS 40
Division 1—Introductory 40
27A. Interpretation 40
27B. Application 41
Division 2—Limitation Period for Personal Injury Actions 42
27C. Application of Division 42
27D. Limitation period for personal injury actions—general 42
27E. Limitation period for personal injury actions—persons
under a disability 43
27F. Date cause of action is discoverable 43
27G. Application to survivor actions 44
27H. Application to Part III Wrongs Act actions 45
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27I. Special limitation period for minors injured by close
relatives or close associates 45
27J. Effect of legal incapacity on limitation period 46
Division 3—Extension of Limitation Period for Personal
Injury Actions 48
27K. Extension of limitation periods 48
27L. Matters to be considered in determining applications for
extension of limitation period 49
27M. Effect of expiry of limitation period prior to extension 50
Division 4—Transitional 51
27N. Transitional 51
15. Amendment of section 33 51
16. New section 38A inserted 52
38A. Supreme Court—limitation of jurisdiction 52
PART 4—AMENDMENTS TO OTHER ACTS 53
17. Repeal of sections 131 to 133 of the Building Act 1993 53
18. New section 267 inserted in Building Act 1993 53
267. Transitional—proportionate liability 53
19. Amendments to Accident Compensation Act 1985 53
20. Amendments to Fair Trading Act 1999 54
═══════════════
ENDNOTES 55
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1
Wrongs and Limitation of Actions Acts
(Insurance Reform) Act 2003 †
[Assented to 16 June 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—
(i) to provide for thresholds in relation to
the recovery of damages for non-
economic loss; and
Victoria
No. 60 of 2003
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(ii) to limit the damages that may be
awarded for gratuitous attendant care
services; and
(iii) to provide for proportionate liability in
proceedings for economic loss; and
(b) to amend the Limitation of Actions Act
1958 to provide for new limitation periods
for certain civil actions for damages that
relate to death or personal injury; and
(c) to amend the Building Act 1993 to repeal
the provisions relating to proportionate
liability; and
(d) to amend the Accident Compensation Act
1985 in relation to the role of Medical Panels
under the Wrongs Act 1958.
2. Commencement
(1) This Act (except sections 3, 17 and 18) is deemed
to have come into operation on 21 May 2003.
(2) Sections 3, 17 and 18 come into operation on a
day to be proclaimed.
__________________
s. 2
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PART 2—AMENDMENTS TO WRONGS ACT 1958
3. New Part IVAA inserted
After Part IV of the Wrongs Act 1958 insert—
'PART IVAA—PROPORTIONATE LIABILITY
24AE. Definitions
In this Part—
"apportionable claim" means a claim to
which this Part applies;
"court" includes tribunal and, in relation to
a claim for damages, means any court
or tribunal by or before which the claim
falls to be determined;
"damages" includes any form of monetary
compensation;
"defendant" includes any person joined as a
defendant or other party in the
proceeding (except as a plaintiff)
whether joined under this Part, under
rules of court or otherwise;
"economic loss" means any one or more of
the following—
(a) past economic loss due to loss of
earnings or the deprivation or
impairment of earning capacity;
(b) future economic loss due to the
deprivation or impairment of
earning capacity;
(c) the loss of expectation of financial
support;
s. 3
See:
Act No.
6420/1958.
Reprint No. 7
as at
19 November
1998
and
amending
Act Nos
75/2000
and 49/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
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"injury" means personal or bodily injury
and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and
(c) disease; and
(d) aggravation, acceleration or
recurrence of an injury or disease.
24AF. Application of Part
(1) This Part applies to—
(a) a claim for economic loss or damage to
property in an action for damages
(whether in contract, tort or otherwise)
arising from a failure to take reasonable
care; and
(b) a claim for damages for a contravention
of section 9 of the Fair Trading Act
1999.
(2) If a proceeding involves 2 or more
apportionable claims arising out of different
causes of action, liability for the
apportionable claims is to be determined in
accordance with this Part as if the claims
were a single claim.
(3) A provision of this Part that gives protection
from civil liability does not limit or
otherwise affect any protection from liability
given by any other provision of this Act or
by another Act or law.
s. 3
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24AG. What claims are excluded from this Part?
(1) This Part does not apply to claims arising out
of an injury.
(2) Without limiting sub-section (1), this Part
does not apply to the following—
(a) a claim to which Part 3, 6 or 10 of the
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
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;
(d) a claim for compensation under Part V
of the Country Fire Authority Act
1958 or a claim for compensation under
a compensation scheme established
under the regulations made under that
Act;
(e) an application for compensation under
Part 3 of the Victoria State
Emergency Service Act 1987;
(f) a claim for compensation under Part 6
of the Emergency Management Act
1986;
(g) an application for compensation under
the Police Assistance Compensation
Act 1968;
(h) an application for assistance under the
Victims of Crime Assistance Act
1996;
s. 3
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(i) a complaint under the Equal
Opportunity Act 1995;
(j) a claim for compensation under Part 8
of the Juries Act 2000 or Part VII of
the Juries Act 1967;
(k) a claim for compensation under
Division 6 of Part II of the Education
Act 1958.
(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.
24AH. Who is a concurrent wrongdoer?
(1) A concurrent wrongdoer, in relation to a
claim, is a person who is one of 2 or more
persons whose acts or omissions caused,
independently of each other or jointly, the
loss or damage that is the subject of the
claim.
(2) For the purposes of this Part it does not
matter that a concurrent wrongdoer is
insolvent, is being wound up, has ceased to
exist or has died.
24AI. Proportionate liability for apportionable
claims
(1) In any proceeding involving an
apportionable claim—
(a) the liability of a defendant who is a
concurrent wrongdoer in relation to that
claim is limited to an amount reflecting
that proportion of the loss or damage
claimed that the court considers just
having regard to the extent of the
defendant's responsibility for the loss or
damage; and
s. 3
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(b) judgment must not be given against the
defendant for more than that amount in
relation to that claim.
(2) If the proceeding involves both an
apportionable claim and a claim that is not
an apportionable claim—
(a) liability for the apportionable claim is
to be determined in accordance with
this Part; and
(b) liability for the other claim is to be
determined in accordance with the legal
rules, if any, that (apart from this Part)
are relevant.
(3) In apportioning responsibility between
defendants in the proceeding the court must
not have regard to the comparative
responsibility of any person who is not a
party to the proceeding unless the person is
not a party to the proceeding because the
person is dead or, if the person is a
corporation, the corporation has been
wound-up.
24AJ. Contribution not recoverable from
defendant
Despite anything to the contrary in Part IV, a
defendant against whom judgment is given
under this Part as a concurrent wrongdoer in
relation to an apportionable claim—
(a) cannot be required to contribute to the
damages recovered or recoverable from
another concurrent wrongdoer in the
same proceeding for the apportionable
claim; and
s. 3
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(b) cannot be required to indemnify any
such wrongdoer.
24AK. Subsequent actions
(1) In relation to an apportionable claim, nothing
in this Part or any other law prevents a
plaintiff who has previously recovered
judgment against a concurrent wrongdoer for
an apportionable part of any loss or damage
from bringing another action against any
other concurrent wrongdoer for that loss or
damage.
(2) However, in any proceeding in respect of
any such action the plaintiff cannot recover
an amount of damages that, having regard to
any damages previously recovered by the
plaintiff in respect of the loss or damage,
would result in the plaintiff receiving
compensation for loss or damage that is
greater than the loss or damage actually
suffered by the plaintiff.
24AL. Joining non-party concurrent wrongdoer in
the action
(1) Subject to sub-section (2), the court may
give leave for any one or more persons who
are concurrent wrongdoers in relation to an
apportionable claim to be joined as
defendants in a proceeding in relation to that
claim.
(2) The court is not to give leave for the joinder
of any person who was a party to any
previously concluded proceeding in relation
to the apportionable claim.
s. 3
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24AM. What if a defendant is fraudulent?
Despite sections 24AI and 24AJ, a defendant
in a proceeding in relation to an
apportionable claim who is found liable for
damages and against whom a finding of
fraud is made is jointly and severally liable
for the damages awarded against any other
defendant in the proceeding.
24AN. Liability for contributory negligence not
affected
Nothing in this Part affects the operation of
section 26.
24AO. Effect of Part IV
Except as provided in section 24AJ, nothing
in this Part affects the operation of Part IV.
24AP. Part not to affect other liability
Nothing in this Part—
(a) prevents a person from being held
vicariously liable for a proportion of
any apportionable claim for which
another person is liable; or
(b) prevents a person from being held
jointly and severally liable for the
damages awarded against another
person as agent of the person; or
(c) prevents a partner from being held
jointly and severally liable with another
partner for that proportion of an
apportionable claim for which the other
partner is liable; or
(d) prevents a court from awarding
exemplary or punitive damages against
a defendant in a proceeding; or
s. 3
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(e) affects the operation of any other Act to
the extent that it imposes several
liability on any person in respect of
what would otherwise be an
apportionable claim.
24AQ. Supreme Court—limitation of jurisdiction
It is the intention of sections 24AI and 24AL
to alter or vary section 85 of the
Constitution Act 1975.
24AR. Regulations
(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.
(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
the regulations, any matter contained in
any document as existing or in force—
(i) from time to time; or
(ii) at a particular time.
24AS. Transitional
This Part applies to proceedings that are
commenced in a court on or after the
commencement of section 3 of the Wrongs
and Limitation of Actions Acts (Insurance
Reform) Act 2003.'.
s. 3
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4. Insertion of Part VBA
After Part VB of the Wrongs Act 1958
insert—
'PART VBA—THRESHOLDS IN RELATION TO
RECOVERY OF DAMAGES FOR NON-
ECONOMIC LOSS
Division 1—Introductory
28LB. Definitions
In this Part—
"A.M.A. Guides" means the American
Medical Association's Guides to the
Evaluation of Permanent Impairment
(Fourth Edition) (other than
Chapter 15) as modified by or under
this Part;
"approved medical practitioner" means—
(a) if a training course has been
approved under section 91(1)(b)
of the Accident Compensation
Act 1985, a medical practitioner
who has successfully completed
the course; or
(b) if a training course has not been so
approved, a medical practitioner;
"certificate of assessment" means a
certificate provided under section
28LN;
"claimant" means a person who makes or is
entitled to make a claim for damages
that relate to the injury to a person
caused by the fault of another person;
s. 4
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"Convenor" means the Convenor or Deputy
Convenor appointed under section 63
of the Accident Compensation Act
1985;
"court" includes tribunal and, in relation to
a claim for damages, means any court
or tribunal by or before which the claim
falls to be determined;
"fault" includes act or omission;
"injury" means personal or bodily injury
and includes—
(a) pre-natal injury; and
(b) psychological or psychiatric
injury; and
(c) disease; and
(d) aggravation, acceleration or
recurrence of an injury or disease;
"Medical Panel" means a Medical Panel
under the Accident Compensation Act
1985;
"medical practitioner" means a registered
medical practitioner (within the
meaning of the Medical Practice Act
1994) and, in relation to anything done
for the purposes of this Act in a place
outside Victoria, includes a medical
practitioner who is lawfully qualified
under a law in force in that place to do
that thing;
"medical question" means a question as to
the degree of impairment of a person
resulting from injury;
s. 4
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"non-economic loss" means any one or
more of the following—
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
"registered health practitioner" means—
(a) a medical practitioner; or
(b) a registered dentist within the
meaning of the Dental Practice
Act 1999; or
(c) a registered chiropractor within
the meaning of the Chiropractors
Registration Act 1996; or
(d) a registered optometrist within the
meaning of the Optometrists
Registration Act 1996; or
(e) a registered osteopath within the
meaning of the Osteopaths
Registration Act 1996; or
(f) a registered physiotherapist within
the meaning of the
Physiotherapists Registration
Act 1998; or
(g) a registered podiatrist within the
meaning of the Podiatrists
Registration Act 1997; or
(h) a registered psychologist within
the meaning of the Psychologists
Registration Act 2000; or
(i) a registered Chinese medicine
practitioner within the meaning of
the Chinese Medicine
Registration Act 2000;
s. 4
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"respondent", in relation to a claim, means
the person against whom the claim is
made;
"threshold level" means—
(a) in the case of injury (other than
psychiatric injury), impairment of
more than 5 per cent;
(b) in the case of psychiatric injury,
impairment of more than 10 per
cent.
28LC. Application of Part
(1) This Part applies to claims for the recovery
of damages for non-economic loss, except
claims that are excluded by sub-section (2)
or (3).
(2) This Part does not apply to the following
claims for the recovery of damages for non-
economic loss—
(a) a claim where the fault concerned is, or
relates to, an intentional act that is done
with intent to cause death or injury or
that is sexual assault or other sexual
misconduct;
(b) a claim to which Part 3, 6 or 10 of the
Transport Accident Act 1986 applies;
(c) a claim to which Part IV of the
Accident Compensation Act 1985
applies;
(d) a claim in respect of an injury or death
which 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.
s. 4
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(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.
(4) This Part extends to a claim for damages for
non-economic loss even if the claim is
founded on breach of contract or any other
cause of action.
28LD. This Part is substantive law
For the avoidance of doubt it is declared that
all the provisions of this Part contain matters
that are substantive law and are not
procedural in nature.
Division 2—Restriction on Recovery of
Damages for Non-Economic Loss
28LE. Restriction on recovery of damages for non-
economic loss
A person is not entitled to recover damages
for non-economic loss in any proceeding in a
court in respect of an injury to a person
caused by the fault of another person unless
the person injured has suffered significant
injury.
28LF. What is significant injury?
(1) For the purposes of this Part injury to a
person (other than a psychiatric injury) is
significant injury if—
(a) the degree of impairment of the whole
person resulting from the injury has
been assessed by an approved medical
practitioner in accordance with this Part
as satisfying the threshold level, unless
a Medical Panel has made a
determination as to the threshold level
under Division 5; or
s. 4
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(b) a Medical Panel has determined under
Division 5 that the degree of
impairment of the whole person
resulting from the injury satisfies the
threshold level; or
(c) the injury is loss of a foetus; or
(d) the injury is loss of a breast.
(2) For the purposes of this Part psychiatric
injury to a person is significant injury if—
(a) the degree of impairment resulting from
the injury has been assessed by an
approved medical practitioner in
accordance with this Part as satisfying
the threshold level, unless a Medical
Panel has made a determination as to
the threshold level under Division 5; or
(b) a Medical Panel has determined under
Division 5 that the degree of
impairment resulting from the injury
satisfies the threshold level.
(3) For the purposes of this Part injury to a
person is deemed to be significant injury if—
(a) an agreement is given under Division 4
to waive the requirement for
assessment in respect of the injury; or
(b) the court makes a determination in
respect of that person under section
28LZN.
Division 3—Assessment of Impairment
28LG. Who can assess impairment?
The assessment of degree of impairment
must be made by an approved medical
practitioner.
s. 4
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28LH. How is the degree of impairment to be
assessed?
Subject to this Division, an approved
medical practitioner must make an
assessment of impairment under this Part—
(a) in accordance with—
(i) the A.M.A. Guides; or
(ii) the methods prescribed for the
purposes of this Part; and
(b) in accordance with operational
guidelines (if any) as to the use of those
Guides or methods issued by the
Minister.
28LI. Assessment of psychiatric impairment
For the purposes of assessing the degree of
psychiatric impairment, the A.M.A. Guides
apply, subject to the regulations, as if for
Chapter 14 there were substituted the
Clinical Guidelines to the Rating of
Psychiatric Impairment prepared by the
Medical Panel (Psychiatry) Melbourne,
Victoria in October 1997 and published in
the Government Gazette on 28 August 1998.
28LJ. Regard not to be had to secondary
psychiatric or psychological impairment
In assessing a degree of impairment of a
person under this Part, regard must not be
had to any psychiatric or psychological
injury, impairment or symptoms arising as a
consequence of, or secondary to, a physical
injury.
s. 4
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28LK. Assessment of hearing impairment
(1) For the purposes of assessing the degree of
impairment of the whole person resulting
from binaural hearing impairment, the
percentage of the diminution of hearing
determined in accordance with sub-section
(2) is to be converted as follows—
(a) if the binaural loss of hearing is 5 per
cent NAL or less, the degree of
impairment is to be assessed as zero;
(b) if the binaural loss of hearing is a
percentage that is more than 5 per cent
NAL, the degree of impairment is to be
assessed at that percentage.
(2) For the purposes of this section, the
percentage of diminution of hearing—
(a) must be determined—
(i) by a person or class of persons
approved; and
(ii) in the manner approved—
under section 91(4) of the Accident
Compensation Act 1985; and
(b) must be determined in accordance with
the Improved Procedure for
Determination of Percentage Loss of
Hearing (1988 Edition or a later
prescribed edition) published by the
National Acoustic Laboratory.
28LL. Assessment in relation to injuries arising
out of the same incident
(1) If a person has more than one impairment
resulting from injuries which arose out of the
same incident, all of those impairments must
be included in the one assessment.
s. 4
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(2) For the purposes of this Part, impairments,
other than psychiatric impairments, resulting
from injuries which arose out of the same
incident are to be assessed together using the
combination tables in the A.M.A. Guides or
the methods prescribed for the purposes of
this Part.
(3) For the purposes of this Part, impairments
from unrelated injuries or causes are to be
disregarded in making an assessment.
28LM. Prescribed methods for assessment
If methods are prescribed for the purposes of
this Part and apply to an assessment of
impairment, the assessment must be made in
accordance with those methods rather than in
accordance with the A.M.A. Guides.
28LN. Certificate of assessment
(1) An approved medical practitioner who
makes an assessment of degree of
impairment under this Part must provide to
the person seeking the assessment a
certificate of assessment.
(2) The certificate of assessment must state
whether the degree of impairment resulting
from the injury satisfies the threshold level
but must not state the specific degree of
impairment.
s. 4
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Division 4—Procedure for Claim for Non-
Economic Loss
28LO. Agreement to waive assessment of
impairment
(1) A claimant may, in writing, ask the
respondent to waive the requirement for an
assessment of degree of impairment under
this Part.
(2) A respondent to whom a request under sub-
section (1) is made must respond in writing
to the request within 30 days after receiving
it.
(3) The response must—
(a) state that the respondent is a proper
respondent to the claim and state that
the respondent agrees to waive the
requirement for the assessment of
degree of impairment under this Part
because the injury is significant injury;
or
(b) state that the respondent is a proper
respondent to the claim and request that
the claimant obtain an assessment of
degree of impairment under this Part; or
(c) if the respondent is unable to decide, on
the information contained in the notice
of claim, 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 is a
proper respondent to the claim; or
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(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
information that may help the claimant
to identify the proper respondent.
(4) If the respondent fails to respond within the
30 days, the requirement for the assessment
of degree of impairment cannot be waived by
the respondent.
28LP. What if the respondent asks for more
information?
(1) If under section 28LO(3)(c) a respondent
advises a claimant that specified further
information is needed, the claimant must
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
set out in section 28LO(3)(a), (b) or (d)
within 30 days after receiving the
information.
(3) If the respondent fails to respond within the
30 days, the requirement for the assessment
of degree of impairment cannot be waived by
the respondent.
28LQ. What if the respondent disputes
responsibility?
(1) If a respondent responds in accordance with
section 28LO(3)(d), the claimant must give
written notice to the respondent, within 14
days after receiving the response, that
either—
s. 4
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(a) on the information available to the
claimant, the claimant accepts that the
respondent is not a proper respondent to
the claim; or
(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
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 agrees to
waive the requirement for the
assessment of degree of impairment
under this Part because the injury is
significant injury; or
(b) request that the claimant obtain an
assessment of degree of impairment
under this Part.
(4) If the respondent fails to respond within the
14 days, the requirement for the assessment
of degree of impairment cannot be waived by
the respondent.
28LR. Can a respondent bind any other
respondent?
An agreement under this Division by a
respondent to a claim that the assessment is
not required because the injury is significant
injury does not bind any other respondent.
28LS. Statement not admission of liability
A statement under this Division that a
respondent is a proper respondent to a claim
is not an admission of liability in respect of
the claim.
s. 4
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28LT. Copy of certificate of assessment to be
served on respondent
A claimant must serve on the respondent a
copy of a certificate of assessment (if any)
obtained under this Part on which the
claimant intends to rely.
28LU. Multiple respondents
(1) If there are 2 or more respondents to a claim,
one of the respondents (the respondents'
claim manager) may act for one or more of
the other respondents, with the agreement of
those other respondents, for the purposes of
the claim.
(2) The respondents' claim manager—
(a) may exercise the powers and perform
the duties conferred by this Part in
relation to the claim and the claimant
for all respondents for whom the
respondents' claim manager acts; and
(b) must act as far as practicable with the
agreement of the other respondents for
whom the respondents' claim manager
acts.
(3) Action taken or an agreement made by the
respondents' claim manager in relation to the
claim is binding on each respondent for
whom the respondents' claim manager acts
so far as it affects the claimant.
(4) If the respondents' claim manager acts
beyond the scope of the respondents' claim
manager's authority under the agreement
referred to in sub-section (1), the
respondents' claim manager is liable to each
other respondent who is a party to the
agreement for any loss suffered by the other
respondent.
s. 4
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28LV. Limitation period suspended
Service of a copy of a certificate of
assessment on a respondent suspends the
relevant period of limitation under the
Limitation of Actions Act 1958 or this Act
in respect of the claim until the expiry of 3
months after whichever of the following first
occurs—
(a) the respondent accepts in writing under
section 28LW the assessment in the
certificate of assessment;
(b) the respondent is deemed under section
28LW or 28LZA to have accepted the
assessment;
(c) if the respondent refers a medical
question in relation to the assessment to
a Medical Panel for opinion under this
Part, the expiry of any period for
bringing an application for any relief or
remedy in relation to the opinion of the
Medical Panel, unless such an
application is brought within that
period;
(d) if the respondent brings an application
for any relief or remedy in relation to
the opinion of a Medical Panel, the
final determination of that application.
28LW. Response to medical assessment
(1) The respondent must within 30 days after
being served with a copy of the certificate of
assessment—
(a) accept in writing the assessment for the
purposes of this Part; or
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(b) refer a medical question in relation to
the assessment to a Medical Panel for
opinion under this Part and advise the
claimant in writing that the reference
has been made.
(2) If the respondent fails to respond in writing
under sub-section (1) within the 30 days, the
respondent is deemed to have accepted the
assessment.
28LX. Respondent to pay costs of referral
The respondent is liable for the costs of a
referral of a medical question to a Medical
Panel for opinion under this Part including
the costs of—
(a) any attendance before the Medical
Panel under section 28LZE of a
registered health practitioner; and
(b) copying documents to be provided
under section 28LZC or 28LZE; and
(c) reasonable transport arrangements for
persons attending the Medical Panel.
Division 5—Procedure of Medical Panel
28LY. Application
This Division sets out the powers and
procedures of a Medical Panel in relation to
a medical question referred to it under
Division 4.
28LZ. Procedure of Medical Panel
(1) A Medical Panel is not bound by rules or
practices as to evidence, but may inform
itself on any matter relating to a reference in
any manner it thinks fit.
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(2) A Medical Panel must act informally,
without regard to technicalities or legal
forms and as speedily as a proper
consideration of the reference allows.
(3) A Medical Panel must comply with—
(a) any relevant guidelines as to the
procedures of Medical Panels issued
under section 65(8) of the Accident
Compensation Act 1985; and
(b) any relevant directions as to the
procedures of Medical Panels given by
the Convenor under section 65(9) of
that Act.
(4) The guidelines and directions referred to in
sub-section (3) apply for the purposes of this
Part with any necessary modifications.
28LZA. Respondent must provide information to
Medical Panel
(1) A respondent referring a medical question to
a Medical Panel must submit to the Medical
Panel—
(a) a notice in writing setting out—
(i) the medical question; and
(ii) any other prescribed information;
and
(b) a copy of any relevant certificate of
assessment served on the respondent by
the claimant under section 28LT.
(2) A respondent referring a medical question to
a Medical Panel must submit to the Panel
copies of all documents in the possession of
that respondent that relate to the medical
question.
s. 4
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(3) The Medical Panel may refuse to proceed to
consider a medical question if it is not
provided with the required documents under
this section.
(4) If the respondent fails to provide the Medical
Panel with the required documents within 30
days after being requested in writing to do so
by the Convenor, the respondent is deemed
to have accepted the assessment in the
certificate of assessment.
(5) The Convenor must notify the claimant in
writing within 7 days of a deemed
acceptance under sub-section (4).
28LZB. What if there is more than one referral in
relation to an assessment?
The Convenor may direct that referrals by 2
or more respondents to the Medical Panel
that concern the same assessment be
consolidated.
28LZC. What can a Medical Panel ask a claimant
to do?
A Medical Panel may ask a claimant—
(a) to meet with the Panel and answer
questions;
(b) to supply to the Panel copies of all
documents in the possession of the
claimant that relate to the medical
question;
(c) to submit to a medical examination by
the Panel or by a member of the Panel.
s. 4
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28LZD. Attendance before Medical Panel to be
private
(1) Any attendance of a claimant before a
Medical Panel must be in private, unless the
Medical Panel considers that it is necessary
for another person to be present.
(2) If the claimant is a person under disability,
the Medical Panel must permit a
representative of the claimant to be present.
(3) In this section "person under disability"
means a person who is—
(a) a minor; or
(b) incapable by reason of injury, disease,
senility, illness or physical or mental
infirmity of managing his or her affairs
in relation to the matter before the
Medical Panel.
28LZE. Medical Panel can ask a registered health
practitioner to attend
If a Medical Panel so requests and the
claimant consents, a registered health
practitioner who has examined the claimant
must—
(a) meet with the Panel and answer
questions; and
(b) supply relevant documents to the Panel.
28LZF. Protection of information given to Medical
Panel
Information given to a Medical Panel cannot
be used in any civil or criminal proceeding in
any court, other than a proceeding—
(a) relating to the claim for which the
opinion is sought; or
s. 4
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(b) for an offence against the Crimes Act
1958 which arises in connection with
the claim.
28LZG. Opinions
(1) An assessment by a Medical Panel of the
degree of impairment of a person must be
made in accordance with Division 3.
(2) A Medical Panel must give the claimant and
the respondent its opinion on a medical
question referred to it within 60 days after
the reference is made or such longer period
as is agreed by the claimant and the
respondent.
(3) The opinion of the Medical Panel must be
given in writing and certified by the Medical
Panel.
(4) The opinion must state whether the degree of
impairment resulting from the injury satisfies
the threshold level but must not state the
specific degree of impairment.
28LZH. Effect of determination as to threshold level
(1) A determination by the Medical Panel under
this Division that the degree of impairment
resulting from an injury satisfies the
threshold level must be accepted by a court
in any proceeding on the claim as a
determination of significant injury for the
purposes of this Part.
(2) A determination by the Medical Panel under
this Division that the degree of impairment
resulting from an injury does not satisfy the
threshold level must be accepted by a court
in any proceeding on the claim as a
determination that the injury is not
significant injury for the purposes of this
Part.
s. 4
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28LZI. Limitations on appeal in relation to
assessments and determinations
(1) No appeal on the merits may be made to a
court from an assessment or determination of
a Medical Panel under this Division.
(2) Nothing in sub-section (1) affects any right
of a court to grant any other relief or remedy
in relation to an assessment or determination
of a Medical Panel under this Division.
28LZJ. Treating medical practitioner not to be on
Medical Panel
If a medical practitioner has treated or
examined or has been engaged to treat or
examine the claimant (otherwise than in his
or her capacity as a member of a Medical
Panel), he or she must not be a member of a
Medical Panel considering a medical
question relating to the claimant.
28LZK. Validity of acts or decisions
An act or decision of a Medical Panel under
this Division is not invalid by reason only of
any defect or irregularity in or in connection
with the appointment of a member.
28LZL. Operation of Panel provisions of the
Accident Compensation Act
(1) Sections 65(1) to (6B), 66, 67 and 68 of the
Accident Compensation Act 1985 do not
apply to or in relation to—
(a) the procedure of a Medical Panel under
this Part; or
(b) a matter referred to a Medical Panel
under this Part.
s. 4
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(2) Except as provided in sub-section (1), and
subject to any inconsistency of context or
subject-matter, Division 3 of Part III of the
Accident Compensation Act 1985 applies
to a Medical Panel appointed for the
purposes of this Part.
Division 6—Proceedings on Claim
28LZM. Provision of assessment information to
court
(1) This section applies to a claimant who brings
a proceeding in a court in respect of a claim
for damages for non-economic loss to which
this Part applies in respect of injury to a
person caused by the fault of another person.
(2) The claimant must file in the court before the
determination of the claim—
(a) if the claimant intends to rely on a
certificate of assessment under this
Part, a copy of that certificate; or
(b) if the claimant intends to rely on the
written agreement of any respondent
under Division 4 to waive the
requirement for assessment in respect
of the injury, a copy of that agreement.
(3) If a Medical Panel has made a determination
as to the threshold level under Division 5, the
claimant must also file in the court a copy of
the certificate of opinion of the Medical
Panel.
(4) If the respondent is deemed to have accepted
an assessment under this Part, the claimant
must also file in the court a statement to that
effect.
s. 4
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28LZN. Alternative procedure for special cases
(1) A claimant may apply to a court for a
determination of significant injury for the
purposes of this Part.
(2) The court may make a determination of
significant injury in respect of a claimant if
the court is satisfied that—
(a) the claim should be dealt with urgently
because of the imminent death of the
claimant; and
(b) the injury, if assessed under Division 3,
would be significant injury.
(3) The court may make a determination of
significant injury in respect of a claimant if
the court is satisfied that—
(a) the claim relates to a cause of action
that survives for the benefit of the
estate of a deceased person under
section 29(1) of the Administration
and Probate Act 1958; and
(b) the deceased person died from a cause
other than the injury to which the claim
relates; and
(c) the injury to which the claim relates, if
it had been assessed under Division 3,
would be significant injury.
Division 7—General
28LZO. Supreme Court—limitation of jurisdiction
It is the intention of sections 28LE, 28LZH,
28LZI and 28LZL to alter or vary section 85
of the Constitution Act 1975.
s. 4
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28LZP. Regulations
(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.
(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
the regulations, any matter contained in
any document as existing or in force at
the time the regulations are made.
(3) Without limiting sub-sections (1) and (2), the
regulations may modify the A.M.A. Guides.
(4) Without limiting sub-sections (1) and (2), the
regulations may fix the methods to be used
for the purpose of assessing the degree of
impairment in respect of injury to a person.
(5) Regulations made under sub-section (4)—
(a) must specify the methods to be used
and any modifications of those methods
that are to apply; and
(b) can only apply for the purpose of
assessing the degree of impairment of a
person who receives an injury on or
after the date that the regulations are
made or on or after a later date
specified in the regulations.
s. 4
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28LZQ. Transitional
(1) This Part applies to an award of damages for
non-economic loss that relates to an injury
received on or after 21 May 2003.
(2) On and from 1 October 2003, this Part
applies to an award of damages for non-
economic loss that relates to an injury
received before 21 May 2003.
(3) Sub-section (2) does not apply to an award
of damages in a proceeding commenced in a
court before 1 October 2003.'.
5. New definitions
In section 28B of the Wrongs Act 1958 insert the
following definitions—
' "attendant care services" means any of the
following—
(a) services of a domestic nature;
(b) services relating to nursing;
(c) services that aim to alleviate the
consequences of an injury;
"gratuitous attendant care services" means
attendant care services—
(a) that have or are to be provided by
another person to a claimant; and
(b) for which the claimant has not paid or
is not liable to pay;'.
s. 5
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6. New sections 28IA, 28IB and 28IC inserted
After section 28I of the Wrongs Act 1958
insert—
"28IA. Limitation on damages for gratuitous
attendant care
(1) No damages may be awarded to a claimant
for gratuitous attendant care services unless
the court is satisfied that—
(a) there is (or was) a reasonable need for
the services to be provided; and
(b) the need has arisen (or arose) solely
because of the injury to which the
damages relate; and
(c) the services would not be (or would not
have been) provided to the claimant but
for the injury.
(2) Further, no damages may be awarded to a
claimant for gratuitous attendant care
services if the services are provided, or are to
be provided—
(a) for less than 6 hours per week; and
(b) for less than 6 months.
28IB. Calculation of damages
(1) If gratuitous attendant care services are
provided or are to be provided for not less
than 40 hours per week, the amount of
damages that may be awarded for the
services must not 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
for—
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(i) in respect of the whole or any part
of a quarter occurring between the
date of the injury in relation to
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
the award, available to the court
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
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
(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
such manner or by reference to such
matters, or both, as may be prescribed.
(2) If gratuitous attendant care services are
provided or are to be provided for less than
40 hours per week, the amount of damages
that may be awarded for the services must
not exceed the 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.
s. 6
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28IC. Other laws not to be affected
Except as provided by sections 28IA and
28IB, nothing in those sections affects any
other law relating to the value of attendant
care services.".
7. Supreme Court—limitation of jurisdiction
At the end of section 28J of the Wrongs Act 1958
insert—
"(2) It is the intention of section 28D (as affected
by the amendments made to this Part by the
Wrongs and Limitation of Actions Acts
(Insurance Reform) Act 2003) to alter or
vary section 85 of the Constitution Act
1975.".
8. Transitional
In section 28L(1) of the Wrongs Act 1958 after
"Part" insert "(except sections 28IA, 28IB, 28IC
and 28J(2))".
9. New section 28LA inserted
After section 28L of the Wrongs Act 1958
insert—
"28LA. Transitional for gratuitous attendant care
services
(1) Sections 28IA, 28IB, 28IC and 28J(2) apply
to an award of damages for gratuitous
attendant care services that relates to an
injury received on or after 21 May 2003.
(2) On and from 1 October 2003, sections 28IA,
28IB, 28IC and 28J(2) apply to an award of
damages for gratuitous attendant care
services that relates to an injury received
before 21 May 2003.
s. 7
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(3) Despite sub-section (2), sections 28IA, 28IB,
28IC and 28J(2) do not apply to an award of
damages for gratuitous attendant care
services that relates to an injury received
before 21 May 2003 if the award is made in
a proceeding commenced in a court before
1 October 2003.".
10. Amendment of section 20
After section 20(6) of the Wrongs Act 1958
insert—
"(7) This section does not apply in respect of a
cause of action to which Part IIA of the
Limitation of Actions Act 1958 applies.".
__________________
s. 10
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PART 3—AMENDMENTS TO LIMITATION OF ACTIONS
ACT 1958
11. Amendment of section 5
After section 5(8) of the Limitation of Actions
Act 1958 insert—
"(9) Despite sub-section (1C), this section does
not apply to an action to which Part IIA
applies.".
12. Amendment of section 23
After section 23(1) of the Limitation of Actions
Act 1958 insert—
"(1A) Sub-section (1) does not apply to a right of
action to which Part IIA applies.".
13. Amendment of section 23A
After section 23A(5) of the Limitation of Actions
Act 1958 insert—
"(6) Except as provided by section 27M(2), this
section does not apply to an action to which
Part IIA applies.".
s. 11
See:
Act No.
6295/1958
Reprint No. 7
as at
23 April 1998
and
amending
Act Nos
52/1998,
74/2000 and
52/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
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14. New Part IIA inserted
After Part II of the Limitation of Actions Act
1958 insert—
'PART IIA—PERSONAL INJURY ACTIONS
Division 1—Introductory
27A. Interpretation
(1) In this Part—
"guardian" of a minor includes any person
who is granted guardianship of the
minor under the Children and Young
Persons Act 1989 or any other Act or
law;
"long-stop limitation period", in relation to
a cause of action for damages that
relate to death or personal injury,
means the period of 12 years from the
date of the act or omission alleged to
have resulted in the death or personal
injury with which the action is
concerned;
"parent" includes any person who has all
the duties, powers, responsibilities and
authority (whether conferred by a court
or otherwise) which, by law, parents
have in relation to children;
"survivor action" means a cause of action
that survives for the benefit of the
estate of a deceased person under
section 29(1) of the Administration
and Probate Act 1958 but does not
include a cause of action to which
section 29(2A) of that Act applies.
s. 14
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(2) In this Part in relation to a cause of action
under section 159 of the Fair Trading Act
1999, a reference to a court includes a
reference to the Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
Tribunal Act 1998.
27B. Application
(1) This Part applies to a cause of action for
damages that relate to the death of or
personal injury to a person, regardless of
whether the action for damages is founded in
tort, in contract, under statute or otherwise.
(2) This Part does not apply to the following—
(a) actions for damages to which Part IV of
the Accident Compensation Act 1985
applies;
(b) actions for damages in respect of an
injury which entitles, or may entitle, a
worker within the meaning of the
Workers Compensation Act 1958 to
compensation under that Act;
(c) actions for damages to which Part 6 or
Part 10 of the Transport Accident Act
1986 applies;
(d) actions for damages in respect of an
injury that is a dust-related condition
within the meaning of the
Administration and Probate Act
1958;
(e) actions 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 to tobacco smoke.
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(3) This Part extends to a cause of action that—
(a) is a survivor action; or
(b) is an action that arises under Part III of
the Wrongs Act 1958.
(4) This Part applies despite anything to the
contrary in section 159(3) of the Fair
Trading Act 1999.
Division 2—Limitation Period for Personal
Injury Actions
27C. Application of Division
The provisions of this Division have effect
subject to the provisions of Division 3.
27D. Limitation period for personal injury
actions—general
(1) An action in respect of a cause of action to
which this Part applies shall not be brought
after the expiration of whichever of the
following periods is the first to expire—
(a) the period of 3 years from the date on
which the cause of action is
discoverable by the plaintiff;
(b) the period of 12 years from the date of
the act or omission alleged to have
resulted in the death or personal injury
with which the action is concerned.
(2) This section does not apply to a cause of
action that is founded on a personal injury to
a person who was under a disability at the
date of the act or omission alleged to have
resulted in the personal injury.
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27E. Limitation period for personal injury
actions—persons under a disability
(1) This section applies to a cause of action to
which this Part applies which is founded on a
personal injury to a person who was under a
disability at the date of the act or omission
alleged to have resulted in the personal
injury.
(2) An action in respect of a cause of action to
which this section applies shall not be
brought after the expiration of whichever of
the following periods is the first to expire—
(a) the period of 6 years from the date on
which the cause of action is
discoverable by the plaintiff;
(b) the period of 12 years from the date of
the act or omission alleged to have
resulted in the personal injury with
which the action is concerned.
27F. Date cause of action is discoverable
(1) For the purposes of this Part, a cause of
action is discoverable by a person on the first
date that the person knows or ought to have
known of all of the following facts—
(a) the fact that the death or personal injury
concerned has occurred;
(b) the fact that the death or personal injury
was caused by the fault of the
defendant;
(c) in the case of personal injury, the fact
that the personal injury was sufficiently
serious to justify the bringing of an
action on the cause of action.
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(2) A person ought to know of a fact at a
particular date if the fact would have been
ascertained by the person had the person
taken all reasonable steps before that date to
ascertain the fact.
(3) In determining what a person knows or ought
to have known, a court may have regard to
the conduct and statements, oral or in
writing, of the person.
(4) To remove doubt, a cause of action that
arises under Part III of the Wrongs Act 1958
is not discoverable before the date of death
of the deceased.
27G. Application to survivor actions
Subject to section 27I, for the purposes of the
application of this Part to a survivor action,
the cause of action is deemed to be
discoverable by the plaintiff at whichever is
the earliest of the following dates—
(a) the date on which the cause of action is
discoverable by the deceased if the
cause of action is discoverable by the
deceased more than 3 years before the
death of the deceased;
(b) the date of appointment of the plaintiff
as the deceased's executor or
administrator if the cause of action is
discoverable by the plaintiff at or
before the date of that appointment;
(c) the date on which the cause of action is
discoverable by the plaintiff if the cause
of action is discoverable by the plaintiff
after the appointment of the plaintiff as
the deceased's executor or
administrator.
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27H. Application to Part III Wrongs Act actions
For the purposes of the application of this
Part to a cause of action that arises under
Part III of the Wrongs Act 1958, the long-
stop limitation period is deemed to run from
the date of death of the deceased.
27I. Special limitation period for minors injured
by close relatives or close associates
(1) If a cause of action is founded on the death
of or personal injury to a person (the victim)
who was a minor at the date of the act or
omission alleged to have resulted in that
death or personal injury and the cause of
action is against a person who at that date
was a parent or guardian of the victim or a
close associate of a parent or guardian of the
victim—
(a) the cause of action is, for the purposes
of this Part, deemed to be discoverable
by the victim when the victim turns 25
years of age or when the cause of action
is actually discoverable by the victim,
whichever is the later; and
(b) the long-stop limitation period for the
cause of action is the period of 12 years
from when the victim turns 25 years of
age.
(2) A person is a close associate of a parent or
guardian of the victim if the person is a
person whose relationship with the parent or
guardian is such that—
(a) the parent or guardian might be
influenced by the person not to bring an
action on behalf of the victim against
the person; or
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(b) the victim might be unwilling to
disclose to the parent or guardian the
act or omission alleged to have resulted
in the death or personal injury.
(3) If the victim dies before turning 25 years of
age, the period of limitation applicable to a
survivor action that survives on the death of
the victim is to be determined as if
references in this section to when the victim
turns 25 years of age were references to the
death of the victim.
27J. Effect of legal incapacity on limitation
period
(1) A person is under a legal incapacity for the
purposes of this section while the person—
(a) is a minor, but not while the minor is in
the custody of a capable parent or
guardian; or
(b) is an incapacitated person for a
continuous period of 28 days or more,
but not while—
(i) the person is a represented person;
and
(ii) the guardian of the person is
authorised by law to bring actions
in the person's name.
(2) If a person has a cause of action for which a
period of limitation has commenced to run
and the person is under a legal incapacity,
the running of the period of limitation is
suspended for the duration of the legal
incapacity.
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(3) In determining when a cause of action is
discoverable by a person who is a minor or
an incapacitated person and who is not under
a legal incapacity, facts that are known or
ought to be known by a capable parent or
guardian of the minor or the guardian of the
represented person are deemed to be facts
that are known or ought to be known by the
minor or incapacitated person.
(4) In this section—
"capable parent or guardian" of a minor
means a person—
(a) who is a parent or guardian of the
minor; and
(b) who is not under a legal
incapacity;
"guardian", in relation to a represented
person, means—
(a) the guardian or administrator of
that person under the
Guardianship and
Administration Act 1986; or
(b) in the case of a protected person,
State Trustees Limited;
"incapacitated person" means a person
who is incapable of, or substantially
impeded in, the management of his or
her affairs in relation to the cause of
action in respect of which the question
arises, by reason of any disease or any
impairment of his or her physical or
mental condition;
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"represented person" means—
(a) represented person within the
meaning of the Guardianship
and Administration Act 1986; or
(b) protected person within the
meaning of section 85 of that Act.
Division 3—Extension of Limitation Period for
Personal Injury Actions
27K. Extension of limitation periods
(1) A person claiming to have a cause of action
to which this Part applies may apply to a
court for an extension of a period of
limitation applicable to the cause of action
under Division 2.
(2) Subject to section 27L, the court—
(a) may hear any of the persons likely to be
affected by the application as it sees fit;
and
(b) may, if it decides that it is just and
reasonable to do so, order the extension
of the period of limitation applicable to
the cause of action for such period as
the court determines.
(3) If a court orders the extension of a period of
limitation applicable to a cause of action
under this section, that period of limitation is
accordingly extended for the purposes of an
action brought by the applicant in that court
on the cause of action that the applicant
claims to have.
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27L. Matters to be considered in determining
applications for extension of limitation
period
(1) In exercising the powers conferred on it by
section 27K, a court shall have regard to all
the circumstances of the case, including (but
not limited to) the following—
(a) the length of and reasons for the delay
on the part of the plaintiff;
(b) the extent to which, having regard to
the delay, there is or is likely to be
prejudice to the defendant;
(c) the extent, if any, to which the
defendant had taken steps to make
available to the plaintiff means of
ascertaining facts which were or might
be relevant to the cause of action of the
plaintiff against the defendant;
(d) the duration of any disability or legal
incapacity of the plaintiff arising on or
after the date of discoverability;
(e) the time within which the cause of
action was discoverable;
(f) the extent to which the plaintiff acted
promptly and reasonably once the
plaintiff knew that the act or omission
of the defendant, to which the injury of
the plaintiff was attributable, might be
capable at that time of giving rise to an
action for damages;
(g) the steps, if any, taken by the plaintiff
to obtain medical, legal or other expert
advice and the nature of the advice he
or she may have received.
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(2) To avoid doubt, the circumstances referred to
in sub-section (1) include the following—
(a) whether the passage of time has
prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's
loss; and
(c) the nature of the defendant's conduct.
(3) In the application of this section to a cause of
action that is a survivor action references in
sub-section (1) to the plaintiff include
references to the deceased and the applicant,
or any of them, as appropriate in the
circumstances.
(4) In the application of this section to a cause of
action that arises under Part III of the
Wrongs Act 1958, references in sub-section
(1) to the plaintiff include references to the
deceased, the executor or administrator of
the deceased, and the beneficiaries, or any of
them, as appropriate in the circumstances.
27M. Effect of expiry of limitation period prior to
extension
(1) The powers conferred on a court by this
Division may be exercised at any time even
though—
(a) the period of limitation has already
expired; or
(b) an action in respect of the death or
personal injury has been commenced.
(2) Section 23A(5) applies, with any necessary
modifications, to an application under this
Division.
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Division 4—Transitional
27N. Transitional
(1) This Part applies to causes of action where
the act or omission alleged to have resulted
in the death or personal injury with which
the action is concerned occurs on or after
21 May 2003.
(2) On and from 1 October 2003, this Part
applies to causes of action where the act or
omission alleged to have resulted in the
death or personal injury with which the
action is concerned occurred before 21 May
2003.
(3) Sub-section (2) does not apply to a cause of
action for which proceedings were
commenced in a court before 1 October
2003.
(4) Despite sub-section (2), nothing in
Division 2 operates to extend a period of
limitation applicable to a cause of action in
relation to an act or omission that occurred
before 21 May 2003 to a period longer than
the period of limitation that would have
applied to the cause of action if this Part had
not been enacted.
(5) Nothing in sub-section (4) operates to
prevent an application being made under
Division 3 to extend a period of limitation
referred to in that sub-section.'.
15. Amendment of section 33
In section 33 of the Limitation of Actions Act
1958 after "foregoing," insert "and except as
provided in Part IIA,".
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16. New section 38A inserted
After section 38 of the Limitation of Actions Act
1958 insert—
"38A. Supreme Court—limitation of jurisdiction
It is the intention of Part IIA to alter or vary
section 85 of the Constitution Act 1975.".
__________________
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PART 4—AMENDMENTS TO OTHER ACTS
17. Repeal of sections 131 to 133 of the Building Act 1993
Sections 131, 132 and 133 of the Building Act
1993 are repealed.
18. New section 267 inserted in Building Act 1993
After section 266 of the Building Act 1993
insert—
"267. Transitional—proportionate liability
Despite the repeal of sections 131, 132 and
133 by the Wrongs and Limitation of
Actions Acts (Insurance Reform) Act
2003, those sections continue to apply to and
in relation to an award of damages in a
building action commenced before that
repeal.".
19. Amendments to Accident Compensation Act 1985
(1) In section 48(1) of the Accident Compensation
Act 1985 after "Act" insert "or Part VBA of the
Wrongs Act 1958".
(2) In section 63(1) of the Accident Compensation
Act 1985—
(a) after "this Act" (where first occurring) insert
"and Part VBA of the Wrongs Act 1958";
and
(b) after "this Act" (where secondly occurring)
insert "or that Part".
(3) After section 65(8) of the Accident
Compensation Act 1985 insert—
"(8A) The Minister must consult with the Attorney-
General before issuing any guidelines under
this section.".
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20. Amendments to Fair Trading Act 1999
At the end of section 159(3) of the Fair Trading
Act 1999 insert—
"Note: This sub-section is subject to Part IIA of the
Limitation of Actions Act 1958.".
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 21 May 2003
Legislative Council: 10 June 2003
The long title for the Bill for this Act was "to amend the Wrongs Act
1958 to provide for thresholds in relation to the recovery of damages for
non-economic loss, to limit the recovery of damages for gratuitous
attendant care services and to provide for proportionate liability in certain
proceedings, to amend the Limitation of Actions Act 1958 in relation to
actions that relate to death or personal injury and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 21 May 2003
Legislative Council: 10 June 2003
Absolute majorities:
Legislative Assembly: 5 June 2003
Legislative Council: 10 June 2003
Endnotes
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