There are three compensation schemes for personal injury in Victoria.
- The Workplace Injury Rehabilitation and Compensation Act 2013 (External link), which provides a scheme for managing compensation claims for Victorian workplace injuries. The scheme is managed by the WorkSafe Victoria – please refer to the WorkSafe Victoria website (External link) for more information.
The Transport Accident Act 1986 (External link), which provides a scheme covering injuries or death as a result of transport accidents which occur in Victoria. The scheme is managed by the Transport Accident Commission (TAC) – please refer to the TAC website (External link) for more information.
- The Wrongs Act 1958 (External link)(Wrongs Act), which is the main legislation in Victoria that applies to common law claims for damages for personal injury in cases other than workplace injuries or transport accidents.
The Wrongs Act
The Wrongs Act is the principal statute governing claims for damages for economic and non-economic loss arising from personal injury and death in Victoria, as a result of negligence or fault. The Wrongs Act applies to cases involving claims for compensation such slips or falls in public places, and harm as a result of medical treatment. Where negligence is established damages can be awarded in the form of monetary compensation for the injuries sustained.
The Wrongs Act imposes several limits on access to compensation for economic and non-economic loss arising from personal injury and death in Victoria.
Damages for non-economic loss
Part VBA of the Wrongs Act provides for the recovery in limited circumstances of damages for non-economic loss, such as, pain and suffering, loss of amenities of life, or loss of enjoyment of life. Under Part VBA of the Wrongs Act, a person (the claimant) can only recover damages for non-economic loss caused by the fault of another person (the respondent) when the injury is a ‘significant injury’. A copy of the Wrongs Act is available on the Victorian Legislation and Parliamentary Documents website (External link)
What is a significant injury?
Injury means personal or bodily injury and includes: prenatal injury, psychological or psychiatric injury, disease and aggravation, acceleration or recurrence of an injury or disease.
Some injuries are defined to be significant injuries without any further assessment. These are loss of a foetus, loss of a breast or psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or foetus or child before, during or immediately after the birth and asbestos-related conditions.
For other kinds of injury, a determination of what constitutes a significant injury will usually require an assessment of the degree of impairment caused as a result of the injury.
Waiver of assessment
The Wrongs Act allows a respondent to agree to waive the requirement for an assessment of degree of impairment. A request by a claimant for the respondent to waive the assessment requirement must include the information prescribed in Regulation 7 of the Wrongs (Part VBA Claims) Regulations 2015. The Wrongs (Part VBA Claims) Regulations 2015 are available on the Victorian Legislation and Parliamentary Documents website (External link)
To request a waiver of assessment see Form 3 below.
If the injury is assessed, the degree of permanent impairment must satisfy the relevant threshold level in order to be a significant injury. The relevant threshold levels are ten percent or more (psychiatric injury), five per cent or more (spinal injuries), or more than five per cent (injuries other than psychiatric or spinal injuries).
An assessment of the degree of impairment must be made by an approved medical practitioner, who must follow certain guidelines and methods in order to make the assessment. All impairments from injuries arising from the same incident must be included in one assessment. However, psychiatric or psychological impairment that arises as a secondary consequence of a physical injury must be ignored in calculating the degree of impairment.
The approved medical practitioner must then provide the claimant with a certificate of assessment stating whether or not the degree of impairment satisfies the relevant threshold level. The practitioner must not state the specific degree of impairment in the certificate of assessment. A certificate may be issued whether or not all the injuries have stabilised.
The claimant must give the respondent a copy of any certificate of assessment that they intend to rely on.
The two types certificates that can be given are contained in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015, (see Forms 1 and 2 below):
- Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury (Form 1 in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015)
- Certificate of Assessment of Degree of Impairment where Injury has not Stabilised (Form 2 in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015)
These certificates must be served on the respondent accompanied by the ‘prescribed information’. The prescribed information is contained in Regulation 8 of the Wrongs (Part VBA Claims) Regulations 2015 (see Form 4 below).
Note that these forms and templates do not provide medical practitioners with all of the information relevant to making assessments under Part VBA of the Wrongs Act. Medical practitioners need to have undertaken an approved training course if they wish to make assessments under Part VBA of the Wrongs Act.
Referring a medical question to a medical panel
If the respondent receives a certificate of assessment from the claimant, the respondent can either accept the assessment or refer a medical question in relation to the assessment to a medical panel for determination.
In these circumstances, a ‘medical question’ means a question concerning whether or not the degree of impairment resulting from the injury to the claimant alleged in the claim satisfies the threshold level. The referral is made in writing and sets out the medical question and the information prescribed in Regulation 9 (Form 5). The template for Form 5 is available to download below. There is more information about the medical panel referral process available on the Medical Panels website (External link)
A medical panel is usually constituted by two or more medical practitioners who have been appointed to a list of practitioners eligible to be nominated to a medical panel by the Governor in Council. Once a matter has been referred to the panel, they may ask a claimant to meet with them to answer questions, to supply them with relevant documents or to submit to a medical examination by the panel or a member of the panel. The medical panel may also, with the consent of the claimant, ask a registered health practitioner who has examined the claimant to meet with the panel, answer questions or to supply relevant documents.
A medical panel is not bound by traditional evidence rules or practices but rather can inform itself on any matter it thinks fit. The medical panel must also act informally without regard to technicalities or legal forms.
The respondent who referred the medical question to the panel will be required to cover any fees and costs associated with the referral.
Medical panel determinations
After assessing the degree of impairment of a claimant, a medical panel may issue a certificate of determination on whether the degree of impairment satisfies or will (after injuries have stabilised) satisfy the threshold level. A panel must not state the specific degree of impairment when making this determination.
Where the panel is unable to determine the medical question (for example, because the injury has not stabilised and the panel cannot determine whether the degree of impairment will satisfy the threshold level once the injury stabilises), the panel may set a time for further assessment within 12 months from the first assessment.
The claimant must file certain documents in court in relation to a claim for damages for non-economic loss. These are set out in section 28LZM of the Wrongs Act, and include, where relevant, the certificate of assessment or agreement to waive assessment, a copy of the medical panel certificate of determination, a statement of deemed acceptance of the assessment or deemed significant injury.
A determination by a medical panel regarding the threshold level of impairment must be accepted by a court in any subsequent proceedings concerning the claim. However, there are limited rights to appeal from an opinion of a medical panel.
Application to court in special cases
A claimant may apply to a court for a determination of significant injury in certain limited circumstances. The court may determine significant injury if it is satisfied that the claim is urgent because of the imminent death of the claimant and the injury would be a significant injury.
Any person wishing to pursue or respond to a claim for damages for non-economic loss is advised to first seek independent legal advice. The information on this website does not constitute legal advice.
For further information, please refer to the Medical Panels website (External link)
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