The Law Handbook 2024

Chapter 10.1: Negligence and injury 931 Restrictions on damages for non-economic loss The Wrongs Act places restrictions on the recovery of damages for non-economic loss (e.g. pain and suffering) (pt VBA). Such restrictions apply in all cases of damages for personal injury except for transport accident injuries, work injuries, asbestos- related conditions, and intentional sexual assault or misconduct cases (s 28LC). A claimant must have a ‘significant injury’ before being entitled to recover damages for non-economic loss pursuant to the Wrongs Act. Similarly to work injuries cases, non-psychiatric impairment is assessed pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition); in cases of psychiatric impairment, the Clinical Guidelines to the Rating of Psychiatric Impairment , prepared by the medical panel (psychiatry), Melbourne (October 1997) are used (both are referred to as ‘the Guides’). The threshold (or minimum) level for the recovery of damages in these cases is an impairment of five per cent or more for spinal injuries, more than five per cent for all other physical injuries, and 10 per cent or more for primary psychiatric injuries. Such impairment must be assessed by an approved medical practitioner and, if required, a medical panel as defined by the Wrongs Act (see ‘Assessment’, below). Injuries such as the loss of a breast or the loss of a foetus are specifically defined as being a ‘significant’ injury (s 28LF). There are also specific provisions for impairment being a loss of hearing (s 28LK). In assessing psychiatric impairment, it is necessary to disregard any psychiatric impairment or injury consequential on a physical injury (s 28LJ). If a respondent fails to refer the matter to the medical panel within the time permitted, it is deemed to have accepted the assessment. Assessment Generally, the degree of impairment assessment must be made by an approved medical practitioner as defined by the Wrongs Act (s 28LB, 28LG). All injuries arising out of the same incident must be included in the one assessment (s 28LL). In most cases, a claimant should obtain a certificate of assessment from an approved medical practitioner. The certificate should state whether the degree of impairment satisfies the threshold level but not state the specific degree of impairment (s 28LN). A certificate may be issued even if not all the injuries have stabilised (s 28LN). The Wrongs Act sets out a procedure whereby a claimant will generally serve a certificate of assessment on a person (including a company or other organisation or body) against whom a claim for damages is made (‘the respondent’). A court can stay the proceeding until the claimant serves the certificate of assessment and the required accompanying information (s 28LZMA). A respondent can waive the requirement for an assessment of degree of impairment (s 28LP) or dispute responsibility (s 28LQ). A court can also determine whether a claimant has suffered a significant injury in an urgent case where the death of the claimant is imminent, or in certain cases where the claimant has previously died (s 28LZN). If a certificate of assessment – together with a notice containing prescribed information about the claim – is served on a respondent, the assessment can be accepted or referred to a medical panel for an opinion on the assessment. Such response by a respondent must be in writing and occur within 60 days of service of the certificate and the prescribed information notice (s 28LW). The Wrongs Act sets out procedures for a medical panel to assess whether the impairment of the claimant satisfies the threshold level prescribed by the Wrongs Act (pt VBA div 5). Those procedures before a medical panel are similar to the medical panel procedures in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (s 28LZL) (see Chapter 10.3: Work injuries). A medical panel considering an application pursuant to the Wrongs Act gives its opinion on whether the degree of impairment satisfies (or will satisfy when the injury has stabilised) the threshold level, but must not state the specific degree of impairment (s 28LZG). Such an opinion is binding on any court as a determination whether or not the claimant has a significant injury (s 28LZH). Legal advice should be sought from a lawyer or community legal centre on procedures, including time limits, in cases involving a medical panel assessment of impairment under the Wrongs Act. There are very limited rights of appeal from an opinion of a medical panel (s 28LZI). A claimant must file in the court a copy of the certificate of assessment or the certificate of opinion of the medical panel sought to be relied upon. If a respondent is deemed to have accepted