personal-injury-at-work

Changes to Personal Injury Law

By Nicholas O’Bryan

In November 2015 the Victorian Parliament passed new law to make it easier for some personal injury claimants to get fairer compensation for injury caused by the negligence of another. This was done by making a number of amendments to the Wrongs Act (1958). The Act regulates in part the compensation entitlements for persons bringing medical negligence claims, public liability claims and other types of personal injury claims where the cause of action lies in Victoria. The Act does not apply to TAC claims or WorkCover claims.

Why the Changes to Personal Injury Law?

The changes in the law were made in response to an inquiry by the Victorian Competition Efficiency Commission which investigated the impact of previous amendments to the Wrongs Act in 2002 and 2003. The law was then tightened to reduce the number of personal injury claims and payouts with the stated aim of increasing the availability and affordability of public liability and professional indemnity insurance.

The Commission found that although the 2002/2003 amendments to the Wrongs Act had been successful in reducing claims (and hence insurance premiums) the restrictions in some cases had operated unfairly by excluding deserving claimants from compensation. The Commission recommended changes to the Act which it considered would benefit a small number of claimants injured by the negligence of others, but without adverse effect on the affordability of insurance.

Personal Injury Claimants to Benefit

The recent changes in the law will now make it easier for certain personal injury claimants to obtain compensation for their injuries. It does this by lowering the whole person impairment thresholds which must be satisfied in order for a person to recover compensation for pain and suffering and loss of enjoyment of life (called “non- economic loss”) for both spinal injury and psychiatric injury.

For spinal injury the impairment threshold has been lowered from “greater than 5%” to ‘’5% or more’’ to the whole person measured using the guides to the Evaluation of Permanent Impairment, 4th Edition (called the AMA Guides). The lowering of the threshold is particularly beneficial for claimants who suffer back injury, neck injury or other types of spinal injury who before often missed out on non-economic loss compensation despite suffering a permanent serious injury.

The new law also lowers the impairment threshold for psychiatric injuries from “greater than 10%” to “10% or more”. This change will probably allow a small number of extra claimants to recover non economic loss compensation for a psychiatric injury where previously they may have been excluded.

Other Changes Include

-Lifting the maximum amount of damages that can be awarded for non-economic loss from $497,780.00 to $577,050.00. This figure is indexed annually and would apply to a small number of claimants who have sustained catastrophic injury caused by the negligence of another.
-Alteration of the application of caps on damages for economic loss which in some cases had previously operated unfairly on claims by dependents and high income earners.
-Restoring the right to damages for the loss of capacity to care for others. This applies where injury to a parent or care giver means that the injured person can no longer provide gratuitous care to another (e.g. a child.) In such situations damages are now recoverable for this lost capacity.

Summary

In summary the amendments to the Wrongs Act will benefit a small number of personal injury claimants and will apply to Victorian injury compensation claims for:-
-Medical negligence;
-Public liability;
-Product liability;
-Occupiers liability;
-Other types of injury compensation claims other than TAC or WorkCover claims.

For further information contact Nicholas O’Bryan on 9200 2533 or by email at nobryan@galballyobryan.com.au.

This information is of a general nature only and will not reflect any changes to the law if made after the date of this article. It should not be relied upon as a substitute for discussing your situation with a qualified legal practitioner.