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WRONGS AND OTHER ACTS (LAW OF NEGLIGENCE) BILL 2003

                                                                     PARLIAMENT OF VICTORIA

                                                       Wrongs and Other Acts (Law of Negligence) Act
                                                                          2003
Victorian Legislation and Parliamentary Documents




                                                                                        Act No.


                                                                            TABLE OF PROVISIONS
                                                    Clause                                                                    Page

                                                    PART 1--PRELIMINARY                                                          1
                                                      1.     Purposes                                                            1
                                                      2.     Commencement                                                        2

                                                    PART 2--AMENDMENTS TO WRONGS ACT 1958                                        3
                                                      3.     New Parts X, XI and XII inserted                                    3
                                                             PART X--NEGLIGENCE                                                  3
                                                             Division 1--Preliminary                                             3
                                                             43.      Definitions                                                3
                                                             44.      Application of Part                                        4
                                                             45.      Exclusions from Part                                       4
                                                             46.      Application to contract                                    5
                                                             47.      Effect of this Part on the common law                      6
                                                             Division 2--Duty of Care                                            6
                                                             48.      General principles                                         6
                                                             49.      Other principles                                           7
                                                             50.      Duty to warn of risk--reasonable care                      7
                                                             Division 3--Causation                                               8
                                                             51.      General principles                                         8
                                                             52.      Burden of proof                                            9
                                                             Division 4--Awareness of Risk                                       9
                                                             53.      Meaning of obvious risk                                    9
                                                             54.      Voluntary assumption of risk                               9
                                                             55.      No liability for materialisation of inherent risk         10
                                                             56.      Plaintiff to prove unawareness of risk                    10




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                                                    551109B.I1-31/10/2003                            BILL LA CIRCULATION 31/10/2003

 


 

Clause Page Division 5--Negligence of professionals and persons professing particular skills 11 Victorian Legislation and Parliamentary Documents 57. Definition 11 58. Standard of care to be expected of persons holding out as possessing a particular skill 12 59. Standard of care for professionals 12 60. Duty to warn of risk 13 Division 6--Non-delegable duties and vicarious liability 13 61. Liability based on non-delegable duty 13 Division 7--Contributory Negligence 14 62. Standard of care for contributory negligence 14 63. Contributory negligence can defeat claim 14 Division 8--General 14 64. Regulations 14 65. Supreme Court--limitation of jurisdiction 15 66. Transitional 15 PART XI--MENTAL HARM 16 67. Definitions 16 68. Application of Part 16 69. Exclusions from Part 17 70. Application to contract 18 71. Effect of this Part on the common law 18 72. Mental harm--duty of care 19 73. Limitation on recovery of damages for pure mental harm arising from shock 19 74. Limitation on recovery of damages for consequential mental harm 20 75. Liability for economic loss for mental harm 21 76. Regulations 21 77. Supreme Court--limitation of jurisdiction 21 78. Transitional 21 PART XII--LIABILITY OF PUBLIC AUTHORITIES 22 79. Definitions 22 80. Application of Part 23 81. Exclusions from Part 23 82. Effect of this Part on the common law 24 83. Principles concerning resources, responsibilities etc. of public authorities 24 84. Wrongful exercise of or failure to exercise function 25 ii 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Clause Page 85. Exercise of function or decision to exercise does not create duty 26 86. Supreme Court--limitation of jurisdiction 26 Victorian Legislation and Parliamentary Documents 87. Transitional 26 4. New sections 19A to 19C inserted 27 19A. Limitation on damages for loss of gratuitous care 27 19B. Calculation of damages for gratuitous care 28 19C. Application of sections 19A and 19B 29 5. New sections 23AA, 23AB and 23AC inserted 30 23AA. Regulations 30 23AB. Supreme Court--limitation of jurisdiction 30 23AC. Transitional for gratuitous care 30 6. Contribution--transitional 31 7. Contributory negligence 31 8. Definition 31 9. New section 28HA inserted 32 28HA. Tariffs for damages for non-economic loss 32 10. New sections 28ID to 28IF inserted 32 28ID. Limitation on damages for loss of capacity to provide care for others 32 28IE. Calculation of damages for gratuitous care 33 28IF. Application of sections 28ID and 28IE 34 11. Supreme Court--limitation of jurisdiction 35 12. New sections 28LAB and 28LAC inserted 35 28LAB. Transitional for tariffs for damages for non-economic loss 35 28LAC. Transitional for gratuitous care 36 13. Definitions 36 14. What is significant injury? 36 15. How is the degree of impairment to be assessed? 37 16. Certificate of assessment 37 17. New section 28LNA inserted 38 28LNA. Certificate where injury not stabilised 38 18. Agreement to waive assessment 39 19. What if the respondent asks for more information? 39 20. Repeal of section 28LS 39 21. Information to be provided to respondent 40 22. Limitation period suspended 40 23. New section 28LW substituted and sections 28LWA to 28LWE inserted 41 28LW. Response to medical assessment 41 28LWA. What if the respondent asks for more information? 42 28LWB. What if the respondent disputes responsibility? 42 28LWC. Can a respondent bind any other respondent? 43 28LWD. Statement not admission of liability 44 28LWE. Referral of medical question to Medical Panel 44 24. References to opinion 45 iii 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Clause Page 25. Respondent to pay fees and costs of referral 45 26. New section 28LXA inserted 45 28LXA. Administration 45 Victorian Legislation and Parliamentary Documents 27. Procedure of Medical Panel 47 28. Respondent to provide information to Medical Panel 48 29. Request to claimant 49 30. Request to registered health practitioner 49 31. New section 28LZG substituted and section 28LZGA inserted 49 28LZG. Determination of Panel 49 28LZGA. Further assessment 52 32. Operation of Panel provisions of Accident Compensation 52 Act 1985 33. Provision of assessment information to court 53 34. Regulations 53 35. Transitional 53 PART 3--AMENDMENTS TO WRONGS AND LIMITATION OF ACTIONS ACTS (INSURANCE REFORM) ACT 2003 54 36. Definition 54 37. Application of Part 54 38. Liability for contributory negligence 54 PART 4--AMENDMENTS TO VICTORIAN MANAGED INSURANCE AUTHORITY ACT 1996 55 39. Functions of Authority 55 40. New section 25A inserted 55 25A. Provision of insurance and indemnities for other persons or bodies 55 PART 5--AMENDMENTS TO BUILDING ACT 1993 57 41. Definition of required insurance 57 42. New section 137AA inserted 57 137AA. Insurance for domestic building work to be provided by designated insurers 57 ENDNOTES 60 iv 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 28 October 2003 Victorian Legislation and Parliamentary Documents A BILL to amend the Wrongs Act 1958, the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, the Victorian Managed Insurance Authority Act 1996 and the Building Act 1993 and for other purposes. Wrongs and Other Acts (Law of Negligence) Act 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 in relation 5 to-- (i) negligence; 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003 1

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 1--Preliminary s. 2 (ii) contributory negligence; (iii) mental harm; Victorian Legislation and Parliamentary Documents (iv) the liability of public authorities; (v) damages for injury or death; 5 (b) to amend the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 in relation to proportionate liability; (c) to amend the Victorian Managed Insurance Authority Act 1996 to empower 10 the Authority to insure or indemnify other persons and bodies; (d) to amend the Building Act 1993 in relation to insurance for domestic building work. 2. Commencement 15 (1) This Act (except sections 6 and 14(2) and Part 5) comes into operation on the day after the day on which it receives the Royal Assent. (2) Section 6 is deemed to have come into operation on 1 October 2003. 20 (3) Section 14(2) is deemed to have come into operation on 21 May 2003. (4) Subject to sub-section (5), Part 5 comes into operation on a day to be proclaimed. (5) If Part 5 does not come into operation before 25 1 January 2005, it comes into operation on that day. __________________ 2 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 PART 2--AMENDMENTS TO WRONGS ACT 1958 Victorian Legislation and Parliamentary Documents 3. New Parts X, XI and XII inserted See: After Part IX of the Wrongs Act 1958 insert-- Act No. 6420. 'PART X--NEGLIGENCE Reprint No. 8 as at 16 June 2003 5 and Division 1--Preliminary amending Act No. 60/2003. 43. Definitions LawToday: www.dms. In this Part-- dpc.vic. gov.au "court" includes tribunal, and, in relation to a claim for damages, means any court 10 or tribunal by or before which the claim falls to be determined; "damages" includes any form of monetary compensation; "harm" means harm of any kind and 15 includes-- (a) injury or death; and (b) damage to property; and (c) economic loss; "injury" means personal or bodily injury 20 and includes-- (a) pre-natal injury; and (b) psychological or psychiatric injury; and (c) disease; and 25 (d) aggravation, acceleration or recurrence of an injury or disease; "negligence" means failure to exercise reasonable care. 3 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 44. Application of Part This Part applies to any claim for damages Victorian Legislation and Parliamentary Documents resulting from negligence, regardless of whether the claim is brought in tort, in 5 contract, under statute or otherwise. 45. Exclusions from Part (1) This Part does not apply to the following claims for damages-- (a) a claim to which Part 3, 6 or 10 of the 10 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 15 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; 20 (d) a claim in respect of an injury which entitles, or may entitle, a person or a dependant of a person to compensation under any of the following-- (i) Part V of the Country Fire 25 Authority Act 1958 or the regulations made under that Act; (ii) Part 3 of the Victoria State Emergency Service Act 1987; (iii) Part 6 of the Emergency 30 Management Act 1986; (iv) the Police Assistance Compensation Act 1968; 4 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (v) Part 8 of the Juries Act 2000 or Part VII of the Juries Act 1967; Victorian Legislation and Parliamentary Documents (vi) Division 6 of Part II of the Education Act 1958; 5 (e) subject to sub-section (2), a claim for damages in respect of an injury that is a dust-related condition within the meaning of the Administration and Probate Act 1958; or 10 (f) subject to sub-section (2), a claim 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 15 to tobacco smoke. (2) A claim for damages referred to in sub- section (1)(e) or (1)(f) does not include a claim for damages that relates to the provision of or the failure to provide a health 20 service. (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. 46. Application to contract 25 (1) This Part does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract (the express provision) in relation to any matter to which this Part 30 applies and does not limit or otherwise affect the operation of the express provision. (2) Sub-section (1) extends to any provision of this Part even if the provision applies to liability in contract. 5 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 47. Effect of this Part on the common law Except as provided by this Part, this Part is Victorian Legislation and Parliamentary Documents not intended to affect the common law. Division 2--Duty of Care 5 48. General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless-- (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought 10 to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. 15 (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-- (a) the probability that the harm would 20 occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that 25 creates the risk of harm. (3) For the purposes of sub-section (1)(b)-- (a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and 6 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, Victorian Legislation and Parliamentary Documents significant risks. 5 49. Other principles In a proceeding relating to liability for negligence-- (a) the burden of taking precautions to avoid a risk of harm includes the 10 burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a 15 different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken 20 earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 25 50. Duty to warn of risk--reasonable care A person (the defendant) who owes a duty of care to another person (the plaintiff) to give a warning or other information to the plaintiff in respect of a risk or other matter, 30 satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information. 7 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 Division 3--Causation 51. General principles Victorian Legislation and Parliamentary Documents (1) A determination that negligence caused particular harm comprises the following 5 elements-- (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the 10 negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be 15 established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the 20 harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured 25 person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. (4) For the purpose of determining the scope of 30 liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 8 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 52. Burden of proof In determining liability for negligence, the Victorian Legislation and Parliamentary Documents plaintiff always bears the burden of proving, on the balance of probabilities, any fact 5 relevant to the issue of causation. Division 4--Awareness of Risk 53. Meaning of obvious risk (1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk 10 that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. 15 (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives 20 rise to the risk) is not prominent, conspicuous or physically observable. (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created 25 because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. 54. Voluntary assumption of risk 30 (1) If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is 9 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of Victorian Legislation and Parliamentary Documents the risk. 5 (2) Sub-section (1) does not apply to-- (a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or 10 (b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another. (3) Without limiting section 47, the common law continues to apply, unaffected by sub- 15 section (1), to a proceeding referred to in sub-section (2). 55. No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm 20 suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care. 25 (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. 56. Plaintiff to prove unawareness of risk (1) In any proceeding where, for the purpose of 30 establishing that a person (the defendant) has breached a duty of care owed to a person who suffered harm (the plaintiff), the plaintiff alleges that the defendant has-- 10 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (a) failed to give a warning about a risk of harm to the plaintiff; or Victorian Legislation and Parliamentary Documents (b) failed to give other information to the plaintiff-- 5 the plaintiff bears the burden of proving, on the balance of probabilities, that the plaintiff was not aware of the risk or information. (2) Sub-section (1) does not apply to a proceeding on a claim for damages in respect 10 of risks associated with work done by one person for another. (3) Despite sub-section (2), sub-section (1) applies to a proceeding referred to in sub- section (2) if the proceeding relates to the 15 provision of or the failure to provide a health service. (4) Without limiting section 47, the common law continues to apply, unaffected by sub- section (1), to a proceeding referred to in 20 sub-section (2) to which sub-section (1) does not apply. (5) Nothing in this section is intended to alter any duty of care to give a warning of a risk of harm or other information. 25 Division 5--Negligence of professionals and persons professing particular skills 57. Definition In this Division "professional" means an individual practising a profession. 11 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 58. Standard of care to be expected of persons holding out as possessing a particular skill Victorian Legislation and Parliamentary Documents In a case involving an allegation of negligence against a person (the defendant) 5 who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by 10 reference to-- (a) what could reasonably be expected of a person possessing that skill; and (b) the relevant circumstances as at the date of the alleged negligence and not a later 15 date. 59. Standard of care for professionals (1) A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at 20 the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances. 25 (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable. (3) The fact that there are differing peer 30 professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being 35 relied on for the purposes of this section. 12 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. Victorian Legislation and Parliamentary Documents (5) If, under this section, a court determines peer 5 professional opinion to be unreasonable, it must specify in writing the reasons for that determination. (6) Sub-section (5) does not apply if a jury determines the matter. 10 60. Duty to warn of risk Section 59 does not apply to a liability arising in connection with the giving of (or the failure to give) a warning or other information in respect of a risk or other 15 matter to a person if the giving of the warning or information is associated with the provision by a professional of a professional service. Division 6--Non-delegable duties and vicarious 20 liability 61. Liability based on non-delegable duty (1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken 25 by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the defendant were vicariously liable for the negligence of the 30 person in connection with the performance of the work or task. (2) This section applies to a claim for damages in tort whether or not it is a claim for damages resulting from negligence, despite 35 anything to the contrary in section 44. 13 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 Division 7--Contributory Negligence 62. Standard of care for contributory Victorian Legislation and Parliamentary Documents negligence (1) The principles that are applicable in 5 determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. 10 (2) For that purpose-- (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and 15 (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 63. Contributory negligence can defeat claim In determining the extent of a reduction in 20 damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 25 Division 8--General 64. Regulations The Governor in Council may make regulations generally prescribing any matter or thing required or permitted by this Part to 30 be prescribed or necessary to be prescribed to give effect to this Part. 14 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 65. Supreme Court--limitation of jurisdiction It is the intention of sections 48(2), 51(2), Victorian Legislation and Parliamentary Documents 51(3), 51(4), 58, 59(5) and 62 to alter or vary section 85 of the Constitution Act 1975. 5 66. Transitional (1) This Part extends to negligence arising before, on or after the commencement day. (2) Section 61 extends to liability in tort arising before, on or after the commencement day. 10 (3) Despite sub-sections (1) and (2), this Part does not apply to proceedings commenced in a court before the commencement day. (4) In this section "commencement day" means the day on which section 3 of the 15 Wrongs and Other Acts (Law of Negligence) Act 2003 comes into operation. __________________ 15 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 PART XI--MENTAL HARM Victorian Legislation and Parliamentary Documents 67. Definitions In this Part-- "consequential mental harm" means 5 mental harm that is a consequence of an injury of any other kind; "court" includes tribunal, and, in relation to a claim for damages, means any court or tribunal by or before which the claim 10 falls to be determined; "damages" includes any form of monetary compensation; "injury" means personal or bodily injury and includes-- 15 (a) pre-natal injury; and (b) psychological or psychiatric injury; and (c) disease; and (d) aggravation, acceleration or 20 recurrence of an injury or disease; "mental harm" means psychological or psychiatric injury; "negligence" means failure to exercise reasonable care; 25 "pure mental harm" means mental harm other than consequential mental harm. 68. Application of Part This Part applies to any claim for damages resulting from negligence, regardless of 30 whether the claim is brought in tort, in contract, under statute or otherwise. 16 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 69. Exclusions from Part (1) This Part does not apply to the following Victorian Legislation and Parliamentary Documents claims for damages-- (a) a claim to which Part 3, 6 or 10 of the 5 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 10 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; 15 (d) a claim in respect of an injury which entitles, or may entitle, a person or a dependant of a person to compensation under any of the following-- (i) Part V of the Country Fire 20 Authority Act 1958 or the regulations made under that Act; (ii) Part 3 of the Victoria State Emergency Service Act 1987; (iii) Part 6 of the Emergency 25 Management Act 1986; (iv) the Police Assistance Compensation Act 1968; (v) Part 8 of the Juries Act 2000 or Part VII of the Juries Act 1967; 30 (vi) Division 6 of Part II of the Education Act 1958; 17 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (e) subject to sub-section (2), a claim for damages in respect of an injury that is a dust-related condition within the Victorian Legislation and Parliamentary Documents meaning of the Administration and 5 Probate Act 1958; or (f) subject to sub-section (2), a claim for damages in respect of an injury resulting from smoking or other use of tobacco products, within the meaning 10 of the Tobacco Act 1987, or exposure to tobacco smoke. (2) A claim for damages referred to in sub- section (1)(e) or (1)(f) does not include a claim for damages that relates to the 15 provision of or the failure to provide a health service. (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. 20 70. Application to contract (1) This Part does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract (the express provision) in 25 relation to any matter to which this Part applies and does not limit or otherwise affect the operation of the express provision. (2) Sub-section (1) extends to any provision of this Part even if the provision applies to 30 liability in contract. 71. Effect of this Part on the common law Except as provided by this Part, this Part is not intended to affect the common law. 18 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 72. Mental harm--duty of care (1) A person (the defendant) does not owe a Victorian Legislation and Parliamentary Documents duty to another person (the plaintiff) to take care not to cause the plaintiff pure mental 5 harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. 10 (2) For the purposes of the application of this section, the circumstances of the case include the following-- (a) whether or not the mental harm was suffered as the result of a sudden shock; 15 (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; (c) the nature of the relationship between the plaintiff and any person killed, 20 injured or put in danger; (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) This section does not affect the duty of care 25 of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude. 73. Limitation on recovery of damages for 30 pure mental harm arising from shock (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in 35 connection with another person (the victim) 19 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 being killed, injured or put in danger by the act or omission of the defendant. Victorian Legislation and Parliamentary Documents (2) The plaintiff is not entitled to recover damages for pure mental harm unless-- 5 (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or (b) the plaintiff is or was in a close relationship with the victim. 10 (3) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this 15 Act or any other written or unwritten law. 74. Limitation on recovery of damages for consequential mental harm (1) A person (the plaintiff) is not entitled to recover damages from another person (the 20 defendant) for consequential mental harm unless-- (a) the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of 25 the case, suffer a recognised psychiatric illness if reasonable care were not taken; or (b) the defendant knew, or ought to have known, that the plaintiff is a person of 30 less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not 35 taken. 20 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (2) For the purposes of the application of this section, the circumstances of the case include the injury to the plaintiff out of which the Victorian Legislation and Parliamentary Documents mental harm arose. 5 75. Liability for economic loss for mental harm A court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of 10 a recognised psychiatric illness. 76. Regulations The Governor in Council may make regulations generally prescribing any matter or thing required or permitted by this Part to 15 be prescribed or necessary to be prescribed to give effect to this Part. 77. Supreme Court--limitation of jurisdiction It is the intention of sections 73, 74 and 75 to alter or vary section 85 of the Constitution 20 Act 1975. 78. Transitional (1) This Part extends to negligence arising before, on or after the commencement day. (2) Despite sub-section (1), this Part does not 25 apply to proceedings commenced in a court before the commencement day. (3) In this section "commencement day" means the day on which section 3 of the Wrongs and Other Acts (Law of 30 Negligence) Act 2003 comes into operation. __________________ 21 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 PART XII--LIABILITY OF PUBLIC AUTHORITIES Victorian Legislation and Parliamentary Documents 79. Definitions In this Part-- 5 "damages" includes any form of monetary compensation; "exercise" in relation to a function includes perform a duty; "function" includes a power, authority or 10 duty; "negligence" means failure to exercise reasonable care; "public authority" means-- (a) the Crown; 15 (b) an Agency within the meaning of the Public Sector Management and Employment Act 1998; (c) a body, whether corporate or unincorporate, that is established 20 by or under an Act for a public purpose; (d) a Council within the meaning of the Local Government Act 1989; (e) a body established or appointed 25 for a public purpose by the Governor in Council or by a Minister, otherwise than under an Act; (f) a person holding an office or 30 position established by or under an Act; 22 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (g) a person holding an office or position to which he or she was appointed by the Governor in Victorian Legislation and Parliamentary Documents Council or a Minister otherwise 5 than under an Act; (h) any other person or body prescribed (or of a class prescribed) as an authority to which this Part applies (in respect 10 of all or specified functions); (i) any person or body in respect of the exercise of a public or other function of a class prescribed for the purpose of this Part. 15 80. Application of Part (1) This Part (except section 84) applies to any claim for damages resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. 20 (2) Sub-section (1) and section 84 do not apply if the relevant enactment contains express provision to the contrary. 81. Exclusions from Part (1) This Part does not apply to the following 25 claims for damages-- (a) subject to sub-section (2), a claim for damages in respect of an injury that is a dust-related condition within the meaning of the Administration and 30 Probate Act 1958; or (b) subject to sub-section (2), a claim for damages in respect of an injury resulting from smoking or other use of tobacco products, within the meaning 23 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 of the Tobacco Act 1987, or exposure to tobacco smoke. Victorian Legislation and Parliamentary Documents (2) A claim for damages referred to in sub- section (1)(a) or (1)(b) does not include a 5 claim for damages that relates to the provision of or the failure to provide a health service. (3) This Part does not apply to a public authority or class of public authority-- 10 (a) that is excluded by the regulations from the operation of this Part in respect of all of its functions; or (b) in respect of specified functions or functions of a specified class, if the 15 regulations exclude those functions or that class of functions from the operation of this Part in respect of that public authority or class of public authority. 20 82. Effect of this Part on the common law Except as provided by sections 83, 84 and 85, this Part is not intended to affect the common law. 83. Principles concerning resources, 25 responsibilities etc. of public authorities In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (amongst other relevant things)-- 30 (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those 35 functions; 24 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 (b) the functions required to be exercised by the authority are to be determined by reference to the broad range of its Victorian Legislation and Parliamentary Documents activities (and not merely by reference 5 to the matter to which the proceeding relates); (c) the authority may rely on evidence of its compliance with the general procedures and applicable standards for 10 the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. 84. Wrongful exercise of or failure to exercise 15 function (1) This section applies to a proceeding for damages for an alleged breach of statutory duty by a public authority in connection with the exercise of or a failure to exercise a 20 function of the authority. (2) For the purpose of the proceeding, an act or omission of the public authority relating to a function conferred on the public authority specifically in its capacity as a public 25 authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority having the functions of the authority in question could properly consider 30 the act or omission to be a reasonable exercise of its functions. (3) For the purpose of the proceeding the public authority is not liable for damages caused by the wrongful exercise of or failure to 35 exercise a function of the authority unless the provisions and policy of the enactment in which the duty to exercise the function is 25 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 3 created are compatible with the existence of that liability. Victorian Legislation and Parliamentary Documents (4) Despite sub-section (1), sub-section (2) does not apply to a statutory duty that is imposed 5 as an absolute duty on the public authority to do or not to do a particular thing. 85. Exercise of function or decision to exercise does not create duty In a proceeding, the fact that a public 10 authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a 15 particular way. 86. Supreme Court--limitation of jurisdiction It is the intention of section 83 to alter or vary section 85 of the Constitution Act 1975. 20 87. Transitional (1) This Part extends to negligence arising before, on or after the commencement day. (2) Section 84 extends to an act or omission occurring before, on or after the 25 commencement day. (3) Despite sub-sections (1) and (2), this Part does not apply to proceedings commenced in a court before the commencement day. (4) In this section "commencement day" 30 means the day on which section 3 of the Wrongs and Other Acts (Law of Negligence) Act 2003 comes into operation.'. 26 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 4 4. New sections 19A to 19C inserted After section 19 of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents insert-- "19A. Limitation on damages for loss of 5 gratuitous care In an action under this Part, no damages may be awarded for a loss of gratuitous care provided or to be provided by the deceased to his or her dependants unless the court is 10 satisfied that-- (a) the care-- (i) was provided to the dependants; and (ii) was being provided for at least 15 6 hours per week; and (iii) had been provided for at least 6 consecutive months before the death, or the injury that caused the death, to which the damages 20 relate; or (b) there is a reasonable expectation that, but for the death, or the injury that caused the death, of the deceased, the gratuitous care would have been 25 provided to the dependants-- (i) for at least 6 hours per week; and (ii) for a period of at least 6 consecutive months. 27 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 4 19B. Calculation of damages for gratuitous care Victorian Legislation and Parliamentary Documents (1) If, in an action under this Part, the court is satisfied that the deceased would (if death, or 5 the injury that caused the death, had not ensued) have provided gratuitous care to his or her dependants for not less than 40 hours per week, the amount of damages that may be awarded for the loss of that care must not 10 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 15 for-- (i) in respect of the whole or any part of a quarter occurring between the date of the death in relation to which the award is made and the 20 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 25 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 30 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 35 (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed 28 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 4 amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. Victorian Legislation and Parliamentary Documents (2) If, in an action under this Part, the court is 5 satisfied that the deceased would have provided gratuitous care to his or her dependants for less than 40 hours per week, the amount of damages that may be awarded for the loss of that care must not exceed the 10 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. 19C. Application of sections 19A and 19B 15 (1) Except as provided by sections 19A and 19B, nothing in those sections affects any other law relating to damages arising from loss of gratuitous care. (2) Sections 19A and 19B do not apply to the 20 following actions for damages-- (a) subject to sub-section (3), an action for damages in respect of an injury that is a dust-related condition within the meaning of the Administration and 25 Probate Act 1958; or (b) subject to sub-section (3), an action for damages in respect of an injury resulting from smoking or other use of tobacco products, within the meaning 30 of the Tobacco Act 1987, or exposure to tobacco smoke. (3) An action for damages referred to in sub- section (2)(a) or (2)(b) does not include an action for damages that relates to the 35 provision of or the failure to provide a health service.". 29 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 5 5. New sections 23AA, 23AB and 23AC inserted After section 23 of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents insert-- "23AA. Regulations 5 (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. 10 (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 15 the regulations, any matter contained in any document as existing or in force-- (i) from time to time; or (ii) at a particular time. 23AB. Supreme Court--limitation of jurisdiction 20 It is the intention of sections 19A and 19B to alter or vary section 85 of the Constitution Act 1975. 23AC. Transitional for gratuitous care (1) Sections 19A and 19B extend to an award of 25 damages that relates to a death occurring before, on or after the commencement of section 4 of the Wrongs and Other Acts (Law of Negligence) Act 2003. 30 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 6 (2) Despite sub-section (1), sections 19A and 19B do not apply to an award of damages in proceedings commenced in a court before Victorian Legislation and Parliamentary Documents the commencement of section 4 of the 5 Wrongs and Other Acts (Law of Negligence) Act 2003.". 6. Contribution--transitional After section 24(4) of the Wrongs Act 1958 insert-- 10 "(5) For the removal of doubt, if an action (the existing action) was commenced in a court against the first-mentioned person referred to in sub-section (4) before 1 October 2003, the period referred to in sub-section (4)(a)(i) is 15 to be taken to be the period within which the existing action might have been brought at the time the existing action was brought.". 7. Contributory negligence (1) In section 26(1)(a) of the Wrongs Act 1958 20 before "a claim" insert "except as provided in section 63,". (2) At the end of section 26 of the Wrongs Act 1958 insert-- "Note: Division 7 of Part X also contains provisions relating 25 to contributory negligence.". 8. Definition In section 28B of the Wrongs Act 1958 insert the following definition-- ' "dependants" in relation to a claimant, means 30 any persons who are wholly, mainly or in part dependent on the claimant at the time of the injury;'. 31 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 9 9. New section 28HA inserted After section 28H of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents insert-- "28HA. Tariffs for damages for non-economic loss 5 (1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. 10 (2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards for damages for non-economic loss in those earlier proceedings. 15 (3) This section does not alter the rules for the determination of other damages.". 10. New sections 28ID to 28IF inserted After section 28IC of the Wrongs Act 1958 insert-- 20 "28ID. Limitation on damages for loss of capacity to provide care for others No damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous care for others unless the 25 court is satisfied that-- (a) the care-- (i) was provided to the claimant's dependants; and (ii) was being provided for at least 30 6 hours per week; and 32 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 10 (iii) had been provided for at least 6 consecutive months before the injury to which the damages Victorian Legislation and Parliamentary Documents relate; or 5 (b) 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-- 10 (i) for at least 6 hours per week; and (ii) for a period of at least 6 consecutive months. 28IE. Calculation of damages for gratuitous care 15 (1) If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for not less than 40 hours per week, the amount of damages that may be awarded to the claimant for any loss of the 20 claimant's capacity to provide that care must not exceed-- (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total 25 earnings of all employees in Victoria for-- (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to 30 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 35 the award, available to the court 33 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 10 making the award--that quarter; or Victorian Legislation and Parliamentary Documents (ii) in respect of the whole or any part of any other quarter--the most 5 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 10 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 15 such manner or by reference to such matters, or both, as may be prescribed. (2) If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for less than 40 hours per week, 20 the amount of damages that may be awarded to a claimant for the loss of the claimant's capacity to provide that care must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in 25 accordance with sub-section (1)(a) or (b), as the case requires. 28IF. Application of sections 28ID and 28IE (1) Except as provided by sections 28ID and 28IE, nothing in those sections affects any 30 other law relating to damages arising from a loss of capacity to provide gratuitous care. (2) Sections 28ID and 28IE do not apply to the following actions for damages-- (a) subject to sub-section (3), an action for 35 damages in respect of an injury that is a dust-related condition within the 34 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 11 meaning of the Administration and Probate Act 1958; or Victorian Legislation and Parliamentary Documents (b) subject to sub-section (3), an action for damages in respect of an injury 5 resulting from smoking or other use of tobacco products, within the meaning of the Tobacco Act 1987, or exposure to tobacco smoke. (3) An action for damages referred to in sub- 10 section (2)(a) or (2)(b) does not include an action for damages that relates to the provision of or the failure to provide a health service.". 11. Supreme Court--limitation of jurisdiction 15 After section 28J(2) of the Wrongs Act 1958 insert-- "(3) It is the intention of section 28D (as affected by the amendments made to this Part by section 10 of the Wrongs and Other Acts 20 (Law of Negligence) Act 2003) to alter or vary section 85 of the Constitution Act 1975.". 12. New sections 28LAB and 28LAC inserted After section 28LA of the Wrongs Act 1958 25 insert-- "28LAB. Transitional for tariffs for damages for non-economic loss Despite section 28L(1), section 28HA does not apply to an award of damages in 30 proceedings commenced in a court before the commencement of section 9 of the Wrongs and Other Acts (Law of Negligence) Act 2003. 35 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 13 28LAC. Transitional for gratuitous care Despite section 28L(1), sections 28ID and Victorian Legislation and Parliamentary Documents 28IE do not apply to an award of damages in proceedings commenced in a court before 5 the commencement of section 10 of the Wrongs and Other Acts (Law of Negligence) Act 2003.". 13. Definitions (1) In section 28LB of the Wrongs Act 1958 in the 10 definition of "certificate of assessment" after "section 28LN" insert "or 28LNA". (2) In section 28LB of the Wrongs Act 1958 insert the following definition-- ' "impairment" means permanent impairment;'. 15 (3) In section 28LB of the Wrongs Act 1958 for the definition of "medical question" substitute-- ' "medical question" in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury 20 to the claimant alleged in the claim satisfies the threshold level;'. 14. What is significant injury? (1) After section 28LF(1)(a) of the Wrongs Act 1958 insert-- 25 "(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or". 36 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 15 (2) After section 28LF(1)(c) of the Wrongs Act 1958 insert-- Victorian Legislation and Parliamentary Documents "(ca) the injury is psychological or psychiatric injury arising from the loss of a child due to 5 an injury to the mother or the foetus or the child before, during or immediately after the birth; or". (3) After section 28LF(2)(a) of the Wrongs Act 1958 insert-- 10 "(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or". 15 (4) After section 28LF(3)(a) of the Wrongs Act 1958 insert-- "(aa) the injury is deemed under section 28LZG(10) or 28LZGA(4) to be significant injury; or". 20 15. How is the degree of impairment to be assessed? (1) In section 28LH of the Wrongs Act 1958 before "impairment" insert "degree of". (2) At the end of section 28LH of the Wrongs Act 1958 insert-- 25 "(2) Nothing in sub-section (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all of the injuries to the person have stabilised.". 16. Certificate of assessment 30 (1) In section 28LN(1) of the Wrongs Act 1958 for "An approved" substitute "Subject to section 28LNA and this section, an approved". 37 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 17 (2) After section 28LN(2) of the Wrongs Act 1958 insert-- Victorian Legislation and Parliamentary Documents "(3) If not all the injuries to a person have stabilised, a certificate of assessment can 5 only be provided under this section in respect of the person if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.". 10 17. New section 28LNA inserted After section 28LN of the Wrongs Act 1958 insert-- "28LNA. Certificate where injury not stabilised (1) This section applies if, after making an 15 assessment of degree of impairment under this Part, an approved medical practitioner is unable to determine the degree of impairment because the injury has not stabilised. 20 (2) If, at the end of 6 months after that first assessment, an approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will 25 satisfy the threshold level once the injury has stabilised, that approved medical practitioner may issue a certificate of assessment under this section. (3) The certificate of assessment must state that 30 the approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has 35 stabilised.". 38 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 18 18. Agreement to waive assessment (1) After section 28LO(1) of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents insert-- "(1A) A request under sub-section (1) must be in 5 the prescribed form (if any) and include the prescribed information (if any).". (2) In section 28LO(2) and 28LO(4) of the Wrongs Act 1958 for "30 days" substitute "60 days". (3) In section 28LO(3)(c) of the Wrongs Act 1958 10 for "contained in the notice of claim" substitute "contained in the request". (4) After section 28LO(4) of the Wrongs Act 1958 insert-- "(5) Information prescribed for the purposes of 15 sub-section (1A) may include information relating to-- (a) the identity of the claimant; (b) the nature of the claim; (c) the injury; 20 (d) the incident out of which the alleged injury arose; (e) any medical practitioner who has treated the injury.". 19. What if the respondent asks for more information? 25 In sections 28LP(2) and 28LP(3) of the Wrongs Act 1958 for "30 days" substitute "60 days". 20. Repeal of section 28LS Section 28LS of the Wrongs Act 1958 is repealed. 39 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 21 21. Information to be provided to respondent At the end of section 28LT of the Wrongs Act Victorian Legislation and Parliamentary Documents 1958 insert-- "(2) The copy of the certificate of assessment 5 must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO. 10 (3) The information prescribed for the purposes of sub-section (2) may include information relating to-- (a) the identity of the claimant; (b) the nature of the claim; 15 (c) the injury; (d) the incident out of which the alleged injury arose; (e) any medical practitioner who has treated the injury.". 20 22. Limitation period suspended In section 28LV of the Wrongs Act 1958-- (a) in paragraph (a) after "section 28LW" insert ", 28LWA or 28LWB"; (b) in paragraph (b) for "or 28LZA" substitute 25 ", 28LWA, 28LWB, 28LZA or 28LZGA"; (c) in paragraphs (c) and (d) for "opinion" (wherever occurring) substitute "determination". 40 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 23 23. New section 28LW substituted and sections 28LWA to 28LWE inserted Victorian Legislation and Parliamentary Documents For section 28LW of the Wrongs Act 1958 substitute-- 5 "28LW. Response to medical assessment (1) The respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the 10 required information under section 28LT. (2) The response to the claimant must-- (a) state that the respondent is a proper respondent to the claim and state that the respondent accepts the assessment 15 for the purposes of this Part; or (b) state that the respondent is a proper respondent to the claim and advise the claimant that the respondent intends to refer or has referred a medical question 20 in relation to the assessment to a Medical Panel for determination under this Part; or (c) if the respondent is unable to decide, on the information provided with the 25 certificate of assessment, 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 30 is a proper respondent to the claim; or (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 35 information that may help the claimant to identify the proper respondent. 41 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 23 (3) The respondent must state that the respondent is a proper respondent to a claim if the respondent has already stated under Victorian Legislation and Parliamentary Documents section 28LO or 28LP that the respondent is 5 a proper respondent to the claim. (4) If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment. 10 28LWA. What if the respondent asks for more information? (1) If, under section 28LW(2)(c), a respondent advises a claimant that specified further information is needed, the claimant must 15 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 20 set out in section 28LW(2)(a), (b) or (d) within 60 days after receiving the information. (3) If the respondent fails to respond in writing under this section within the 60 days, the 25 respondent is deemed to have accepted the assessment. 28LWB. What if the respondent disputes responsibility? (1) If a respondent responds in accordance with 30 section 28LW(2)(d), the claimant must give written notice to the respondent, within 14 days after receiving the response, that either-- 42 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 23 (a) on the information available to the claimant, the claimant accepts that the respondent is not a proper respondent to Victorian Legislation and Parliamentary Documents the claim; or 5 (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 10 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 is a proper respondent to the claim and state that 15 the respondent accepts the assessment for the purposes of this Part; or (b) state that the respondent is a proper respondent to the claim and advise the claimant that the respondent has 20 referred or intends to refer a medical question in relation to the assessment to a Medical Panel for determination under this Part. (4) If the respondent fails to respond within the 25 14 days, the respondent is deemed to have accepted the assessment. 28LWC. Can a respondent bind any other respondent? An acceptance under this Division by a 30 respondent to a claim of an assessment does not bind any other respondent. 43 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 23 28LWD. Statement not admission of liability A statement under this Division that a Victorian Legislation and Parliamentary Documents respondent is a proper respondent to a claim is not an admission of liability in respect of 5 the claim. 28LWE. Referral of medical question to Medical Panel (1) The respondent on whom a copy of the certificate of assessment is served may refer 10 a medical question in relation to the assessment to a Medical Panel for determination under this Part-- (a) within 60 days after receiving the certificate and the required information 15 under section 28LT; or (b) within 60 days after receiving the information provided under section 28LWA; or (c) within 14 days after receiving the 20 notice under section 28LWB. (2) The respondent may not refer a medical question in relation to the assessment to a Medical Panel if the respondent has accepted the assessment or is deemed to have accepted 25 the assessment under this Division. (3) If the respondent advises the claimant under section 28LW, 28LWA or 28LWB that the respondent intends to refer a medical question in relation to the assessment to a 30 Medical Panel and does not refer the question within the required time under this section, the respondent is deemed to have accepted the assessment under this Division at the expiration of that required time.". 44 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 24 24. References to opinion In sections 28LX, 28LZF(a) and 28LZM(3) of the Victorian Legislation and Parliamentary Documents Wrongs Act 1958 for "opinion" (wherever occurring) substitute "determination". 5 25. Respondent to pay fees and costs of referral In section 28LX of the Wrongs Act 1958 for "costs of" (where first occurring) substitute "fees and costs payable in accordance with section 28LXA for". 10 26. New section 28LXA inserted After section 28LX of the Wrongs Act 1958 insert-- "28LXA. Administration (1) The Minister, on the recommendation of the 15 Convenor, may, by notice published in the Government Gazette, fix scales of fees and costs for referrals of medical questions under this Part. (2) All fees and costs payable by the respondent 20 in respect of a referral to a Medical Panel under section 28LX must be paid to the Convenor. (3) The Convenor may recover any fees or costs payable under section 28LX in any court of 25 competent jurisdiction as a debt due to the Crown. (4) The Convenor may establish a bank account or bank accounts for the purposes of this Part. 30 (5) The Convenor must pay any amount paid to the Convenor under this section into the bank account or accounts established under sub- section (4). 45 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 26 (6) The Convenor may pay out of a bank account established under sub-section (4) any amount necessary-- Victorian Legislation and Parliamentary Documents (a) to reimburse the Victorian WorkCover 5 Authority for the remuneration (including allowances) of members of Medical Panels to the extent that is applicable to their functions under this Part; 10 (b) to pay the Victorian WorkCover Authority or any other person for the provision of administrative services under this Part; (c) to pay any other costs (including 15 administrative costs) relating to a referral of a medical question for determination under this Part. (7) The Convenor may engage any person to assist the Convenor in carrying out any 20 function under this Part. (8) The Convenor may enter into arrangements with the Victorian WorkCover Authority or with any other person or body for the provision of administrative services to the 25 Convenor for the purposes of this Part. (9) The Minister must cause a notice under sub- section (1) to be laid before each House of Parliament within 5 sitting days of that House after it is published in the 30 Government Gazette. (10) Sections 23, 24 and 25 of the Subordinate Legislation Act 1994 apply to a notice under sub-section (1) as if it were a statutory rule within the meaning of that Act. 46 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 27 (11) A notice under sub-section (1) may be disallowed in whole or in part by resolution of either House of Parliament in accordance Victorian Legislation and Parliamentary Documents with the requirements of section 23 of the 5 Subordinate Legislation Act 1994.". 27. Procedure of Medical Panel For sections 28LZ(3) and 28LZ(4) of the Wrongs Act 1958 substitute-- "(3) The Minister, after consultation with the 10 Minister administering Part III of the Accident Compensation Act 1985, may for the purposes of-- (a) ensuring procedural fairness in the procedures of Medical Panels under 15 this Part; and (b) facilitating the proper administration of the Medical Panels under this Part-- issue guidelines as to the procedures of Medical Panels under this Part. 20 (4) The Convenor may give directions as to the procedures of Medical Panels under this Part but must not give directions inconsistent with any guidelines issued by the Minister under this Part. 25 (5) A Medical Panel must comply with-- (a) any relevant guidelines as to the procedures of Medical Panels issued under sub-section (3); and (b) any directions given by the Convenor 30 under sub-section (4).". 47 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 28 28. Respondent to provide information to Medical Panel (1) In section 28LZA(1)(a) of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents after "in writing" insert "and in the prescribed form (if any)". 5 (2) For section 28LZA(2) of the Wrongs Act 1958 substitute-- "(2) The Convenor may, in writing, request the respondent to provide to the Medical Panel any specified document or documents of a 10 specified class in the respondent's possession. (2A) More than one request may be made under sub-section (2). (2B) The respondent must comply with any 15 request under sub-section (2).". (3) In section 28LZA(3) of the Wrongs Act 1958 for "required documents under this section" substitute "documents required under sub-section (1) or requested under sub-section (2)". 20 (4) For section 28LZA(4) of the Wrongs Act 1958 substitute-- "(4) A respondent is deemed to have accepted the assessment in the certificate of assessment if the respondent-- 25 (a) fails to provide the Medical Panel with the information and documents required under sub-section (1) within 30 days after being requested in writing to do so by the Convenor; or 30 (b) fails to provide any documents requested under sub-section (2) within 30 days after that request.". 48 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 29 29. Request to claimant At the end of section 28LZC of the Wrongs Act Victorian Legislation and Parliamentary Documents 1958 insert-- "(2) A request under this section must be made 5 within 30 days after the medical question is referred to the Medical Panel.". 30. Request to registered health practitioner At the end of section 28LZE of the Wrongs Act 1958 insert-- 10 "(2) A request under this section must be made within 30 days after the last of the following to occur-- (a) the date on which the medical question is referred to the Medical Panel; 15 (b) the date on which the claimant meets with the Medical Panel under section 28LZC; (c) the date on which the claimant is given a medical examination by the Medical 20 Panel or a member of the Panel under section 28LZC; (d) the last date on which the Medical Panel receives any documents requested under section 28LZC(1)(b).". 25 31. New section 28LZG substituted and section 28LZGA inserted For section 28LZG of the Wrongs Act 1958 substitute-- "28LZG. Determination of Panel 30 (1) A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3. 49 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 31 (2) After making the assessment, the Medical Panel must give the claimant and the respondent-- Victorian Legislation and Parliamentary Documents (a) its determination of the medical 5 question in accordance with sub- section (4); or (b) its certificate, in accordance with sub- section (5), that it is unable to determine the medical question but that 10 it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or (c) its certificate that it is unable to determine the medical question and a 15 statement of the time fixed for further assessment of the person under sub- section (6). (3) The Medical Panel must give the determination or certificate-- 20 (a) within 30 days after the last of the following to occur-- (i) the last date on which the claimant complies with a request under section 28LZC; 25 (ii) the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the 30 last date on which the last of the registered health practitioners to comply, complies with the request; or (b) within such longer period as is agreed 35 by the claimant and the respondent. 50 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 31 (4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question Victorian Legislation and Parliamentary Documents must state whether the degree of impairment 5 resulting from the injury satisfies the threshold level but must not state the specific degree of impairment. (5) If, after making an assessment, the Medical Panel is unable to determine the medical 10 question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may 15 certify in writing to that effect. (6) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and sub-section (5) does not apply, the 20 Medical Panel must in writing-- (a) certify that it is unable to determine the medical question; and (b) fix a time (not being later than 12 months after the first assessment) for 25 a further assessment of the degree of impairment of the person to be made under this section. (7) The time fixed under sub-section (6) must be the earliest time by which the Medical Panel 30 considers that the injury will have stabilised. (8) More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment. 51 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 32 (9) A determination of the Medical Panel under sub-section (4) must be given in writing and be certified by the Medical Panel. Victorian Legislation and Parliamentary Documents (10) If the Medical Panel gives a certificate under 5 sub-section (5) in relation to an injury, the injury is deemed to be significant injury. 28LZGA. Further assessment (1) If a Medical Panel fixes a time for further assessment under section 28LZG, the 10 respondent may by notice in writing to the Medical Panel and the claimant waive the requirement for a further assessment. (2) The notice must be given within 14 days after the respondent receives the statement of 15 the Medical Panel. (3) If the respondent waives the requirement for a further assessment under section 28LZG, the respondent is deemed to have accepted, for the purposes of this Part, the assessment 20 in the certificate of assessment served under section 28LT. (4) If a Medical Panel fixes a time for further assessment under section 28LZG, and at the end of 12 months after the first assessment, 25 the Medical Panel certifies in writing that it is still unable to determine the medical question because an injury has not stabilised, the injury to the person is deemed to be significant injury.". 30 32. Operation of Panel provisions of Accident Compensation Act 1985 In section 28LZL of the Wrongs Act 1958 after "to (6B)," insert "65(8), 65(9),". 52 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 2--Amendments to Wrongs Act 1958 s. 33 33. Provision of assessment information to court After section 28LZM(4) of the Wrongs Act 1958 Victorian Legislation and Parliamentary Documents insert-- "(5) If the injury is deemed under section 5 28LZG(10) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under section 28LZG(5). 10 (6) If the injury is deemed under section 28LZGA(4) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under that 15 sub-section.". 34. Regulations After section 28LZP(2)(a) of the Wrongs Act 1958 insert-- "(ab) may prescribe forms for use under this Part; 20 and". 35. Transitional After section 28LZQ(3) of the Wrongs Act 1958 insert-- "(4) Despite the amendment of section 28LF by 25 section 14(2) of the Wrongs and Other Acts (Law of Negligence) Act 2003, section 28LF continues to apply to any proceedings in which damages were awarded before the date on which that Act received the Royal 30 Assent as if section 28LF had not been amended by section 14(2) of that Act.". __________________ 53 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 3--Amendments to Wrongs and Limitation of Actions Acts (Insurance s. 36 Reform) Act 2003 PART 3--AMENDMENTS TO WRONGS AND LIMITATION OF ACTIONS ACTS (INSURANCE REFORM) ACT 2003 Victorian Legislation and Parliamentary Documents 36. Definition See: In section 3 of the Wrongs and Limitation of Act No. 5 Actions Acts (Insurance Reform) Act 2003, in 60/2003. LawToday: proposed section 24AE, the definition of www.dms. "economic loss" is repealed. dpc.vic. gov.au 37. Application of Part In section 3 of the Wrongs and Limitation of 10 Actions Acts (Insurance Reform) Act 2003, in proposed section 24AF(1) for "in contract, tort" substitute "in tort, in contract, under statute". 38. Liability for contributory negligence In section 3 of the Wrongs and Limitation of 15 Actions Acts (Insurance Reform) Act 2003, in proposed section 24AN for "section 26" substitute "Part V or Division 7 of Part X". __________________ 54 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 4--Amendments to Victorian Managed Insurance Authority Act 1996 s. 39 PART 4--AMENDMENTS TO VICTORIAN MANAGED INSURANCE AUTHORITY ACT 1996 Victorian Legislation and Parliamentary Documents 39. Functions of Authority See: After section 6(d) of the Victorian Managed Act No. 5 Insurance Authority Act 1996 insert-- 11/1996. Reprint No. 2 "(da) to provide insurance or indemnities to as at 20 September persons or bodies in accordance with 2001. section 25A;". LawToday: www.dms. dpc.vic. gov.au 40. New section 25A inserted 10 After section 25 of the Victorian Managed Insurance Authority Act 1996 insert-- "25A. Provision of insurance and indemnities for other persons or bodies (1) The Minister may direct the Authority to 15 provide insurance or an indemnity to-- (a) a person or body specified in the direction; or (b) persons or bodies in a class of person or body specified in the direction. 20 (2) The Minister must consult with the Authority before giving a direction under this section. (3) A direction under this section must be in writing and may specify-- (a) the risks to be insured or indemnified; 25 (b) the maximum value of liability to be covered; (c) the term (not exceeding one year) for which the insurance or indemnity is to be provided; 55 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 4--Amendments to Victorian Managed Insurance Authority Act 1996 s. 40 (d) any other terms and conditions for the provision of the insurance or indemnity that the Minister thinks fit. Victorian Legislation and Parliamentary Documents (4) Subject to sub-section (6), the Authority 5 must comply with a direction under this section. (5) The Authority may by notice in writing require any person or body to whom or which insurance or an indemnity is to be 10 provided under this section to pay a premium for that insurance or indemnity. (6) The Authority may refuse to insure or indemnify a person or body under this section if the relevant premium is not paid 15 within the time (being not less than 30 days) specified in the notice under sub-section (5). (7) As soon as possible after giving a direction under this section to the Authority, the Minister must cause a copy of the direction 20 to be published in the Government Gazette. (8) The Authority must include in its annual report under the Financial Management Act 1994 a copy of each direction given to it by the Minister under this section during the 25 year to which the report relates.". __________________ 56 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 5--Amendments to Building Act 1993 s. 41 PART 5--AMENDMENTS TO BUILDING ACT 1993 Victorian Legislation and Parliamentary Documents 41. Definition of required insurance See: In section 3(1) of the Building Act 1993 for the Act No. definition of "required insurance" substitute-- 126/1993. Reprint No. 5 5 ' "required insurance" means the insurance as at 31 May 2003 required by order under section 135 and, in and the case of insurance to which amending Act Nos 26/2001 section 137AA applies, complying with and 60/2003 section 137AA;'. LawToday: www.dms. dpc.vic. gov.au 10 42. New section 137AA inserted After section 137 of the Building Act 1993 insert-- '137AA. Insurance for domestic building work to be provided by designated insurers 15 (1) If an order under section 135 requires a builder to be covered by insurance relating to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work, the insurance 20 required by the order must be provided by a designated insurer. (2) For the purposes of sub-section (1) a designated insurer is-- (a) a general insurer within the meaning of 25 the Insurance Act 1973 of the Commonwealth; or (b) a Lloyd's underwriter within the meaning of the Insurance Act 1973 of the Commonwealth authorised under 30 that Act to carry on insurance business in Australia; or 57 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 5--Amendments to Building Act 1993 s. 42 (c) an insurer specified by the Minister by notice under this section. Victorian Legislation and Parliamentary Documents (3) The Minister may by notice published in the Government Gazette specify an insurer for 5 the purposes of this section. (4) The Minister must not specify an insurer under sub-section (3) unless the Minister is satisfied that the insurer has an acceptable international credit rating and that the insurer 10 does not carry on insurance business in Australia. (5) For the purposes of this section an acceptable international credit rating is a rating that-- (a) is provided by a credit rating agency 15 specified under sub-section (6); and (b) is equal to or exceeds the rating specified in relation to that agency under sub-section (6). (6) The Minister may by notice published in the 20 Government Gazette-- (a) specify a credit rating agency for the purposes of this section; and (b) specify a rating in relation to that agency. 25 (7) The Minister may by notice published in the Government Gazette amend or revoke any notice published under this section. (8) The Minister must consult with the Minister for the time being administering the 30 Victorian Managed Insurance Authority Act 1996 before publishing any notice under this section. (9) In this section "insurance" has the same meaning as it has in section 135. 58 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Part 5--Amendments to Building Act 1993 s. 42 (10) This section applies only to insurance taken out on or after the commencement of section 42 of the Wrongs and Other Acts Victorian Legislation and Parliamentary Documents (Law of Negligence) Act 2003.'. 59 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

Wrongs and Other Acts (Law of Negligence) Act 2003 Act No. Endnotes ENDNOTES Victorian Legislation and Parliamentary Documents By Authority. Government Printer for the State of Victoria. 60 551109B.I1-31/10/2003 BILL LA CIRCULATION 31/10/2003

 


 

 


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