Victorian Current Acts Victorian Current Acts(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
S. 93(1A) inserted by No. 65/2008 s. 5.
(1A) For the avoidance of doubt, it is hereby declared that the effect of subsection (1) is that any person, whether or not a natural person, cannot recover any damages in any proceedings to which that subsection applies unless the person is a natural person in which case the natural person can only bring proceedings in accordance with this section to recover damages in respect of the injury sustained by him or her or the death of a person specified in subsection (1).
S. 93(1B) inserted by No. 80/2010 s. 10.
(1B) For the avoidance of doubt, nothing in subsection (1) or (1A) is to be taken to prevent a legal personal representative (not being a natural person) of a person who dies as a result of a transport accident recovering damages in any proceedings in respect of that death.
(2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if—
S. 93(2)(a) substituted by No. 32/1988 s. 21(1)(a).
(a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and
(b) the injury is a serious injury.
S. 93(2A) inserted by No. 71/2013 s. 26, repealed by No. 18/2016 s. 5.
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(3) If—
S. 93(3)(a) substituted by No. 32/1988 s. 21(1)(b).
(a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
S. 93(3)(b) substituted by No. 32/1988 s. 21(1)(b).
(b) the degree so determined is 30 per centum or more—
the injury is deemed to be a serious injury within the meaning of this section.
(4) If—
S. 93(4)(a) substituted by No. 32/1988 s. 21(1)(c).
(a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
S. 93(4)(b) substituted by No. 32/1988 s. 21(1)(c).
(b) the degree so determined is less than 30 per centum—
the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(c) the Commission—
(i) is satisfied that the injury is a serious injury; and
(ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or
(d) a court, on the application of the person, gives leave to bring the proceedings.
S. 93(5) substituted by No. 57/1989 s. 3(Sch. item 203.1).
(5) A copy of an application under subsection (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action.
(6) A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.
S. 93(6A) inserted by No. 84/2000 s. 28.
(6A) Despite anything to the contrary in any other Act, a party may in proceedings under this section when adducing evidence on the question of whether any person was at the time of the transport accident under the influence of intoxicating liquor or any other drug, use the analysis or the results of the analysis of a blood sample or breath analysis lawfully taken under the Road Safety Act 1986 at or after the time of the transport accident.
S. 93(6B) inserted by No. 84/2000 s. 28.
(6B) A party must not adduce material referred to in subsection (6A) in evidence in proceedings under this section unless—
(a) the party provides to all other parties in the proceedings, copies of the document or documents which form the evidence at least 6 weeks before the commencement of the trial of the proceedings; and
(b) if notice is given to that party by another party at least 2 weeks before the commencement of the trial of the proceedings, the party causes the person who supplied the information contained in the document or documents to attend the trial of the proceedings for the purpose of cross‑examination.
S. 93(6C) inserted by No. 84/2000 s. 28.
(6C) Subsections (6A) and (6B) as inserted by section 28 of the Transport Accident (Amendment) Act 2000 apply to and in respect of a transport accident which occurs on or after the commencement of that section.
S. 93(7) substituted by No. 84/1994 s. 10(1).
(7) Damages of any kind in respect of an injury cannot be recovered in proceedings in accordance with subsections (2), (3) and (4) other than damages [12] —
(a) for pecuniary loss but only if—
(i) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $30 520 but less than $686 840, in which case the amount that can be recovered is that amount so assessed as reduced first under subsection (11) and secondly in respect of the person's responsibility for the injury; or
(ii) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $686 840, in which case the amount that can be recovered is $686 840 as reduced first under subsection (11) and secondly in respect of the person's responsibility for the injury;
(b) for pain and suffering but only if—
(i) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $30 520 but less than $305 250, in which case the amount that can be recovered is that amount so assessed as reduced first under subsection (11) and secondly in respect of the person's responsibility for the injury; or
(ii) the assessment of damages before any reduction in respect of the person's responsibility for the injury is more than $305 250, in which case the amount that can be recovered is $305 250 as reduced first under subsection (11) and secondly in respect of the person's responsibility for the injury.
(8) A person may recover damages under Part III of the Wrongs Act 1958 in respect of the death of a person as a result of a transport accident.
(9) A court must not, in proceedings under Part III of the Wrongs Act 1958 award damages in accordance with subsection (8) in respect of the death of a person in excess of $500 000.
(10) Damages awarded to a person under this section shall not include damages in respect of—
S. 93(10)(a) amended by No. 84/1994 s. 10(2).
(a) in the case of an award of pecuniary loss damages under subsection (7), any pecuniary loss suffered in the period of 18 months after the transport accident [13] ; or
(b) any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in section 60; or
S. 93(10)(ba) inserted by No. 49/2018 s. 17.
(ba) any loss suffered or that may
be suffered
as a result of the incurring of professional administration costs,
as referred to in section 62A;
(c) the value of services of a domestic nature or services relating to nursing and attendance—
(i) which have been or are to be provided by another person to the person in whose favour the award is made; and
(ii) for which the person in whose favour the award is made has not paid and is not and will not be liable to pay.
S. 93(11) amended by No. 32/1988 s. 21(1)(d), substituted by No. 84/1994 s. 10(3).
(11) Damages under subsection (7) are to be reduced [14] —
(a) in the case of damages for pecuniary loss—
(i) if the person was entitled to compensation under this Act, by the amount of compensation paid in respect of the injury under sections 49, 50 and 51; or
(ii) if the person was not entitled to compensation under this Act because of section 37, by the amount of any compensation paid in respect of lost earnings other than earnings lost in the first 18 months after the transport accident; and
(b) in the case of damages for pain and suffering—
S. 93(11)(b)(i) amended by No. 94/2004 s. 11(5)(f).
(i) if the person was entitled to compensation under this Act, by the amount of compensation paid in respect of the injury under sections 47 and 54; or
(ii) if the person was not entitled to compensation under this Act because of section 37, by the amount of any compensation paid otherwise than in respect of lost earnings or other pecuniary loss.
S. 93(11A) inserted by No. 84/1994 s. 10(3).
(11A) Damages under subsection (8) are to be reduced—
(a) if compensation was payable in respect of the death under this Act, by the amount of compensation paid under sections 57, 58 and 59; or
(b) if compensation was not payable in respect of the death under this Act because of section 37, by the amount of any compensation paid in respect of the loss of expectation of financial support (other than of the kind to which section 60 applies) under any compensation scheme specified in section 37 [15] .
(12) Subject to the discretion of the court—
(a) in proceedings relating to an application for leave of the court under subsection (4)(d)—costs are to be awarded against a party against whom a decision is made; and
(b) in proceedings for the recovery of damages in accordance with this section—
(i) if no liability to pay damages is established, costs are to be awarded against the claimant; and
(ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and
(iii) if damages are awarded, costs are to be awarded against the defendant.
S. 93(12A) inserted by No. 84/1994 s. 10(4).
(12A) Damages awarded in accordance with subsection (8) in respect of the death of a person must not include damages in respect of services in the nature of housekeeping or the care of a child which would have been provided by the deceased person [16] .
(13) Where an award of damages in accordance with this section is to include compensation, assessed as a lump sum, in respect of damages for future loss which is referable to—
(a) deprivation or impairment of earning capacity; or
(b) loss of the expectation of financial support; or
(c) a liability to incur expenditure in the future—
the present value of the future loss must be qualified by adopting a discount rate of 6 per centum in order to make appropriate allowance for inflation, the income from investment of the sum awarded and the effect of taxation on that income.
(14) Except as provided by subsection (13), nothing in that subsection affects any other law relating to the discounting of sums awarded as damages.
S. 93(15) amended by No. 34/1998
s. 14(b).
(15) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on an amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to the date of the award.
(16) Except as provided by subsection (15), nothing in that subsection affects any other law relating to the payment of interest on an amount of damages, other than special damages.
(17) In this section—
"pain and suffering damages" means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
"pecuniary loss damages" means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
"serious injury" means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.
S. 93(17A) inserted by No. 71/2013 s. 27, repealed by No. 18/2016 s. 6.
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(18) Nothing in subsection (1)—
(a) affects a right to compensation under this Act or an Act or enactment referred to in section 37 or 38; or
S. 93(18)(b) amended by Nos 32/1988 s. 21(2), 84/1994 s. 7.
(b) applies to the recovery of damages in respect of a transport accident involving an organized motor vehicle race or speed trial or a test in preparation for such a race or trial by a person who, by reason of section 41, is not entitled to compensation in accordance with this Act in respect of that accident [17] ; or
S. 93(18)(c) inserted by No. 84/1994 s. 7.
(c) applies to the recovery of damages in respect of a transport accident to which section 41A or 41B applies by a person who, by reason of that section, is not entitled to compensation in accordance with this Act in respect of that accident [18] .
S. 93(18A) inserted by No. 84/2000 s. 29.
(18A) Despite subsection (18), if an award of damages under this section includes an amount for the future cost of services of a kind set out in section 60 if provided in Australia, the Commission is released from any further liability for compensation under that section.
S. 93(18B) inserted by No. 84/2000 s. 29.
(18B) Subsection (18A) as inserted by section 29 of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.
S. 93(19) inserted by No. 84/1994 s. 40.
(19) Notwithstanding anything to the contrary in this Act, for the purposes of the Limitation of Actions Act 1958 , the cause of action in respect of an injury arises on the day of the transport accident or on the day on which the injury first manifests itself.
S. 93(20) inserted by No. 84/1994 s. 40.
(20) For the avoidance of doubt it is hereby declared that all the provisions of this section contain matters that are substantive law and are not procedural in nature.
S. 93A inserted by No. 80/2010 s. 11.