Victorian Current Acts

WRONGS ACT 1958 - SECT 28ID

    (1)     Despite anything to the contrary at common law, a court may award damages to a claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants.

    (2)     However, a court may only do so if the court is satisfied that—

        (a)     in the case of any dependants of the kind referred to in paragraph (a) of the definition of "dependants"—the claimant provided the care to those dependants before the time that the liability in respect of which the claim is made arose; and

        (b)     the claimant's dependants were not, or will not be, capable of providing the care themselves because of—

              (i)     their age; or

              (ii)     their physical or mental incapacity; and

        (c)     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—

              (i)     for at least 6 hours per week; and

              (ii)     for a period of at least 6 consecutive months; and

        (d)     there will be a need for the care to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

    (3)     In determining the amount of damages (if any) to be awarded to the claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants, a court—

        (a)     may only award damages for that loss in accordance with this section and section 28IE; and

        (b)     must not include in any damages awarded to the claimant for non‑economic loss a component that compensates the claimant for the loss of that capacity.

    (4)     The claimant may not be awarded damages for any loss of the claimant's capacity to provide gratuitous care to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

    (5)     A person (whether or not a dependant of the claimant) may not be awarded damages for a loss sustained by the person because of the claimant's loss of capacity to provide gratuitous care if the claimant has previously recovered damages in respect of that loss of capacity.

Note

Subsections (2) to (5) and section 28IE do not apply to certain actions for damages—see section 28IF.

S. 281E inserted by No. 102/2003 s. 10.