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Compensation for Personal Injury
Damages for non-economic loss
The Wrongs Act 1958 (the Act) provides for the recovery in limited circumstances of damages for non-economic loss – that is, pain and suffering, loss of amenities of life, or loss of enjoyment of life. Under Part VBA of the Act, a person (the claimant) can only recover damages for non-economic loss caused by the fault of another person (the respondent) when the injury is considered to be a ‘significant injury.’
What is a significant injury?
A determination of what constitutes a significant injury will usually require an assessment of the degree of impairment caused as a result of the injury. This degree of impairment must satisfy the relevant threshold level in order for the injury to be a significant one. The relevant threshold levels are as follows: in the case of psychiatric injury, impairment must be more than ten per cent, and in the case of other injuries, impairment must be more than five per cent.
An assessment of the degree of impairment must be made by an approved medical practitioner, who must follow certain guidelines and methods in order to make the assessment. The approved medical practitioner must then provide the claimant with a certificate of assessment stating whether or not the degree of impairment satisfies the relevant threshold level. However, the practitioner must not state the specific degree of impairment in the certificate of assessment.
Referring a medical question to a medical panel
The claimant must give the respondent a copy of any certificate of assessment that they intend to rely on. If, after the respondent receives a certificate of assessment from the claimant, they dispute the determination, they may refer a medical question about the assessment to a medical panel for determination. In these circumstances, a ‘medical question’ means a question concerning whether or not the degree of impairment resulting from the injury to the claimant satisfies the threshold level. The respondent is not able to refer a medical question in circumstances where they have previously accepted the assessment of the degree of impairment.
A medical panel is usually constituted by two or more medical practitioners who have been appointed to a list of practitioners eligible to nominated to a medical panel by the Governor in Council. Once a matter has been referred to the panel, they may ask a claimant to meet with them to answer questions, to supply them with relevant documents or to submit to a medical examination by the panel or a member of the panel. The medical panel may also, with the consent of the claimant, ask a registered health practitioner who has examined the claimant to meet with the panel, answer questions or to supply relevant documents.
A medical panel is not bound by traditional evidence rules or practices but rather can inform itself on any matter it thinks fit. The Panels must also act informally without regard to technicalities or legal forms.
The respondent who referred the medical question to the panel will be required to cover any fees and costs associated with the referral.
Medical panel determinations
After assessing the degree of impairment of a claimant, a medical panel may issue a certificate of determination as to whether or not the assessed impairment satisfies the threshold level. A panel must not state the specific degree of impairment when making this determination.
Where the panel is unable to determine the medical question (for example, because the injury has not stabilised and the panel cannot determine whether the degree of impairment will satisfy the threshold level once the injury stabilises), the panel may set a time for further assessment within 12 months from the first assessment.
A determination by a medical panel regarding the threshold level of impairment must be accepted by a court in any subsequent proceedings concerning the claim.
Any person wishing to pursue or respond to a claim for damages for non-economic loss is advised to first seek independent legal advice.
For further information please refer to the Medical Panels website via the link featured below.
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