The Wrongs Act 1958 is the principal statute in Victoria that governs claims for damages for personal injury and death. The Act covers economic and non-economic loss as a result of negligence or fault, and encompasses a wide variety of wrongs including defamation, public liability offences, medical negligence, neglect causing death, and infliction of mental harm.
The Act does not cover personal injuries sustained in transport accidents or at work; these are governed by the Transport Accident Act 1986 and Workplace Injury Rehabilitation and Compensation Act 2013 respectively.
This article looks at some of the ways the Wrongs Act controls personal injury compensation and how it applies in cases.
Under the Limitation of Actions Act 1958, a personal injury claim must be brought within three years of the date the injury was discovered or the injury was caused by the act or omission by someone.
Caps and thresholds
If you are injured in Victoria, there are caps, which limit the amount of compensation received, and thresholds, which are the minimum injury required for a person to be entitled to compensation. The caps and thresholds vary with the type of claim. As an example, the threshold for permanent impairment in the case of spinal injuries is 5% or more, and for psychiatric injuries, it is 10% or more.
Section 28F of the Act directs how damages for past or future loss are to be calculated. It states the maximum amount of damages that can be awarded for each week of the period of the loss of earnings is three times the amount of average weekly earnings at the date of the award.
Part VBA of the Act restricts the recovery of damages for non-economic loss such as pain and suffering, loss of enjoyment of life, or loss of amenities of life. The person must have sustained a “significant injury”. “Injury” is defined as personal or bodily injury and includes prenatal injury; psychological or psychiatric injury; disease; and aggravation, acceleration or recurrence of an injury or disease. Section 28LF lists several significant injuries, including the loss of a foetus; psychological or psychiatric injury arising from an injury to the mother or foetus or child before, during, or immediately after the birth; and the loss of a breast. For other injuries, an assessment of the degree of impairment will be needed to determine if the injury can be deemed significant. The maximum amount of damages that can be awarded is listed at Section 28G, and stands at $577,050.
The broad scope of the Wrongs Act means a variety of personal injury claims come before the court in Victoria.
- In 2009, a footballer sustained a knee injury when he ran into a boundary fence during a game. The fence was deemed to be too close to the playing area. In 2017, the footballer was awarded $375,000 in damages for pain and suffering.
- In 2009, a woman was injured when a section of marble fell from a shopfront and struck her on the head. In 2014 she was awarded $90,000 for pain and suffering but later that year on appeal, the amount of damages was increased to $317,000 including $14,000 for past loss of earnings, and $47,000 for medical expenses.
- In 2010, a woman was injured when she slipped and fell while walking across a median strip between two roads. In 2017 she was awarded $275,000 for a chronic pain disorder which resulted from the initial ankle injury.
- In 2010, a woman who was dancing at a hotel suffered permanent loss of vision in one eye when it was pierced by a stick in a pot plant. In 2013, she was awarded $1 million in damages but this was reduced to the maximum permitted under Section 28G of the Act.
- In 2011, a man was injured during a kiteboarding lesson when he landed feet first on sand. He sustained fractures of heel bones and was awarded $110,035 for pain and suffering.
- In 2011, two quarry owners were defamed on a website by a quarry neighbour. The owners suffered personal distress, hurt and humiliation, and injury to reputation, and in 2015 were awarded a combined $140,000.
- In 2019, an 87-year-old pedestrian who was injured when she was knocked to the ground by toppling clothing racks outside a store, was awarded $125,000 in damages. She sustained lower back and hip injuries, which the store conceded was a “significant injury” under the Wrongs Act. The store agreed to settle to avoid court proceedings.
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