In Victoria, the Wrongs Act 1958 (Vic) governs public liability claims for damages for personal injury and death as a result of negligence or fault.  

Under the Wrongs Act 1958 (Vic), if a plaintiff can establish negligence or fault on the defendant’s behalf, the plaintiff may be awarded monetary compensation for the following types of damages: 

  • General Damages (pain and suffering, loss of amenities of life, and/or loss of enjoyment of life); 
  • Past Economic Loss; 
  • Future Economic Loss; 
  • Gratuitous Care (to compensate third parties for the voluntary work provided to the plaintiff for their needs/injuries sustained as a result of the defendant’s negligence/fault); 
  • Past Special Damages (reimbursement of past out-of-pocket expenses for treatment of the plaintiff’s injuries/needs sustained as a result of the defendant’s negligence/fault); and 
  • Future Special Damages (compensation for predicted future treatment of the plaintiff’s injuries/needs sustained as a result of the defendant’s negligence/fault).

However, the Wrongs Act 1958 (Vic) imposes thresholds (i.e. minimum requirements) and caps limiting the compensation that can be awarded to plaintiff’s in these claims. It is important to note from the outset that, pursuant to s28C(2)(a) of the Wrongs Act 1958 (Vic), these thresholds and caps on damages do not apply to claims where the fault is an intentional act with intent to cause harm, a sexual assault, or any other sexual misconduct. 

Thresholds

The main threshold a plaintiff must satisfy under the Wrongs Act 1958 (Vic) is the ‘significant injury’ threshold in relation to General Damages. To be entitled to an award for General Damages, a plaintiff is required to establish that they have suffered a ‘significant injury’ as a result of the defendant’s negligence/fault. Pursuant to ss 28LB and 28LF(A) of the Wrongs Act 1958 (Vic), to categorise as a ‘significant injury’, the plaintiff’s injury must satisfy a whole person impairment percentage as follows: 

  • Spinal injury – 5% or more; 
  • Any other physical injury – more than 5%; or 
  • Psychiatric injury – 10% or more.  

Another threshold is in relation to Gratuitous Care damages. Pursuant to s28IA of the Wrongs Act 1958 (Vic), a plaintiff is only entitled to damages for gratuitous care if the services are for at least 6 hours per week for a period of at least 6 months.  

Caps

The Wrongs Act 1958 (Vic) provides that the following caps apply to damages: 

  • General Damages – capped to a statutory amount indexed on 1 July each year.  
  • Past Economic Loss – capped at three (3) times the average weekly earnings as at the date damages are awarded.  
  • Gratuitous Care (40 hours per week or more) – must not exceed the weekly Victorian employee earnings as at the date damages are awarded. 
  • Gratuitous Care (less than 40 hours per week) – must not exceed one fortieth (1/40) of the average weekly Victorian employee earnings as at the date damages are awarded.  

Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, please reach out to Emily Wright and Littles Lawyers today. 

Further blogs in relation to Victorian personal injury claims written by our Emily Wright can be found on our website. 

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