Part VBA of the Wrongs Act 1958 (“Act”) places thresholds in relation to the recovery of damages for non-economic loss. The Wrongs (Part VBA) Claims Regulations 2015 (“2015 Regulations”) prescribe forms and other matters for the purpose of Part VBA. The 2015 Regulations came into operation on 9 May 2015 and revoked the Wrongs (Part VBA Claims) Regulations 2005 (“2005 Regulations”) which were due to expire in 2015.
Below is a summary of the changes the 2015 Regulations introduce:
Psychiatric injury must not have arisen from physical injury
In relation to certificates of assessment of degrees of impairment under sections 28LN and 28LNA of the Act, the 2015 Regulations prescribe Forms 1 and 2 of Schedule 1 for this purpose. After examining the claimant, an approved medical practitioner must certify two things:
- whether the degree of permanent impairment resulting from the claimant’s injury is or will be once the injury has stabilised more than 5% or not and/or
- whether the degree of impairment resulting from the claimant’s psychiatric injury is or will be once the injury has stabilised more than 10% or not.
The 2015 Regulations introduce the criteria that in relation to the degree of permanent impairment resulting from a psychiatric injury and symptoms the approved medical practitioner must certify that the psychiatric injury has not arisen as a consequence of, or secondary to, a physical injury. Any secondary psychiatric injury must be disregarded for the purposes of the Certificate of Assessment.
Further prescribed information and form
Under section 28LO of the Act, a claimant may in writing ask the respondent to waive the requirement for an assessment of degree of impairment. Such a request must include the prescribed information. Under section 28LT of the Act, if the claimant does not request a waiver, then they must provide the prescribed information to the respondent at the time of serving a copy of the certificate of assessment.
The 2015 Regulations add the following prescribed information for the purposes of section 28LO and 28LT of the Act to what was previously prescribed in the 2005 Regulations:
- name of the claimant’s legal representative
- email address of the claimant or the claimant’s legal representative.
The 2015 Regulations also prescribe Form 3 in Schedule 1 as the correct form to be used for a request to waive assessment of impairment, and Form 4 in Schedule 1 as the correct form to be used for providing the prescribed information. There were previously no forms provided in the 2005 Regulations.
Further information must be provided to the medical panel
Under section 28LZA of the Act, a respondent referring a medical question to a Medical Panel must submit to the Medical Panel the prescribed information.
The 2015 Regulations add the following prescribed information for the purposes of section 28LZA of the Act to what was previously prescribed in the 2005 Regulations:
- email address of the respondent
- email address of the respondent’s legal or other representative
- the claimant’s statement of claim if this has been provided to the respondent (this replaces the date, time and location of incident, description of incident and details of injury claimant alleges to have suffered as a result of the incident that were prescribed in the 2005 Regulations)
- a copy of Form 4 received from the claimant
The 2015 Regulations also prescribe Form 5 in Schedule 1 for the correct form to be used for a Notice of Referral of Medical Question to Medical Panel. There was no such form provided in the 2005 Regulations. The medical question in Form 5 is to be stated as follows:
- does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level? and/or
- does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?