Abstract
This chapter illustrates the historical, judicial and juridical framework of personal injury assessment and compensation in Australia, illustrating the expert’s qualification and competences and the ascertainment methodology for identifying, describing and estimating any personal injury, its temporary and permanent consequences and the causal value/link between the event and the injury and between the injury and the impairment. In particular, the chapter discusses the principles related to the assessment of personal injuries and impairment, both physical and psychiatric, when assessing the extent of damages resulting from traffic accidents and from wrongful injuries sustained in other compensable circumstances, such as medical malpractice, in Australia. The emphasis is on the medical methods of ascertaining the quantum of damages, which in Australia is generally undertaken in accordance with impairment rating instruments prescribed by statute.
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Notes
- 1.
Mendelson D. Devaluation of a constitutional guarantee: the history of Section 51(xxiiiA) of the Commonwealth Constitution. (1999) 23 Melbourne University Law Review 308. For a general introduction to Australian legal history, the reader is referred to Castles, A.C., An Australian Legal History, (Sydney, 1982).
- 2.
Transport Accident Act 1986 (Vic): benefits in respect of loss of earnings and medical and associated expenses are provided, regardless of fault, to all persons injured in ‘transport accidents’, defined in s 3(1) as incidents ‘directly caused by the driving of’ a motor car or motor vehicle, railway train or tram. Transport Accident Act 1986 (Vic) s 93(17) prescribes that to sue for damages at common law, the claimants have to be assessed as having suffered ‘serious injury’—a disability of 30 percent or greater (serious long-term impairment or loss of a body function, or permanent serious disfigurement, or severe long-term mental or severe long-term behavioural disturbance or disorder or loss of a foetus).
- 3.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas): the no-fault compensation scheme provides for scheduled benefits payable in cases where a Tasmanian resident dies or suffers bodily injury as a result of an accident occurring in Tasmania or involving a vehicle registered in Tasmania. The maximum total sum payable for medical and disability (loss of income and the inability to perform housekeeping duties) benefits for persons injured in a motor accident is $400,000 (additional benefits are accessible on the basis of special need).
- 4.
The Motor Accidents (Compensation) Act 1979 (NT) provides a no-fault accident compensation scheme, but abrogates common law damages (s 5). The scheme covers everyone injured or killed in a motor vehicle accident in the territory, irrespective of where the motor vehicle is registered (s 6).
- 5.
Motor Accidents Compensation Act 1999 (NSW) s 7A provides that road users can claim for a blameless motor accident: i.e. ‘a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person’. Excluded from recovery of damages are drivers who by an act or omission caused motor accident in which they were injured or killed even if (a) the act or omission did not constitute fault by the driver in the use or operation of the vehicle (e.g. the vehicle’s brakes failed), (b) the act or omission was involuntary (e.g. heart attack), (c) the act or omission was not the sole or primary cause of the death or injury or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event (s 7E). Also, under Motor Accidents Compensation Act 1999 (NSW) s 7J: children under 16 years of age, who at the time of the accident are residents of NSW, can make a claim for the children’s special benefit (hospital, medical, rehabilitation, pharmacy, respite care and attendant care expenses and in the case of death funeral or cremation expenses). However, under s 7K of the Act, special entitlement is not available for a child injured or killed while, or following, engaging in conduct that constitutes an offence punishable by 6 months or more in prison.
- 6.
Parts of this chapter are based on previous publications by the authors, especially ‘Mendelson, G., Survey of methods for the rating of psychiatric impairment in Australia. (2004) 11 Journal of Law and Medicine 446’ and ‘Mendelson, D., The New Law of Torts. 3rd edition, Oxford University Press 2014 (Chapter 1)’.
References
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Mendelson, G., Mendelson, D. (2016). Methods of Ascertainment of Personal Damage in Australia. In: Ferrara, S., Boscolo-Berto, R., Viel, G. (eds) Personal Injury and Damage Ascertainment under Civil Law. Springer, Cham. https://doi.org/10.1007/978-3-319-29812-2_25
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