HG Alert: New legislation to affect personal injury claims - 12 Oct 2009

New legislation impacting on several different legislative schemes relating to personal injury in Queensland was introduced in Parliament last week. The Civil Liability and Other Legislation Amendment Bill 2009 will:

  • change the statutory limitation requirements for asbestosis claims and other dust-related claims;
  • increase the entitlements to general damages currently prescribed under the Civil Liability Act 2003 and Regulations;
  • reinstate damages to compensate an injured person for the loss of their capacity to provide gratuitous domestic services to others;
  • allow de-facto partners to claim for loss of consortium; and
  • amend the pre-court procedures under the Personal Injuries Proceedings Act 2002.

Dust-related injury claims

At the moment, people who sustain injury or contract a disease due to dust-related conditions such as asbestosis or mesothelioma have the same time limitations as all other injured claimants.

Dust-related claims generally arise from prolonged exposure to a hazard over a number of years, and the injuries or conditions that arise may not be known to the claimant for a long time. As a result, Courts frequently hear applications for extensions of time for dust-related claims to be prosecuted.

In order to avoid the burden of these applications on both claimants and the Courts, the Amendment Bill will remove time limitations for claims for dust-related conditions. This amendment is proposed to be retrospective, in that it will apply to all claims irrespective of when the injury arose.

These changes expressly exclude claims which relate to the use of tobacco or tobacco-related products.

Attorney-General Cameron Dick has acknowledged that while this amendment has the potential to cause some disadvantage to defendants and insurers, it is considered in the best interests of public policy to enable these claims to be made without the added complications associated with statutory limitation issues.

Damages and costs provisions

In Queensland, a claimant’s entitlement to general damages (otherwise known as damages for pain and suffering) in motor vehicle and public liability injury claims is currently capped in accordance with a table of injuries. A fixed monetary amount is allowed depending on where the injury falls within the table. This system is being retained, although the Amendment Bill will allow the fixed monetary amounts to increase annually in line with increases in average weekly earnings.

By way of example, a moderate neck injury involving a prolapsed disc or fractured vertebra currently gives rise to an award of up to $18,000. After the amendment, that amount will increase to $21,200. The scheme maximum for general damages for the most serious injuries will increase from $250,000 to $294,500.

These amendments represent the first increase of monetary amounts for personal injury claims in almost a decade. The increased amounts will come into effect on 1 July 2010 and thereafter will be reviewed by recommendation of the Minister annually.

The same indexation strategy will be applied to capped cost limits for public liability and motor vehicle claims. At the moment, no costs entitlements exist for claims of less than $30,000, and very limited costs are allowed for claims of between $30,000 and $50,000. Significant allowances for costs are made for claims of more than $50,000. These cost limits will be increased to $35,340 and $58,900 respectively from 1 July 2010, with annual review.

Damages for voluntary care to others

Under existing common law in Australia and pursuant to the present Civil Liability Act 2003 (as interpreted by the High Court of Australia in the decision of CSR Limited v Eddy [2005]), an injured person who is prevented from providing voluntary domestic services to a family member or friend due to his or her injuries is not entitled to recover damages for the loss of that capacity.

The Amendment Bill will make express provision for recovering damages for injured people in this situation, with some strict restrictions. These include:

  • the injured person died of the injuries or suffered a serious injury (giving rise to a substantial claim for general damages);
  • the person to whom the services were being provided was a member of the injured person’s household (in other words, living in the same home);
  • the person to whom the services were being provided is not capable of performing the services themselves; and
  • before the injury, the services were required for at least six hours per week for at least six months.

The restrictions are designed to ensure that only the most serious injuries result in an award of this type of damages, and that an award is made only where there is a genuine need for domestic assistance.

Extension of loss of consortium

A claim for loss of consortium was historically a claim by a wife for loss of ‘matrimonial fellowship and affection’ due to the death of or injury to her husband.

Although this type of claim is rare these days, the Amendment Bill extends this type of claim to de-facto relationships, and also allows for husbands to claim for loss of consortium due to death or injury to their wife.

Other procedural amendments

The Amendment Bill proposes several changes to pre-court procedures pursuant to the Personal Injuries Proceedings Act 2002 in an attempt to reduce some of the ‘red-tape’ related to claims under this legislation. Those changes include a procedure whereby a claimant can avoid the time and costs associated with bringing an application for leave to proceed in the case of urgent proceedings where the notice of claim may remain non-compliant, provided the respondent agrees in advance to allow the claimant to start proceedings.

Another major change is that parties will no longer be required to sign a certificate of readiness for trial before the compulsory conference.

It should be noted that the proposed changes in no way affect claims for injuries sustained in the course of employment.