56A—Additional provisions relating to motor vehicle injuries (economic
loss)
(1) Any entitlement to
damages for economic loss in relation to personal injury arising from an
MVA motor accident applies subject to the provisions of this section.
(2) A person who
suffers personal injury arising from an MVA motor accident may only be awarded
damages for loss or impairment of future earning capacity if the injury scale
value that applies under the regulations in relation to the injury
exceeds 7.
(3) However, a court
may award damages in a case that would otherwise be excluded by operation of
subsection (2) if satisfied—
(a) that
the consequences of the personal injury with respect to loss or impairment of
future earning capacity are exceptional; and
(b) that
the application of the threshold set by that subsection would, in the
circumstances of the particular case, be harsh and unjust.
(4) In assessing
damages for loss or impairment of future earning capacity in relation to
personal injury arising from an MVA motor accident (other than with respect to
a discount that would, apart from this section, be made for the usual
vicissitudes of life)—
(a) a
court must not take into account—
(i)
any inference as to a circumstance in respect of which
the court is unable to evaluate the chance of it occurring; or
(ii)
any inference as to a circumstance that the court
evaluates as having less than a 20% chance of occurring; and
(b) an
award of damages must be arrived at by taking into account the several
circumstances on which a court may rely, the chance of each occurring, and the
combination of those chances; and
(c) a
court must, when making an award of damages, state—
(i)
the circumstances that have been taken into account for
the purposes of the award; and
(ii)
the inferences that the court has drawn from those
circumstances; and
(iii)
the court's evaluation of the chances of each
circumstance relied on occurring; and
(iv)
its determination of the resultant award of damages.
(5) Damages awarded
for any form of loss or impairment of earning capacity (whether past or
future) in relation to personal injury arising from an MVA motor accident
must, after applying a discount rate (if any), and any other principle arising
under this Act or at common law, including so as to take into account any
actual or presumed contributory negligence, be discounted by a further 20%.
(6) The maximum amount
of damages that may be awarded to an employed person for loss in relation to
personal injury arising from an MVA motor accident due to the loss of employer
superannuation contributions is the relevant percentage of damages payable for
the loss or impairment of the earning capacity on which the entitlement to
those contributions is based.
(7) In
subsection (6)—
"relevant percentage" means the percentage of earnings that is the minimum
percentage required by law to be paid as employer superannuation
contributions.
(8) The maximum amount
of damages that may be awarded to a self-employed person for economic loss in
relation to personal injury arising from an MVA motor accident due to the loss
of superannuation contributions made by or on behalf of the person is the
relevant percentage of damages payable for the loss or impairment of the
earning capacity on which the entitlement to those contributions is based (but
nothing in this subsection gives rise to an entitlement to damages beyond
damages awarded for loss or impairment of earning capacity).
(9) In
subsection (8)—
"relevant percentage" means the percentage of earnings that is the minimum
percentage required by law to be paid as employer superannuation contributions
for the benefit of an employee who earns the same amount as the self-employed
person.