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Tort Law - Negligence

Threshold Incapcity

Whether or not harm has occurred is normally going to be easy to prove. Medical diagnoses, repair quotes or bills, photographs, bank statements, debt recovery activity, and independent eyewitnesses tend to give a plain account. When it comes to forms of harm other than physical or psychological, this is sufficient grounds on which to prove that actionable harm has occurred. However, in response to growing difficulties with the permissiveness of the judiciary toward plaintiffs during the 1980’s and 1990’s, major law reform occurred in accord with the so-called Ipp Review.[1] The result was that in the early 2000’s each state and territory amended its tort law legislation.


One of the key recommendations was to eliminate frivolous injury claims by placing a lower limit on the amount of personal harm a person could sue for. Consistent with the medical practice of calculating the amount of incapacity to a percentage, the minimum actionable percentage of post-injury capacity has been set in State and Territory legislation. The minimums range between five percent and 15 percent; in some jurisdictions the minimum for a suit over mental harm is higher than that for physical harm. Evidence from a medical practitioner as an expert witness, therefore, is crucial.

For an investigator, when investigating an insurance claim for personal injury, whether already paid or pending, this enumeration of harm is irrelevant. For the supposedly defrauded insurer, their harm is purely financial, resulting from a contractual obligation. For the insurance claimant, they are not suing for damages at negligence, but for the performance of an insurance contract. Percentage of incapacity therefore does not come into the calculus and need not be enquired into at all in such cases. Percentages of incapacity, as with pain and suffering issues, are relevant when it is the party allegedly at fault, not their insurer, that is being sued. In any case, however, where such is relevant, it will normally be furnished directly to the lawyers by an independent medical examiner who is prepared to appear at court as an expert witness.



[1] Ipp, the Hon David, et al, Review of the Law of Negligence, Final Report, Commonwealth of Australia, 2002.

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