Since the application of Comcare v Bozicevic (1997) to PI claims, it is possible for a claimant with a 1971 Act impairment to access additional compensation for non-economic loss under s 27 the SRC Act if the assessment is made at any time after the commencement of that Act on1 December 1988. This is despite the fact that no such additional compensation for NEL was payable if the claim was assessed prior to 1 December 1988.
In many instances, such an assessment occurs where the claimant is able to prove that there has been a deterioration of the impairment since the initial assessment prior to the SRC Act and therefore applies for additional compensation. If the claimant is successful in claiming that additional compensation is payable for the deterioration, additional compensation is also payable for non-economic loss.
In releases of the PI Calculator prior to version 2, the Calculator would automatically allow for non-economic loss compensation if a reassessment was done after 1 December 1988 irrespective of whether there was any deterioration of the impairment since the initial assessment was made.
In version 2 any reassessment of a 1971 impairment made on or after the release of Defcare version 1.3 will require an additional test for deterioration of the impairment to be applied
This issue will be tested either through this question or, where loss of efficient use is applicable, by determining whether there has been any deterioration in the loss of efficient use in relation to the impairment.
Where there has not been any deterioration, compensation for non-economic loss will not be paid.
Note that, where the application for permanent impairment compensation is made on or after 7 December 2000, amendments to s 27 of the SRC Act provide that no entitlement to NEL arises in respect of a pre-1/12/88 impairment.