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Limelight 04/19

Current uncertainty regarding the significant injury threshold exception in Victoria

Authors, Nicole Norris , Carla Downes

Under Part VBA of the Wrongs Act 1958 (Vic) (Wrongs Act) there is a threshold degree of injury which plaintiffs must satisfy, namely a ‘significant injury’, in order to claim damages for non-economic loss. An exception to this threshold exists in section 28LC(2)(a) for claims ‘where the fault concerned is, or relates to, an intentional act that is done with the intent to cause death, injury or that is sexual assault or sexual misconduct.’ This section theoretically allows a victim of an assault to bring a civil claim for non-economic loss damages without satisfying the threshold.

The use of the phrase “or relates to” in the wording of section 28LC(2)(a) has created uncertainty in the context of a claim which is made against a party other than the assailant.

In the recent ruling of Thompson v State of Victoria[1], his Honour Judge Brookes allowed the Plaintiff to pursue such a claim for non-economic loss by relying on the exception in section 28LC(2)(a).

In this case, a former inmate of a prison brought a claim against the State of Victoria for injuries sustained in a stabbing by a fellow prisoner. The plaintiff claimed that the State’s negligence in failing to secure knives at the prison and failing to adequately supervise the inmates were causes of the stabbing. The State pleaded in its Defence that the plaintiff had not satisfied the significant injury threshold and therefore could not pursue a claim for non-economic loss.  The plaintiff brought an application to strike out this pleading and the Court granted the application and struck out that paragraph of the Defence thereby allowing the claim to be brought without meeting the significant injury threshold.

The State submitted that section 28LC was enacted to differentiate between liability for intentional misconduct and ordinary negligent misconduct. It submitted that it would not be fair for a plaintiff to rely on the exception in section 28LC if a negligent defendant “did no more than create the opportunity for/the risk of the intentional act causing injury to occur.[2]

In reaching his decision, his Honour referred to the New South Wales Court of Appeal case of State of New South Wales v Bujdoso[3] that considered the interpretation of the phrase ‘in respect of’ in a comparable context in the Civil Liability Act 2002 (NSW). In Bujdoso, it was found that civil liability ‘in respect of’ an intentional act did not extend to negligence for the risk of the intentional act causing injury; however, his Honour observed that the Victorian Parliament elected to use different words, and the phrase ‘in respect of’ is a narrower concept than the phrase ‘or relates to’.

His Honour found that ‘or relates to’ can be interpreted more broadly and was consistent with the underlying purpose of the Wrongs Act. He considered “that a separate category or categories of cause of action were “protected” from the threshold”[4] i.e. assaults. Ultimately, his Honour followed the presumption against alteration of common law rights and allowed the plaintiff to rely on section 28LC(2)(a) and avoid the threshold.

This ruling contrasts with previous judicial interpretation of section 28LC by his Honour Judge Misso in Cugmeister v Maymac Foods Pty Ltd [2012] VCC 1121.

In Cugmeister, the plaintiff was assaulted by an unknown customer in the McDonald’s restaurant. The plaintiff claimed that the assault occurred because of the negligence of the defendant restauranteur (presumably in failing to prevent the assault) and claimed the exception to significant injury applied because the fault related to an intentional act.

His Honour stated that, in order for the plaintiff to rely on section 28LC, he would need to “interpret the words “or relates to” as encompassing the conduct of the Defendant in failing to take reasonable steps to minimise or eliminate the risk that a patron of its restaurant might be assaulted in its restaurant premises[5]. He was unwilling to apply this interpretation and dismissed the plaintiff’s application holding the plaintiff was required to meet the threshold.

His Honour relied predominantly on the dictionary definition of ‘related,’ which includes ‘connected’, and found that ‘the words “or relates to” were intended by the legislature to include a claim closely connected to the claim made by the victim against the tortfeasor. For example, a parent of a murder victim, or the dependants of a murder victim…[6].

His Honour considered the legislature intended to permit “a limited category of persons to make a claim without needing to satisfy the threshold level[7].

However, in Thompson, Judge Brooks took a broad view that if a cause of action relates to an intentional act, no matter the tortfeasor, the victim can rely on section 28LC to preserve their common law right to non-economic loss damages. His Honour acknowledged the State’s contention that 6 years had elapsed since Cugmeister had been decided with no intervention by Parliament to correct the decision through statute, which suggested the legislature was satisfied with the decision. Nevertheless, his ruling makes it clear he disagreed with Judge Misso’s view of the exemption.

It is worth noting that the State, the defendant in Thompson, conceded that a plaintiff who brought a claim against a defendant alleging it was vicariously liable for the intentional act of another was within the scope of the exemption.

Given the different rulings in relatively indistinguishable scenarios, there is now uncertainty as to whether the threshold for significant injury applies to liability claims for negligently creating a risk of injury by an intentional act or failing to prevent an intentional act.  It is therefore not surprising that an appeal of the Thompson decision was filed in March 2019.

We will provide a further update on the issue upon delivery of the Court’s judgment, hopefully later this year.

17 April 2019

[1] [2019] VCC 166.
[2] Ibid [10].
[3] [2007] NSWCA 44.
[4] Thompson v State of Victoria [2019] VCC 166, [19]
[5] Cugmeister v Maymac Foods Pty Ltd [2012] VCC 1121, [11]
[6] Ibid, [17]
[7] Ibid, [18]
This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.