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The Court of Appeal has dismissed an appeal by the State of Victoria which will open up access to general damages for survivors of intentional acts

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The Court of Appeal has dismissed an appeal by the State of Victoria which will open up access to general damages for survivors of intentional acts

To date, there has been ambiguity around whether a claimant needed to satisfy the requirements of Part VBA of the Wrongs Act 1958 in order to be awarded non-economic loss or ‘general’ damages in cases where that person makes a claim against an occupier of a premises where there has been an intentional assault/battery committed on them by another person. The same may arise in a claim brought in negligence against an organisation for intentional torts committed by those connected with that organisation, on the premises or elsewhere where the claimant was under the care or control of the organisation and the people they engaged.

The requirements of Part VBA require claimants to establish they have a ‘significant injury’ as defined to be entitled to an award of general damages. Defendants are able to challenge a certificate of assessment served in compliance with Part VBA by a referral to the Medical Panel. These requirements exclude claims if the fault of the person (to whom the claim is directed) is or relates to an intentional act that is done with the intent to cause death or injury.

Friday’s decision of the Court of Appeal has provided clarity to the provisions, and opened up a pathway for victims of intentional torts (such as assault, battery, or other intentional acts done with the intent to cause injury) so that those claimants who bring their claim against a party which did not itself carry out the intentional act, are not required to comply with the requirements of Part VBA. That is because the claim they bring ‘relates to’ an intentional act and that is therefore excluded from compliance with Part VBA.

The case under the Court of Appeal’s scrutiny involved a prisoner at a State run prison who was stabbed by another prisoner. He pleaded a case in negligence/breach of statutory duty against the State. The State pleaded in its defence that he was precluded from recovering non-economic loss damages against it because he had not complied with Part VBA. The claimant then took steps to comply with the requirements of Part VBA, but refused to attend the Medical Panel on referral from the State.

A hearing was conducted in the County Court and Judge Brookes preferred the arguments of the claimant and that there was a presumption against legislation which altered common law rights in the absence of clear words to that effect. The Court of Appeal did not agree with the reliance on the presumption, preferring the interpretation of the section itself when they concluded it did not limit the words to require the claimant to comply with the threshold requirements under Part VBA.

What does this mean?

People who have experienced an injury as a result of an intentional act by another person at a premises can bring a claim in negligence against the occupier of that premises without the need to comply with Part VBA to be eligible for an award of general damages. This is so whether the perpetrator of the abuse is involved in the claim or not.

Examples, other than prisoners v prisons, include:

• students injured in an assault/battery at a school or child care service who bring a claim against the operator of the school. This will likely extend to bullying claims which do not involve physical altercations, where the actions or the statement made by the perpetrator was calculated to cause harm; Wilkinson v Downton.

• residents in aged care or disability care facilities subject to abuse or mistreatment bringing a claim against the provider.

• survivors of sexual/physical or other forms of abuse will not be required to meet the Part VBA threshold requirements in their claims against the organisation connected with the abuse, including where the abuse occurs offsite while they were under the care of the organisation.

It may extend to family members of victims grossly injured or who die as a result of the conduct of another person and bring a claim for pure mental harm against the occupier of the premises or the party against whom a claim in negligence is brought.

There may be significant implications in the insurance industry given a number of policies will exclude damages awarded for intentional acts.

There may be a number of matters presently on foot which will be affected by this judgment, perhaps where there has been compliance with Part VBA to date, and reliance on a Medical Panel determination to avoid general damages which will need to be revisited. There may also be a number of matters presently before the Medical Panel that will be sought to be withdrawn.

This determination may also remove an impediment to survivors of abuse from bringing a claim against a party other than the perpetrator. It could therefore see an increase in the number of claims made.

If you wish to learn more about the issues identified in this note, please contact Ingrid Nunnink, Tim Finemore or Tessa Pham.

Disclaimer: This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

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