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Published: 26 November 2019
Author: Peter Claven

Recent case impacts the future of compensation for 'public liability' claims

The Victorian Court of Appeal, Victoria's highest court, recently handed down the decision of State of Victoria v Allan Thompson which will potentially impact injury cases in the future.

This case related to what are generally known as "public liability" cases. These are cases that do not fall under the WorkCover or TAC schemes. Medical negligence cases may be perceived to be in a different category from public liability cases, but the law that governs both types of claims is the Wrongs Act 1958, which is Victorian legislation.

This legislation requires anyone injured in Victoria who wishes to claim pain and suffering damages to obtain a "significant injury" certificate. This certificate is obtained by the injured person being assessed by an appropriately qualified specialist, who assesses their injuries in accordance with special medical guidelines and provides an assessment of the level of impairment.

If the impairment is high enough, the injured person is considered to be significantly injured and has an entitlement to claim common law damages for pain and suffering. If the threshold cannot be established, then the injured person is limited to claiming economic loss damages and cannot claim pain and suffering damages.

The impact of the significant injury test

This very often creates an unfair situation for an injured person. They may sustain an injury that changes their life significantly, but all injuries, even some life-changing ones, do not qualify as being a "significant injury". For example, numerous injuries to the ankle, knee or shoulder do not satisfy the significant injury test.

The recent decision relates to a particular subset of cases where the injury was caused by an act with the intention to cause death or injury. These cases are different from those where it is an act of negligence that is alleged to have caused the injury. The Wrongs Act recognises injury caused by intentional acts as a more serious category and as such does not require the injured person to obtain a significant injury certificate to be able to claim pain and suffering damages.

For example, a person is walking home from their local shopping centre and they’re assaulted by someone, punched and kicked, and their valuables taken. Depending on the nature and extent of the injury, it may well be that the injured person would not satisfy the significant injury test, depending upon the long-term consequences of the injuries. However, under the Wrongs Act, as it was an intentional assault there is no need to establish a significant injury and the injured person could claim pain and suffering damages from the person that assaulted them.

Unfortunately, in cases like this, it is sometimes very hard to obtain any damages from the offender as they are unlikely to have any assets to pay any award of damages to the injured person.

About Victoria v Allan Thompson

The dispute in State of Victoria v Allan Thompson came about as Thompson was stabbed by a fellow inmate at a prison. The claim made by Thompson was not against the other inmate but against the operator of the prison itself (ultimately, the State of Victoria).

The argument then came about whether because the claim was not directly against the assailant, was the injured person required to obtain a significant injury certificate?

The arguments boiled down to interpretations of the wording in the Wrongs Act and case law. The Court confirmed that even in those situations where the party that caused the injury is not the defendant in the case, a significant injury certificate is not required.

This will affect many scenarios, for example:

  • When a student of a school is assaulted by another student and it is alleged that the school knew of a prolonged course of bullying of the victim;
  • Where a patient in a hospital is assaulted by another patient when it was known by the hospital that the assailant was dangerous and was not properly monitored; and
  • Where someone is assaulted by another patron in a pub or restaurant and it is alleged that the pub or restaurant did not have appropriate security or other measures in place.

The decision ensures that anyone with a duty of care to someone injured as a result of an intentional act are not able to avoid a claim for pain and suffering damages due to a legal technicality.

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