In a recent case, Williams sought damages against Coles Supermarkets for both pecuniary and non-pecuniary loss under the Wrongs Act (Vic) 1958 for breach of duty as an occupier. In order to recover damages for non-pecuniary loss a Plaintiff needs to establish that his/her injury meets the threshold for significant injury. 

A Medical Panel determined on 5 May 2015 that, Williams did not meet the threshold, as her physical injury was not more than 5% AMA (4Ed) whole person. 

Williams commenced an Application on 6 November 2015 to seek leave of the Court to extend the time in which to seek judicial review of the Panel's determination. Williams wished to revisit the issue of significant injury in light of recent amendments to the Wrongs Act which, acting retrospectively, lowered the threshold for significant injury.

Williams was outside the prescribed 60day period in which to issue such proceedings and would therefore need to establish special circumstances for the Court to make these Orders.

Special circumstances were established and leave was granted, notwithstanding the Application was made 125days after the expiration of the review period.

Williams' submissions

Williams advanced many submissions in an attempt to persuade the Court that special circumstances existed which warranted the extension of time, including:  

  • the Medical Panel had misinterpreted the decision of Mountain Pine Furniture Pty Ltd v Taylor1 in failing to assess her surgical scarring.  Williams argued that had the Panel assessed scarring her impairment would have exceeded the 5% threshold.  In Williams view this was a "manifest or strongly arguable case for error" by the Medical Panel.  
  • the Wrongs Amendment Act 2015, which commenced on 19 November 2015 and acting retrospectively, lowered the relevant threshold to '5% or more' rather than 'more than 5%'.    
  • Williams' solicitor had not considered an application for judicial review until counsel suggested it.  Once he was aware of such possibility he had acted diligently.  There was accordingly no delay.  
  • she had continued to pursue her County Court proceeding, i.e. Williams had not sat on her hands with respect to her claim against the Defendants.  
  • there was no significant prejudice to the Defendants in allowing the extension, whereas the Plaintiff would be precluded from seeking non-pecuniary loss damages.

Defendants' submissions

In reply Defendant's 1 and 4 (Defendants 2 and 3 not participating in the application) submitted:  

  • the period of delay was substantial.  
  • a difference of opinion between Williams' barrister and solicitor did not constitute 'special circumstances'.  
  • Williams had ample time to consider the application of Mountain Pine prior to the expiry of 60 days.  
  • the Wrongs Amendment Act had come into operation after the 60day review period had expired.  
  • in the decision of Stapleton v Central Club Hotel2  Judge Saccardo held that the Amendment Act should not be interpreted as having retrospective application so as to displace the existing Medical Panel opinion.  Saccardo J reasoning that if the Amendment Act had intended to operate retrospectively so as to displace an existing Medical Panel opinion, it should have done so expressly, in the same way it dealt with other aspects of retrospectivity.    
  • as (in its view) the Medical Panel had considered the matter correctly there was no guarantee Williams would succeed in an application for judicial review.

Held

Associate Judge Ierodiaconou noted that the 'special circumstances' did not need to be part of the reasons for the delay. The Court must consider the overall context of the delay and several factors may combine to constitute 'special circumstances'.  A factor does not need to be 'unusual' but it must support an extension of time, additionally, 'Special circumstances' may arise after the expiry of the time limit.

It was noted that the effect of the Mountain Pine decision had been overcome with legislation in TAC and workers' compensation context, but not in the context of public liability. There was no clear case that it was not open for the Medical Panel to apply Mountain Pine in the way it did.  Further, even if it had assessed scarring it might still have found that the impairment was 'not more than 5%'.

The Court considered whether the lowered threshold under Amendment Act should apply retrospectively.  The Associate Judge concluded that the Supreme Court was not bound by the Stapleton decision. Further the 2nd Reading Speech and Explanatory Memorandum were consistent with the ordinary meaning of s.28LZS(2), that is the lowered threshold could apply. The question was whether Williams' proceeding had been finally determined prior to the commencement of the Amending Act, 19 November 2015. The Court concluded a Medical Panel decision did of itself finally determine Williams' proceeding as did remain, and will remain, on foot in the County Court until judgment.

The Amendment Act was not a 'special circumstance' in itself. However the effect of its amendments upon Williams, which was not known until after the expiry of the review period, did.

In balancing the ledger The Court noted and recognised such application will further delay the finalisation of existing court proceedings, as well as drain Supreme Court resources. Whilst the public interest in the finality of the litigation was a factor that went against Williams, overall the above considerations supported the existence of 'special circumstances'. 

Discussion

Clearly similar applications for an extension of time will be likewise successful. To be similar requires the primary damages proceeding to be currently on foot, or at least not finally determined, as well as being within 185 days since the Panel Opinion was handed down.

How far the Court will extend the time in which to allow such applications outside of 185days from the Panel's Opinion, is yet to be seen.

Insurer's can now expect a flurry of such applications or alternatively requests to consent to the commencement of judicial review outside of the 60day review period. Our recommendation at this stage is to consent in circumstances where the review would be commenced inside of 185days, or close to that time. For a significant departure from that timeframe such as 300days, the Court should be asked to reconsider the approach adopted by Lerodiaconou, in light of public interest considerations requiring finality of litigation.