Recently, His Honour Judge Robin of the Brisbane District Court has had two opportunities to consider the definition of “personal injury” as it is defined under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Both decisions regarding this definition may have consequences for personal injury litigation within Queensland.

The definition of personal injury

Within the Schedule of PIPA, personal injury is defined as including:

(a) fatal injury; and

(b) prenatal injury; and

(c) psychological or psychiatric injury; and

(d) disease.

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Further, section 6 of PIPA suggests that PIPA applies to all personal injury arising out of an incident occurring before, on or after 18 June 2002, save for where the Motor Accident Insurance Act 1994 (Qld) or Workers Compensation and Rehabilitation Act 2003 (Qld) apply.

Mitchell & Ors v Reedy & Anor [2011] QDC157

This application was in relation to an attack on both the applicant and respondent’s pleadings, and included the Court determining fundamental questions as to whether or not the Plaintiff’s claim involved personal injury.

The first and second plaintiffs allege that they were assaulted by the first defendant, a police officer, with the allegations of that assault including physical actions such as punching, pulling hair, dragging an otherwise making physical contact with the applicants.

The respondents alleged that the applicant’s claim fell under the mandatory requirements of PIPA, which had not been complied with.

Counsel for the respondents argued that relevantly, “personal injury” must include the ordinary meaning of personal injury such as personal injury which would inevitably be sustained in an assault and battery as alleged by the applicants.

In consideration of the pleadings made by the applicants His Honour Judge Robin referred to the decision of Coffey v Qld [2010] QCA291. Further, His Honour stated:-

“The plaintiff pleaders in this proceeding have been astute not to plead the fact of personal injuries being suffered if anywhere. I am not prepared and I do not think it would be appropriate in this application to proceed on the basis urged by the defendants that the first and second plaintiffs must have sustained personal injury.” 1

Therefore, His Honour found that despite the allegations of physical harm and contact made upon the applicants, in accordance with the position taken with the applicant’s pleadings “What the plaintiffs plead regarding anxiety, distress and the like does not amount to personal injury.” 2

Swindles v Reiter [2011] QDC200

His Honour Judge Robin also was faced with consideration of the definition of personal injury within PIPA in an unusual set of circumstances.

The applicant brought an application pursuant to section 43 of PIPA to commence urgent proceedings. What is unusual is that the applicant’s claim was one based in defamation, with the respondent alleging to have published defamatory material causing psychiatric detriment to the applicant.

Perhaps not helping the respondent’s cause was their attitude toward the applicant’s assertions. Produced before His Honour was a communication from the respondent’s solicitors suggesting that they would not oppose the application under PIPA if the applicant could convince the Court of the necessary elements.3

His Honour found with respect to the injury alleged to have been suffered by the applicant that:

“Personal injuries defined in the Act in a way that brings in psychiatric illnesses. I can see no reason why the legislation would not be applicable to the plaintiff’s claim which seeks damages for personal injuries sustained over a period of time…” 4

What does this mean for personal injury definitions?

The decisions of Swindles and Mitchell have provided some direction as to a further definition of personal injury as it relates to PIPA.

If, on one hand, a plaintiff’s solicitors are astute enough to not plead personal injury per se, a potential is raised to avoid the pre-litigation steps of PIPA in limited circumstances.

Further, and with respect to defamatory statements and defamation generally, it appears that psychiatric harm resulting from same will be regulated by PIPA and the pre-litigation steps will be required.

The decision of Swindles v Reiter can be found here.

The decision of Mitchell & Ors v Reedy & Anor can be found here.