On 25 October 2019 the Victorian Court of Appeal handed down a decision which provides some clarification on the need for claimants to satisfy the "significant injury" threshold in claims concerning or relating to intentional acts under the Wrongs Act 1958 (Vic) (Wrongs Act).1
The decision confirms that a claimant is not required to establish they have a significant injury to claim general damages if they have been injured as a result of an intentional act with intent to cause harm, or sexual assault, or other sexual misconduct. However, in cases involving a claim in negligence or breach of statutory duty, the significant injury threshold must still be satisfied for a claimant to claim general damages.
Another noteworthy aspect of this decision, and of particular concern for defendants, is that the relevant "intentional act" need not be committed by the defendant for the significant injury exception to apply. It is enough that the fault concerned relates to an intentional act.
The case concerned a claim for damages by a prisoner, (Thompson), who was stabbed by a fellow inmate at Dhurringile Prison. Thompson alleged that his injuries were caused by the negligence and/or breach of statutory duty by the State of Victoria (State) and sought general damages against the State without having satisfied the "significant injury" threshold under Part VBA Wrongs Act.
Part VBA provides that a claimant is not entitled to recover general damages unless the person has suffered a "significant injury".2 Thompson contended that his claim against the State "relates to" an intentional act committed by the fellow inmate within the meaning of section 28LC(2)(a) Wrongs Act. This section relevantly provides:
(2) This Part [Part VBA] does not apply to the following claims for the recovery of damages for non-economic loss -
(a) a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct.
On this basis, Thompson asserted that although his claim against the State was pleaded in negligence and breach of statutory duty, it nonetheless "relates to" an intentional act with intent to cause harm and was therefore exempt from the requirements of Part VBA.
The State submitted that Thompson would only be entitled to seek general damages without satisfying the "significant injury" threshold as against the perpetrator of the intentional act and not the State.
The issue before the Court therefore turned on the meaning of the words "or relates to" in section 28LC(2)(a) and whether the "fault concerned" should be confined to the act or omission of the State, or extended to include a third party, in this case, the fellow inmate.
In short, the Court of Appeal confirmed that:
- Thompson was not required to satisfy the "significant injury" threshold under Part VBA to claim general damages in circumstances where the fault concerned "related to" an intentional act (in this instance, the intentional stabbing of Thompson);
- There was no justification for limiting the provision in section 28LC(2)(a) to intentional conduct committed by the perpetrator only, as submitted by the State;
- Where a claim concerns allegations of an intentional act and, in the alternative a mere negligent infliction of harm, the claimant will need to establish a "significant injury" for the claim in negligence; and
- Claims to which the exception to "significant injury" apply are not limited to intentional acts done with intent to cause harm such as Wilkinson v Downton claims,3 but extend to alleged intention to cause injury claims, including assault, battery and false imprisonment.
Key learning from the case
- For claims in which the fault concerned is or "relates to" an intentional act, including assault, battery or false imprisonment, regardless of whether the claimant claims against the perpetrator or a third party, this decision confirms that a claimant does not need to satisfy the "significant injury" threshold to claim general damages;
- However, if the case involves allegations of both an intentional act and in the alternative a wrongful or unintentional act, (such as negligence or breach of statutory duty), a claimant will need to satisfy the significant injury threshold for the claim in negligence or breach of statutory duty to be entitled to recover general damages.
- Claims for general damages that would not otherwise have been available under Part VBA Wrongs Act, may be pursued against a defendant even though the intentional act was not committed by the defendant. It is sufficient if the fault concerned "relates to" an intentional act, whether committed by the defendant or some other person.
- This is particularly concerning for operators of hospitals, shopping centres, schools, correctional centres, institutional care providers, hotels and security services, where claims in assault and battery are increasingly being brought as an alternative cause of action to claim general damages that may not otherwise have been available under Part VBA Wrongs Act.
- According to this decision, not only may those institutions be liable for their own intentional conduct, but arguably for any intentional act committed on their premises or while a claimant is in their care.
- Further, if the claimant is successful in proving his or her injuries have arisen out of an intentional act, damages are at large, meaning the cap on general damages under Part VBA Wrongs Act does not apply and the claimant may seek punitive damages that are not otherwise available for Wrongs Act claims. This is likely to result in a rise in claims for insignificant or impermanent injuries preluded by Part VBA Wrongs Act.
- Given the potential implications for defendants and their insurers we await the State's next steps with interest.