Wrongs Act amendment: Implications for injured Victorians

Wednesday 18 January 2017
Ursula McBride

The recent Court of Appeal case of Mitchell v Latrobe Regional Hospital [2016] involved a Plaintiff, Mr Mitchell, who sought compensation for psychiatric injury he alleges he sustained as a result of negligent medical treatment he received as a patient at the Latrobe Regional Hospital.

The Court addressed certain issues that had arisen from the 2015 amendments to the Wrongs Act 1958, the legislation governing many types of personal injury claims in Victoria, and in particular whether an injured claimant could be assessed again under lowered injury thresholds where a Medical Panel had made a binding determination prior to the amendments.

The case is likely to have significant implications for people injured in Victoria, particularly those who sustained spinal or psychiatric injuries prior to the amendments.

The Legislation

The Wrongs Act imposes limits on access to compensation for loss arising from personal injury and death in Victoria, such as in public liability or medical negligence claims. An injured claimant cannot recover pain and suffering damages unless they are assessed as meeting the required injury thresholds. If a claimant is certified as having met the required threshold, they must serve a copy of the certification on any party they allege is responsible for their injuries, who can then, within certain time limits, refer the claimant to an independent Medical Panel for a binding determination on whether their injuries meet the thresholds.

The Thresholds

Prior to 19 November 2015, the relevant thresholds were:

  • for physical injuries, an injury assessed at greater than 5% permanent impairment; or
  • for psychiatric injuries, an impairment assessed as permanent and greater than 10%.

From 19 November 2015, the Wrongs Act was amended in relation to spinal and psychiatric injuries. Whilst the general physical injury threshold remained at greater than 5%, the new thresholds for permanent impairment were:

  • for spinal injuries, 5% or more; and
  • for psychiatric injuries, 10% or more.

This means a broader group of injuries involving permanent spinal injury may now qualify for pain and suffering compensation.

The Amendments apply retrospectively, providing a claim has not previously been settled or has not been subject to a judgment.

The Judgment

In Mr Mitchell’s case, the Court found that claimants can seek a review of their entitlement to bring a claim for pain and suffering damages if their injuries are now assessed using lower injury thresholds introduced by the amendments. This applies even where a Medical Panel has made a binding determination prior to the amendments, that the claimant’s injuries did not meet the thresholds in place at the time.

The effect of this decision is that some cases that were previously finalised, can now be re-opened.

Often, claims were not pursued once a Medical Panel determined that a claimant’s injuries did not meet the previous injury threshold. However, now a Medical Panel determination can be disregarded if a claimant obtains a new assessment stating their injuries exceed the new, lower injury threshold.

If you have suffered a spinal or psychiatric injury in Victoria and your injuries were previously assessed below the required threshold, you should contact Adviceline Injury Lawyers to urgently review your prospects of now successfully seeking compensation.

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