Most personal injury cases in Victoria are based on the law of negligence – namely that an accused party (the defendant) owed another person a duty of care, the defendant breached that duty of care and injury to another party was suffered as a result (the plaintiff).
Less commonly personal injury cases are brought for intentional torts. This is where a wrongdoer intentionally causes harm to another person; for example, physical assaults or sexual abuse.
Sometimes intentional torts and negligence overlap and a plaintiff may have a claim for both as a result of the same act.
For instance, where a teacher commits a sexual assault against a student, this is intentional tort and the student would likely have a claim against the teacher. If the student can further demonstrate that the school was aware that the teacher was a risk of committing sexual assault against students and did not prevent it, the student may also be able to bring a negligence claim against the school.
A practical barrier to such claims is that individual wrongdoers frequently have no financial resources to pay compensation, even if the plaintiff is successful.
In Victoria there are limits on the rights to bring a claim for some types of losses in a personal injury. These are governed by the Wrongs Act 1958 (Vic). Generally this law requires that a plaintiff must prove that they have suffered a significant injury in order to access compensation for their pain and suffering.
The Act does provide some exceptions to the significant injury requirements through the creation of a protected category of cases. Under these exceptions, an injury is deemed to be significant if it is:
- loss of a foetus
- psychiatric or psychological injury arising from the loss of a child due to an injury to the mother or the foetus or child before, during or immediately after birth; or
- loss of a breast.
Significant injury requirements also do not apply 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."
Considering this, the provision would apply only to claims against the original wrongdoer and not to a claim of negligence by another defendant.
In applying this interpretation to the example above, the exemption would apply in a case against the teacher for sexual abuse of a child, but not to the school whose leadership were aware of the risk to children and negligently failed to protect the student.
Conflicting case studies
In Cugmeister v Maymac Foods Pty Ltd  VCC 1121 Judge Misso determined that the exception to the significant injury requirements applies only when the cause of action is directly connected to an intentional act on the part of the wrongdoer.
In contrast, it has been argued that the provision does not distinguish between classes of defendants, instead only attaching to the type of wrongful act.
This was the approach taken in the recent matter of Thompson v State of Victoria  VCC 166 where Judge Brookes of the County Court found that the plain wording of the section was sufficiently broad. Under this finding, the plaintiff was therefore permitted to pursue his claim without the need to prove he had suffered a significant injury.
What does this mean?
The controversial nature of this issue and the two conflicting County Court decisions meant it was unsurprising when an appeal against the decision in Thompson was filed in March 2019.
Given that current state of uncertainty about how these provisions should be interpreted, court guidance or legislative clarification on this issue would be useful for practitioners in the area.
If you or someone you know has been victim to an intentional torts and/or negligence, call one of our expert lawyers on (03) 9321 9988.