Intentional torts and certificates of assessment under the Wrongs Act
21st Mar 2019
The requirement under the Wrongs Act 1958 (Vic) for victims of sexual or physical assault to provide certificates of assessment for the purpose of claiming pain and suffering damages was specifically excluded by the legislation governing matters involving sexual assault. In particular, s28LC(2)(a) provides that the impairment threshold is not required to be met ‘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’.
Cugmeister v Maymac Foods Pty Ltd  VCC 1121 involved a claim in negligence against the occupier of a premises where an assault occurred. The judge found that the exclusion related only to the commission of the intentional tort and not to the claim brought in negligence against the perpetrator’s employer.
Judge Misso said, ‘I think that what the legislature intended was to permit a limited category of persons to make a claim without needing to satisfy the threshold level where the claim is based on a cause of action directly connected to an intentional act on the part of the tortfeasor. Such an interpretation is consistent with the drafting of paragraph (a), and the intention of the legislature to make the tortfeasor directly and personally responsible for the consequences of his/her actions in committing an intentional act which causes death or injury. It is for these reasons that I am not satisfied that the legislature intended that a person whose negligence creates a risk that a victim might be assaulted and battered is within what the legislature intended by the use of the words “or relates to”. For the reasons which I have made plain, extending the meaning of those words to include the conduct of the defendant in this case would be to rewrite paragraph (a) and give it a wider compass then those narrow words contemplate.’
The Cugmeister decision has created particular difficulties for victims of child sex assault where defendants have sought to rely on the thresholds to minimise damages awards/settlements.
On 25 February 2019, Judge Brookes of the County Court handed down a decision in the matter of Thompson v State of Victoria  VCC 166 as to whether the plaintiff was obliged to comply with Part VBA of the Wrongs Act (which involves establishing in psychological injury cases a level of permanent impairment of 10% or more) in order to be entitled to pain and suffering damages.
The facts did not involve a victim of child sex abuse but involved a claim for damages for injuries sustained by the plaintiff when he was stabbed by another prisoner while he was an inmate at Dhurringile Prison. Mr Thompson sued the State of Victoria (the State) in negligence and breach of statutory duty. The State argued that in the absence of establishing that he had suffered a ‘significant injury’, Mr Thompson was not entitled to general damages and issued a strike out application arguing that Mr Thompson had failed to comply with Part VBA of the Act.
In reaching his decision, Judge Brookes noted:
‘When Parliament enacted Part VBA of the Act, it is clear enough on the plain meaning of s28LC(2)(a), that a separate category or categories of cause of action were “protected” from the threshold.’
On this basis, Judge Brooke’s concluded:
‘… there are two alternative constructions of the relevant legislation open, but I feel constrained to the construction that the common law right such as is litigated before me has not been expressly removed by the relevant legislation and accordingly paragraph 9 of the Amended Defence is struck out.’
This is an important decision in particular for victims of child sex assault with some defendants insisting on reliance on the significant injury thresholds under the Wrongs Act but with most being prepared to negotiate in the absence of a significant injury certificate.
While most survivors of child sexual assault would have no difficulty overcoming the 10% psychiatric impairment threshold, there are almost always complex causation issues. In any event, having a medical panel (whose decisions are binding under s28LZG of the Wrongs Act) essentially determine a plaintiff’s right to pain and suffering damages in these complex and sensitive cases is clearly inappropriate, as was the attempt by institutions who shielded the perpetrators to seek to rely on a provision to their benefit which the perpetrators themselves were rightly clearly excluded from relying upon.
Angela Sdrinis is a personal injuries accredited specialist and the director of Angela Sdrinis Legal, a specialist institutional abuse practice. Angela has represented victims appearing before the Royal Commission into Child Abuse, is a member of the advisory board to the Knowmore Legal Service and has been called to give evidence before the Senate in the Forgotten Australians Inquiry and the Victorian Parliamentary Inquiry which resulted in the Betrayal of Trust Report.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).