Perhaps you’ve had a bad fall at a shopping centre, resulting in an injury? Or maybe you’ve been harmed as a result of undergoing medical treatment? In Victoria, in both circumstances, if your injury was caused by someone else’s negligence or fault you might be able to claim compensation for non-economic loss such as pain and suffering, loss of amenities of life, or loss of enjoyment of life, under the Wrongs Act 1958 (“the Act”).
But there are restrictions on your ability to claim compensation for non-economic loss. Specifically, under Part VBA of the Act, you can only claim damages for non-economic loss caused by the fault of another person when the injury is classed as a ‘significant injury’.
Naturally enough this begs the question as to what qualifies as a significant injury. The Act also provides some exceptions to the need to demonstrate significant injury (in section 28LC(2)).
How do you prove a significant injury?
Injury can include prenatal injury, psychological or psychiatric injury, disease and aggravation, as well as acceleration or recurrence of an injury or disease.
Certain injuries such as loss of a foetus, loss of a breast, or psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or foetus or child before, during or immediately after the birth, plus asbestos-related conditions, are deemed to be ‘significant’ without need of further assessment.
For other injuries, an assessment of the degree of impairment caused by the injury must be made by a qualified, approved medical practitioner. In order to be classed as significant, the degree of permanent impairment must meet a threshold level which is 10 percent or more for psychiatric injury, five percent or more for spinal injuries, or more than five per cent for injuries other than psychiatric or spinal injuries.
In assessing an injury, the medical practitioner must follow certain guidelines and methods. All impairments from injuries arising from the same incident must be included in the one assessment, although psychiatric or psychological impairment caused as a secondary consequence of the injury must be ignored in working out the degree of impairment.
A certificate of assessment stating whether or not the degree of impairment satisfies the relevant threshold level will then be issued, though the practitioner must not state the specific degree of impairment. Two types of certificate – one for degree of impairment arising from a stabilised injury and the other for an injury that has not stabilised – can be provided.
The injured person must then give the respondent a copy of the certificate they intend to rely on in making a claim for compensation.
It should be noted that the Act provides for the respondent – the person accused of causing the injury – to waive the requirement for an assessment of the degree of impairment.
Should the respondent dispute a certificate of assessment for significant injury they can refer the dispute to an independent medical panel (at their own expense) whose decision on this issue is binding.
The case of State of Victoria v Thompson
The result of a recent appeal in the Supreme Court of Victoria has further clarified the s 28LC(2)(a) exception in the Wrongs Act to the requirement that an injury meet a minimum threshold of impairment “where the fault concerned is, or relates to, an intentional act that is done with the intent to cause death, injury or that is sexual assault or sexual misconduct”, particularly where a claim for compensation is made against a party other than the perpetrator of the act.
In State of Victoria v Thompson, Mr Thompson was a former prisoner in Victoria who was stabbed by another prisoner. He sued the State of Victoria alleging negligence and breach of statutory duty for failing to ensure prisoners did not have access to knives, as well as deficiencies regarding the supervision and guarding of prisoners.
In its defence, the state claimed Thompson had not satisfied the significant injury threshold and so could not pursue a claim for non-economic loss.
In its judgment, the Victorian Court of Appeal decided the claimant did not need to establish he had a “significant injury” to claim general damages from the State of Victoria, where he alleged he was the victim of an intentional act as defined in s 28LC(2)(a).
The significance of the Court’s decision is that it allows an injured party to make a claim against a negligent defendant – in this case the State of Victoria, but conceivably also a shopping centre owner, a school, hospital, or hotel – without a significant injury certificate even though that defendant did not commit the intentional act in circumstances where they can be held liable for the person who did.
For those injured by intentional acts, this opens a wider range of claim possibilities against those with a legal liability for the operation of public places, removing the need for the significant injury certificate. As awards of general damages can be substantial, the exposure and liabilities of insurers who cover this type of risk could potentially rise.
At Harris Lieberman, we have more than 30 years of experience in the area of personal injury. If you have sustained an injury and have questions or concerns about whether you need to obtain a significant injury certificate, contact our solicitors on (02) 6051 5100 today for an initial consultation.