Author: Eugenia Xanthos
Judgment Date: 25 October 2019
Citation: State of Victoria v Allan Thompson  VSCA 237
Jurisdiction: Victorian Supreme Court of Appeal
Mr Thompson sued the State of Victoria (the State) in negligence and breach of statutory duty contending that he had sustained a significant injury and sought non-economic damages from the State for his injuries.
Mr Thompson further contended by reliance on section 28LC(2)(a), that his claim against the State related to an intentional act done by a fellow inmate with the intent to cause death or injury and thus, fell within the special category of claims protected from having to satisfy the significant threshold required under Part VBA of the Act.
In response, the State argued that Mr Thompson was precluded from relying on section 28LC(2)(a) as a means of circumventing the significant injury threshold requirements of Part VBA and as such, he was unable to recover damages for non-economic loss.
The State argued that it was the statutory intention of section 28LC(2)(a) to differentiate between liability for intentional misconduct and ordinary negligent misconduct. Further, it was the intention behind the phrase "or relates to" in section 28LC(2)(a) that the exclusion was to extend to circumstances where a defendant to a claim is said to be vicariously liable for the intentional conduct of another person.
In support of its defence, the State considered the provision in the context of the principles of statutory construction, relying upon the second reading speech and explanatory memorandum of the Wrongs and Limitations of Actions Act (Insurance Reform) Bill 2003. The State asserted that it was Parliament's intention in the enactment of the provision to narrow the scope of the application of the exclusion in section 28LC(2)(a) to circumstances where a claim was made against the perpetrator of the intentional act and not a third party. The State asserted further that Mr Thompson would only be able to seek damages for non-economic loss without complying with the significant injury thresholds if his claim was made against the inmate responsible for the intentional act, and not the State by virtue of any perceived vicarious liability.
As Mr Thompson's claim fell squarely within the exception, he was permitted to pursue his claim for non-economic loss damages without the need to prove he had suffered a significant injury.
The Court struck out that part of the State's defence which related to s28LC.
In citing the various grounds initially examined by the trial judge, the Court found that Mr Thompson's claim against the State was "a claim where the fault concerned relates to an intentional act done with intent to cause death or injury" and thus caught by the exclusion in section 28LC(2)(a), obviating the need for Mr Thompson to comply with the significant injury threshold in Part VBA.
The Court concluded that there was no justification for the narrowing of the exclusion so that it would only have cause to apply to claims where the intentional act done with the intent to cause death or injury was carried out by the named Defendant. The Court held that the ordinary meaning of the text ought be applied.