Cugmeister v Maymac Foods Pty Ltd (Ruling)
[2012] VCC 1121
•9 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-11-02423
| PETER CUGMEISTER | Plaintiff |
| v | |
| MAYMAC FOODS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2012 | |
DATE OF RULING: | 9 August 2012 | |
CASE MAY BE CITED AS: | Cugmeister v Maymac Foods Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1121 | |
RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: assault and battery – claim in negligence against the occupier of the premises where the assault and battery occurred – assailant unknown – whether plaintiff obliged to comply with PART VBA of the Wrongs Act 1958 to establish a threshold level of injury – whether section 28LC(2)(a) of the Act applied to the claim not requiring the plaintiff to prove a threshold level – meaning of the expression “or relates to” – application to strike out the defendant's defence that the plaintiff was required to establish a threshold level
LEGISLATION: Wrongs Act 1958, section 28LC(2)(a)
RULING: the plaintiff’s summons is dismissed with costs
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Arnold Thomas Becker |
| For the Defendant | Mr C Winneke | Cornwall Stodart |
HIS HONOUR:
Introduction
1 The plaintiff commenced a proceeding against the defendant by Writ filed 31 May 2011. The defendant filed a Defence on 26 July 2011.
2 The cause of action pleaded by the defendant is based upon the following facts.
3 On 3 December 2010, the plaintiff entered a McDonald's restaurant business conducted by the defendant. He was assaulted by an unknown person, with the result that he suffered a number of injuries. The plaintiff alleges that his injuries, loss and damage occurred as a result of the negligence of the defendant and/or its servants and agents.
4 In its Defence, the defendant admits that the plaintiff was assaulted as alleged, but denies that the assault occurred as a result of its negligence or that of its servants and agents. Further, or in the alternative, by paragraph 7, it pleaded that if the defendant was negligent, the plaintiff is not entitled to recover damages for non-economic loss because he has not complied with the requirements of PART VBA of the Wrongs Act 1958 ("the Act").
5 By a Summons filed 27 July 2012, the plaintiff seeks an order that paragraph 7 of the defendant's Defence be struck out.
6 Mr J Brett of counsel appeared for the plaintiff, and Mr C Winneke of counsel appeared for the defendant.
Part VBA of the Act
7 Part VBA of the Act contains elaborate provisions which are relevant to whether a victim of a tort, to whom the Act applies, is eligible to claim damages for non-economic loss. It provides, among other things, that unless a victim of the tort can meet the “threshold level” defined in section 28LB, then the victim of the tort cannot claim damages for non-economic loss.
8 The particular provision which was central to the submissions made by Mr Brett and Mr Winneke is section 28LC. Subsection (1) is in the following terms:
"(1) This Part applies to claims for the recovery of damages for non-economic loss, accept claims that are excluded by subsection (2) or (3)."
9 Most relevantly, subsection (2) is in the following terms:
"(2)This Part does not apply to the following claims for the recovery of damages for non-economic loss -
(a)a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that his sexual assault or other sexual misconduct."
10 The section was intended by the legislature to permit the victim of an assault to bring a claim against the tortfeasor without needing to satisfy the threshold level.
11 In order for the plaintiff to avoid the need to satisfy the threshold level, I would need to interpret the words “or relates to” as encompassing the conduct of the defendant in failing to take reasonable steps to minimise or eliminate the risk that a patron of its restaurant might be assaulted in its restaurant premises.
12 The language of paragraph (a) is novel, and I think it needs to be unpicked carefully to determine what work the legislature intended it to perform.
13 The “claim” must mean the claim which the tortfeasor makes for damages arising out of the intentional act. The reference to “fault” must mean the cause of action relied upon by the victim. For example, the fault identified by the plaintiff here is an assault and battery.
14 The Shorter Oxford English Dictionary relevantly defines “concerned” as meaning “interested” or “involved”. The most appropriate of those two words to be applied in this context would be the word “involved”; in other words, “a claim where the fault involves … an intentional act …” makes sense. The word “involves” is a perfectly appropriate synonym for the word “concerns”.
15 The Dictionary does not contain a definition of “relates”, but does contain a definition of “relate” and “related”. Meanings given to “related” are “connection” and “connected”. Applying those words would create “a claim where the fault is connected to… an intentional act … .” The words “connected to” are also perfectly appropriate synonyms for the words “relates to”.
16 A comparison of the dictionary definitions of the words “concerned” and “relates” demonstrates that neither are a synonym for the other, although contextually each word could be used interchangeably in limited circumstances. For example, in the context of the application before me, one could say “the application concerns…” and “the application relates to …”. Both make sense contextually. However, the conclusion I have reached is that on a close analysis of both words, it is clear that the legislature intended that each of those words are used to deal with distinguishable subject matter.
17 I think the words “or relates to” were intended by the legislature to include a claim closely connected to the claim made by the victim against the tortfeasor. For example, a parent of a murder victim, or the dependants of a murder victim, would come within the range of persons having a claim where the fault “relates to” an intentional act that is done with the intention to cause death, and actually causes death. The psychiatric injury suffered by the parent and the financial losses suffered by the dependants logically relate to the intentional act. The claim in the first case would be based upon nervous shock, and the claim in the second case would be a dependant’s claim under the Act.
18 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.
19 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.
20 Mr Brett and Mr Winneke each provided me with a very helpful outline of arguments, authorities standing for various propositions, and other documents relevant to tort reform. In particular, parliamentary debates, all of which I found helpful in providing me with an understanding of the reasoning behind the tort reform evident in the provisions of the Act relevant to the application. The materials enabled me to understand better what the legislature intended by paragraph (a) and the categories of potential litigants to whom it was intended to apply.
Conclusion
21 For the reasons set out above, I order that the Summons be dismissed with costs.
22 I will hear counsel on any other orders which should follow this ruling.
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