State of Victoria (Corrections Victoria Unit of the Department of Justice & Regulation) v Allan Thompson

[2019] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0025

STATE OF VICTORIA (CORRECTIONS VICTORIA UNIT OF THE DEPARTMENT OF JUSTICE & REGULATION)	Appellant
v
ALLAN THOMPSON	Respondent

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JUDGES:	BEACH, OSBORN JJA and KENNEDY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2019
DATE OF JUDGMENT:	25 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 237
JUDGMENT APPEALED FROM:	[2019] VCC 166 (Judge Brookes)

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TORT – Negligence – Breach of statutory duty – Personal injury claim – Plaintiff stabbed by fellow prisoner – Proceedings against State claiming damages for non-economic loss – Whether plaintiff’s claim subject to Part VBA of the Wrongs Act 1958 – Whether plaintiff’s claim relates to intentional act done with intent to cause death or injury – Wrongs Act 1958, ss 28C, 28LC and 28LE.

WORDS AND PHRASES – ‘Fault’ – ‘Relates to’ – ‘Is, or relates to’ – Wrongs Act 1958, Parts VB and VBA.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S A O’Meara QC with Ms R Kaye	Victorian Government Solicitor
For the Respondent	Mr J P Brett QC with Mr Y C Chen	L Y Tonge & Co

BEACH JA
OSBORN JA
KENNEDY AJA:

1. On 13 June 2014, Allan Thompson (‘the plaintiff’), who was then an inmate at Dhurringile Prison at Murchison, was injured when he was stabbed by a fellow prisoner.  He subsequently commenced a proceeding against the State of Victoria (‘the defendant’) claiming damages in respect of his injuries.  In his statement of claim, the plaintiff pleaded that his injuries were caused by the negligence and/or breach of statutory duty of the defendant. 

1. By paragraph 9 of its defence, the defendant pleaded that the plaintiff was precluded from recovering damages for non-economic loss because he had not complied with the significant injury provisions of Part VBA of the Wrongs Act 1958 (‘the Act’).[1]

   [1]As to the history, and a short overview, of the significant injury provisions in the Act, see Mitchell v Latrobe Regional Hospital (2016) 51 VR 581, 584-8 [7]-[24].

1. In the Court below, and in this Court, the plaintiff contended that he was not required to comply with the significant injury provisions in Part VBA because of an exception in s 28LC(2) of the Act, which relevantly provides:

(2)This Part [Part VBA] 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 is sexual assault or other sexual misconduct;

…

1. In the Court below, and in this Court, the parties proceeded on the basis that the stabbing of the plaintiff by his fellow prisoner was ‘an intentional act … done with intent to cause death or injury’.  The issue between the parties was, and is, whether the plaintiff’s claim against the defendant is ‘a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury’.

1. On an application made by the plaintiff to strike out paragraph 9 of the defendant’s defence, the primary judge concluded that the plaintiff’s claim was ‘a claim where the fault concerned relates to an intentional act done with intent to cause death or injury’.[2] Accordingly, the judge ordered that paragraph 9 of the defendant’s defence be struck out.

   [2]Thompson v State of Victoria [2019] VCC 166 (‘Reasons’).

1. The defendant now seeks leave to appeal from the judge’s order, contending that the primary judge erred in his construction of s 28LC(2)(a) of the Act and thereupon erred in ordering paragraph 9 of the defence to be struck out.

The relevant statutory provisions

1. Part VBA of the Act contains sections 28LB to 28LZT, and is headed ‘Thresholds in relation to recovery of damages for non-economic loss’. Section 28LE provides:

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

1. The expressions ‘non-economic loss’, ‘injury’ and ‘fault’ are defined in s 28LB as follows:

non-economic loss means any one or more of the following –

(a)       pain and suffering;

(b)       loss of amenities of life;

(c)       loss of enjoyment of life;

…

injury means personal or bodily injury and includes –

(a)       prenatal injury; 

(b)       psychological or psychiatric injury; 

(c)       disease;  and

(d)      aggravation, acceleration or recurrence of an injury or disease;

…

fault includes act or omission;

1. Section 28LF, headed ‘What is significant injury?’ defines a significant injury for the purposes of Part VBA.  Amongst other things, s 28LF refers to impairment assessments, certificates of assessment, threshold levels as defined in s 28LB and medical panel determinations.  Sections 28LG and following deal with the means by which an injured person may seek to establish the existence of a significant injury and the ways in which a person against whom a claim is made may contest the issue of significant injury.

Proceeding at first instance

1. During the course of the proceeding below, the plaintiff initially took steps to comply with the significant injury provisions in Part VBA.  The matter proceeded to a point where the defendant referred medical questions relating to the plaintiff’s degree of impairment to a medical panel.[3]  At that point, however, the plaintiff refused to attend the medical panel — contending that he did not have to satisfy the provisions in Part VBA in order to be entitled to damages for non-economic loss.

   [3]See s 28LWE of the Act.

1. In the hearing before the judge, having refused to attend the medical panel, there was no issue that the plaintiff had not complied with the significant injury requirements in Part VBA of the Act. The argument before the judge turned on the meaning of the words ‘or relates to’ in s 28LC(2)(a). Thus, the question to be resolved (both at first instance, and in this Court) is whether the plaintiff’s claim is ‘a claim where the fault concerned … relates to … [the] intentional act that [was] done [by the fellow prisoner] with intent to cause death or injury’. As we have already observed, the judge answered that question in the plaintiff’s favour.

1. In his reasons for judgment, the judge said that both the plaintiff’s and the defendant’s construction of s 28LC(2)(a) were open, but that the presumption against legislation operating to alter common law rights in the absence of clear words resulted in him preferring the plaintiff’s construction of the section.[4]

   [4]Reasons [26]. See generally, Potter v Minahan (1908) 7 CLR 277, 304; Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 635–6.

Parties’ contentions

1. In its written case, the defendant submitted that the claim referred to throughout s 28LC(2) is that ‘made by the person against the other person identified in s 28LE, and the “fault concerned” is the act or omission by that other person which caused the injury’. The opening stanza of s 28LC(2)(a) thus operated to exclude a claim from the operation of Part VBA if the fault of the ‘other person’ is or relates to ‘an intentional act that is done with intent to cause death or injury’.

1. It was then submitted that, consistently with the surrounding statutory text and structure, the ‘act’ and ‘intent’ referred to in s 28LC(2)(a) ‘are the act and intention of or “by” the person against whom the claim is made (in the present case, [the defendant] or the person through whom the claim against [the defendant] is made)’.

1. The defendant submitted that such a construction was consistent with the statutory purpose evident from the text, namely:

If a defendant has acted intentionally and with an intent to injure the plaintiff, the threshold otherwise imposed by Part VBA does not apply to the claim.

1. The defendant submitted that the words ‘is, or relates to’ do no more than make clear that s 28LC(2)(a) covers both claims in which the fault or act of the tortfeasor is an intentional act done with intent to cause injury; and claims in which the fault or act of the tortfeasor need not include any intention to cause injury — such as claims in battery, assault and false imprisonment — but to which an allegation of intention to cause injury may ‘relate’ so as to found an associated claim against the tortfeasor for exemplary damages.

1. While in its written case the defendant suggested that the words ‘or relates to’ may apply to claims involving the vicarious liability of a tortfeasor for the tortious acts of another who commits an intentional act that is done with intent to cause death or injury, in oral argument the defendant eschewed that suggestion.[5]

   [5]No doubt cognisant of what was said by Basten JA (with whom Hodgson and Ipp JJA agreed) in State of New South Wales v Bujdoso (2007) 69 NSWLR 302, 316 [57], in respect of a provision of the Civil Liability Act 2002 (NSW), namely:

   It is also difficult to see any clear legislative purpose for restricting the victim’s rights to damages payable by the State where it had been negligent, as opposed to damages payable by the State for an intentional act for which it was vicariously liable.

1. In oral argument, the defendant took the Court to the legislative history of Part VBA of the Act. We were taken to the circulation print, explanatory memorandum, Bill and second reading speech — first, in relation to the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (‘the 2002 Act’), which enacted Part VB of the Act; and secondly, in relation to the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (‘the 2003 Act’), which enacted Part VBA of the Act.

1. Part VB of the Act was described by the defendant as being concerned with the imposition of caps on damages; whereas, Part VBA was submitted to be concerned with thresholds.

1. In describing the legislative history of Parts VB and VBA, the defendant placed emphasis on:

·a statement in the explanatory memorandum in respect of the 2002 Act that s 28C provided that Part VB applied to all awards of personal injury damages except:

those made in consequence of injuries that are caused intentionally (it should be noted that intentional acts are usually excluded from insurance coverage);

·statements in the second reading speech relating to the 2002 Act that identified the purpose of enacting Part VB as being to restrict the amount of damages that defendants would be liable to pay if found negligent so as to provide insurance premium relief in respect of such claims;

·a statement in the explanatory memorandum relating to the 2003 Act that s 28LC provided that Part VBA would apply to all claims for the recovery of damages for non-economic loss, whatever the cause of action, but would not apply ‘to claims relating to intentional acts intended to cause death or injury’;

·statements in the second reading speech relating to the 2003 Act that its reforms were ‘designed to balance the rights of people to sue for personal injuries and the need for access to affordable insurance’;  would ‘provide greater certainty for providers of medical indemnity and public liability insurance’;  and would ‘restrict the cost to the community of claims for minor injuries through establishing a more reasonable balance between the impact on victims of injuries caused through another’s negligence and the amount of damages they receive’.

1. The defendant contended that the extrinsic materials relating to Parts VB and VBA showed that the Parliament intended that both Parts would apply (relevantly for present purposes) unless ‘the fault concerned is an intentional act that is … done [by the person against whom the award or claim is made] with intent to cause death or injury’;  and, in the case of Part VBA alone, unless ‘the fault concerned … relates to an intentional act that is done [by the person against whom the claim was made] with intent to cause death or injury’.

1. When asked in oral argument to give an example of a claim that was a claim against a person whose ‘fault’ was not an intentional act done with intent to cause death or injury, but which was a claim against a person whose ‘fault’ was related to an intentional act done with intent to cause death or injury, Senior Counsel for the defendant suggested the case of a proceeding where alternative claims are made against a defendant alleging injury caused by that person’s negligence; alternatively, caused by that person intentionally.  He submitted that in such a case the claimant could recover damages for non-economic loss without complying with the provisions of Part VBA, and even if he only succeeded on the alternative claim in negligence.

1. In his written case and oral argument, the plaintiff supported the judge’s reasons for his conclusion. The words ‘relates to’ were submitted to be words of wide import. A plain text reading of s 28LC(2)(a) supported the conclusion arrived at by the judge.

1. The plaintiff also submitted that the inclusion of omissions in the definition of ‘fault’ provided further support for the judge’s conclusion. Rewriting the exception in s 28LC(2)(a), the exception was submitted to apply to:

… a claim where the [omission] concerned … relates to, an intentional act … .

1. The plaintiff’s contention was that the fact that a claim involving a tortfeasor’s omission could be the subject of a s 28LC(2)(a) exception told against the acceptance of the construction of the provision contended for by the defendant.

1. In response to the plaintiff’s contentions, the defendant submitted that the plaintiff’s construction:

displaces the relation between ‘person’ and ‘other person’ against whom the claim is made that is established by the text of the statute (particularly, s 28LE), and therefore cannot be the intention of the Parliament.

Consideration

1. The principles to be applied in construing a statute are well settled.  They were recently summarised by Kiefel CJ and Keane J in R v A2.[6]  The relevant principles require consideration by the Court of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.

   [6][2019] HCA 35 (‘A2’).  See also [124]–[125] per Bell and Gageler JJ.

1. In A2, Kiefel CJ and Keane J referred to context and purpose as follows:

Context is to be understood in its widest sense.  It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole.  It extends to the mischief which it may be seen that the statute is intended to remedy.  ‘Mischief’ is an old expression.  It may be understood to refer to a state of affairs which to date the law has not addressed.  It is in that sense a defect in the law which is now sought to be remedied.  The mischief may point most clearly to what it is that the statute seeks to achieve.

This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction.[7]

[7]Ibid [33]–[34].

1. After referring to the cases of Alcan,[8] Saeed[9] and Baini,[10] their Honours then said:

These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words.  As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.[11]

[8]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (‘Alcan’).

[9]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (‘Saeed’).

[10]Baini v The Queen (2012) 246 CLR 469 (‘Baini’).

[11]A2 [2019] HCA 35 [36].

1. The historical context in which Part VBA was enacted was described by this Court in Mitchell v Latrobe Regional Hospital.[12]  As was said in Mitchell, Part VBA was the second of three tranches of the State Government’s legislative response to an alleged crisis ‘in the affordability and availability of several key insurance products’.[13]

   [12](2016) 51 VR 581, 584–5 [7]–[10].

   [13]Ibid [10].

1. The first of the three tranches described in Mitchell was constituted by the enactment of Part VB of the Act which, as we have already noted, deals with limitations on the assessment of personal injury damages. Like Part VBA, Part VB contains a provision excluding certain types of proceedings. The equivalent provision to s 28LC(2)(a) of Part VBA, in Part VB, is s 28C(2)(a), which relevantly provides:

(2)The following awards of damages are excluded from the operation of this Part [Part VB] —

(a)an award where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct;

…

1. Section 28C(2)(a) uses the words ‘where the fault concerned is an intentional act …’, whereas, as we have already noted, s 28LC(2)(a) uses the words ‘where the fault concerned is, or relates to, an intentional act …’. While a legislative purpose for making the exception in Part VBA wider than that contained in Part VB is not easily discerned, plainly the words ‘or relates to’ in s 28LC(2)(a) have to be given some operative effect.[14]

   [14]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71].

1. The defendant accepted that, in construing s 28LC(2)(a), the words ‘or relates to’ had to be given meaning and some operative effect. It contended that the words were necessary in s 28LC(2)(a), but not necessary in s 28C(2)(a), because s 28LC(2)(a) is directed to claims — whereas s 28C(2)(a) is directed to awards of damages. It was put by the defendant that, at the time when a cap provision (contained in Part VB) fell for consideration, damages had already been assessed for the causes of action that had been established. On the other hand, at the time when it is necessary for an injured person to establish compliance with a threshold (under Part VBA) all that is in existence is a claim (or claims) made by the injured person.

1. The defendant submitted that because s 28LC(2) was directed to ‘claims’ (unlike s 28C, which is directed to ‘awards’) the words ‘in relation to’ were a necessary addition in s 28LC(2)(a) so as to pick up all of the types of claim where the person sued has intentionally done or omitted to do something with intent to cause death or injury. As we have already noted, the defendant accepted that a consequence of this submission was that an injured person could make alternative claims alleging that a particular incident giving rise to injury was intentional and the product of a defendant’s intention to cause injury, or merely negligent and done without the requisite intent, and the injured person would not be required to satisfy the provisions of Part VBA in relation to either claim. We disagree.

1. Contrary to the defendant’s submissions, where an injured person makes a claim ‘where the fault concerned is an intentional act that is done [by the person against whom the claim is made] with intent to cause death or injury’ and an alternative claim against the same person in negligence in respect of the same injury (but without any allegation of a requisite intent on the part of that person or any other person), Part VBA will almost certainly require the claimant to comply with its provisions in respect of the negligence claim, but will not require any compliance in respect of the claim that contains the allegation that the party sued had the requisite intention. To accept the defendant’s submission would admit of the possibility of an injured person making an unsuccessful claim covered by s 28LC(2)(a) alleging intentional infliction of injury, that would then permit the recovery of damages for non-economic loss on a claim involving mere negligence where there was no requisite intent and no compliance with the provisions of Part VBA. Such a construction is contrary to the text of Part VBA and does not accord with the purpose of the relevant provisions as disclosed in the extrinsic material to which we have already referred.

1. In our opinion, and again contrary to the defendant’s submissions, the better view is that the words ‘or relates to’ were inserted into s 28LC(2)(a) as part of the Parliament’s attempt to ‘balance the rights of people to sue for personal injuries and the need for access to affordable insurance’ as described in the second reading speech relating to the 2003 Act.

1. The words ‘relates to’ are words of wide and general import.  As has been said before, the precise ambit of the expression can only be discerned from the context in which it has been used.[15]  But in the present case as a matter of fact resulting from the application of the ordinary meaning of the words, the plaintiff’s claim relates to an intentional act done with intent to cause death or injury.

   [15]See generally, Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; Oceanic Life Limited v Chief Commissioner of Stamp Duties (1999) 154 FLR 129.

1. In our view, the judge was correct to conclude that, properly construed, s 28LC(2)(a) made inapplicable the provisions of Part VBA to the plaintiff’s claim. Having examined the purpose of Part VBA of the Act and relevant context (including the other provisions contained in Part VBA, and the other exceptions contained in s 28LC(2)[16]), we are not persuaded that there is any basis for giving the words ‘or relates to’ in s 28LC(2)(a) some different or narrower meaning than they bear on their face. In particular, there is no justification for reading the provision so that the relevant intentional act must be done by the defendant.

   [16]Paragraphs (b) to (e) of s 28LC(2), noting that paragraph (e) was inserted by s 4(2) of the Wrongs Amendment (Asbestos Related Claims) Act 2015 on 11 March 2015.

1. We also reject the defendant’s submission that claims in which the fault ‘is’ an intentional act are limited to intentional acts done with intent to cause injury (eg, Wilkinson v Downton[17] and Bradley v Wingnut Films Ltd[18]) rather than claims where there may be an allegation of intention to cause injury (such as claims in battery, assault and false imprisonment). Such a construction would give too little work to the first limb of s 28LC(2)(a) (‘the “is” limb’) and cannot be justified having regard to the more limited terms of s 28C — containing as it does only the ‘is’ limb.

   [17][1897] 2 QB 57.

   [18][1993] 1 NZLR 415.

1. In our view, there is nothing in the context or purpose of the relevant statutory provisions requiring the more limited operation of the words ‘relating to’ contended for by the defendant. While the judge relied upon the presumption that the legislature does not alter common law rights without the use of clear words, with respect, we do not think it necessary to invoke that presumption in the construction of s 28LC(2)(a). It is the ordinary meaning of the text of the provision that leads us to our conclusion. We see no warrant in the text, context or statutory purpose for a construction as limited as that for which the defendant contended. The judge was correct to conclude that there was a sufficient nexus between the intentional stabbing of the plaintiff (done with intent to cause death or injury) and the plaintiff’s claim to make it one which fell within s 28LC(2)(a), and thus obviated the need for the plaintiff to comply with Part VBA of the Act.

Conclusion

1. While the matter is sufficiently arguable to justify a grant of leave to appeal, the appeal must be dismissed.

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