Thompson v State of Victoria (Ruling)
[2019] VCC 166
•25 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-05196
| ALLAN THOMPSON | Plaintiff |
| v | |
| STATE OF VICTORIA (CORRECTIONS VICTORIA UNIT OF THE DEPARTMENT OF JUSTICE & REGULATION) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2018 | |
DATE OF RULING: | 25 February 2019 | |
CASE MAY BE CITED AS: | Thompson v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 166 | |
RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: Claim in negligence against prison authority as occupier of premises where assault and battery occurred – assailant fellow prison – whether plaintiff obliged to comply with PART VBA of the Wrongs Act 1958 to establish a threshold level of injury – whether s28LC(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
CASES:Cugmeister v Maymac Foods Pty Ltd (Ruling) [2012] VCC 1121; State of New South Wales v Bujdoso (2007) 164 FCR 333; Balog v Independent Commission Against Corruption [1990] HCA 28; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; King v Philcox (2015) 255 CLR 304; Potter v Minahan (1908) 7 CLR 277
LEGISLATION: Wrongs Act 1958, s28LC(2)(a)
RULING: Paragraph 9 of Amended Defence dated 13 July 2018 is struck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC | L Y Tonge & Co Lawyers |
| For the Defendant | Mr N Murdoch QC with Ms R Kaye | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
1 The plaintiff has sued the State of Victoria in negligence for damages suffered as a result of a stabbing by a fellow prisoner.
2 By Summons dated 18 July 2018, the plaintiff has sought an order that paragraph 9 of the Amended Defence, dated 13 July 2018, be struck out, essentially for the reason that the fault pleaded in the Amended Statement of Claim “is, or relates to, an intentional act that was done with intent to cause him injury” and as such the plaintiff is not required to establish a threshold standard of “significant injury”.
Background
3 By Amended Statement of Claim dated 25 June 2018, the plaintiff claims that while he was an inmate at Dhurringile Prison, he was stabbed by a fellow prisoner. The claim against the defendant is in negligence and for breach of statutory duty. Essentially, the claimed negligence includes failing to secure knives at the prison, deficiencies in relation to the training and assistance provided to the plaintiff in his role as a mentor, and deficiencies in the supervision and guarding of prisoners, which the plaintiff alleges was a cause of the stabbing taking place.
4 The plaintiff contends that Part VBA of the Wrongs Act 1958 places no restriction on the present claim, such that the plaintiff is not required to prove he has a “significant injury” as defined by statute, as a threshold for bringing his common law claim for damages.
5 The basis of dispute calls for an interpretation of s28LC of the Wrongs Act, which was enacted in 2003 as part of an amendment, being Part VBA of the Act, which introduced thresholds in relation to recovery of damages for non-economic loss. Section 28LC of the Act provides as follows:
“(1)This Part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by subsection (2) or (3).
(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 is sexual assault or other sexual misconduct;
… .”
6 There is no issue before me that the stabbing amounts to “an intentional act that is done with intent to cause death or injury” or that the claim before me is one where the “fault concerned” is the alleged negligence of the defendant.
7 The defendant contends that by enacting Part VBA of the Act in 2003, and Part VB in 2002, Parliament has evinced an intention that claims such as the present are subject to a threshold (Part VBA) and a cap on damages (Part VB).
8 Both parties agree that the addition of the phrase “or relates to” creates a class of “protected” cause(s) of action in addition to the class where “the fault concerned is the deliberate act”.
9 The defendant contends the additional class created by the phrase “or relates to” or created by:
“The phrase ‘or relates to’ in s 28LC(2)(a) operates so as to deal with a situation of vicarious liability, where the defendant to a claim is alleged to be vicariously liable for the intentional conduct of another person (who may or may not be a party).”[1]
[1]Outline of Defendant’s Submissions in Relation to the Application of Section 28LC(2)(a) of the Wrongs Act 1958 (Vic) at paragraph [35]
10 In support of that contention, the defendant further submits as follows:
“36.The provisions were intended to differentiate between liability for intentional misconduct and ordinary negligent misconduct. It would be anomalous if a negligent Defendant did not have the benefit of the threshold where his negligence did no more than create the opportunity for/ the risk of the intentional act causing injury to occur. This is also consistent with the provisions in Part VB of the Act, which give negligent tortfeasors the benefit of monetary caps but deprives intentional wrongdoers of that benefit.
37.Sub-section 28LC(2)(a) is similar, but not identical, to sub-section 28C(2)(a) in Part VB of the Act. The latter provision excludes from the Part ‘an award where the fault concerned is an intentional act that is done with intent to cause death or injury that is sexual assault or other sexual misconduct.’ That provision does not contain ‘or relates to’. The work to [be] done by those extra words in sub-section 28LC(2)(a) is as illustrated by the example provided in Judge Misso’s reasons in Cugmeister. However, the addition of those words in sub-section 28LC(2)(a) does not extend so far as the interpretation contended for here by the Plaintiff.
38.In State of New South Wales v Bujdoso,[2] whilst the wording of the provision was different (‘in respect of’), similar considerations to those presently relevant applied. Although it is possible to give the phrase ‘or relates to’ a broad interpretation, it would be wrong to do so here for the reasons advanced in Bujdoso.”[3]
[2](2007) 69 NSWLR 302
[3]Outline of Defendant’s Submissions in Relation to the Application of Section 28LC(2)(a) of the Wrongs Act 1958 (Vic) at paragraphs [36]-[38]
Principles of statutory construction
11 The defendant further contends:
“39. Under section 35 of the Interpretation of Legislation Act 1984 (Vic), in interpreting a legislative provision:
(a)a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object;
(b)consideration may be given to any matter or document that is relevant including but not limited to, inter alia, reports of proceedings in Parliament and explanatory memoranda.
40.The High Court has explained the task of statutory construction as follows:[4]
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.’
41.The second reading speech and explanatory memorandum for the Wrongs and Limitation of Actions Acts (Insurance Reform) Bill 2003, which inserted Part VBA into the Act, do not contain any specific reference to sub-section 28LC(2)(a). However, it is apparent from the second reading speech that the purpose of inserting VBA (and making other amendments) was to address the problems with the functioning of the insurance system and to provide greater certainty to insurance providers. A similar approach is evident in Mr Ipp’s 2002 Review of the Law of Negligence Final Report. Accordingly, these extrinsic materials support a narrow and confined construction of the ‘carve out’ in sub-section 28LC(2)(a).”[5]
[4]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at paragraph [39]
[5]Outline of Defendant’s Submissions in Relation to the Application of s28LC(2)(a) of the Wrongs Act 1958 (Vic) at paragraphs [39]-[41]
12 These submissions are not controversial, but I do note that the Second Reading Speech and the relevant Explanatory Memorandum with respect to Part VBA do not contain any specific reference to s28LC(2)(a).
13 I also note that the contentions that:
(a)“Legislative measures which deny the remedy of damages in certain cases of negligently inflicted personal injury are … taken in the public interest … and … such measures should not be given an artificially narrow operation”;[6]
(b)Pearce and Geddes, in Statutory Interpretation in Australia, noted that where a legislature has not chosen to change legislation following judicial interpretation of it, that may be regarded as a strong ground for thinking that the legislature is satisfied with the court’s ruling and that it is six years since the decision of this Court in Cugmeister v Maymac Foods Pty Ltd,[7] which has not led to an amendment to the relevant section by Parliament; and
(c)the principle of comity is of considerable weight.
[6](ibid) at paragraph [42]; King v Philcox (2015) 255 CLR 304 at paragraph [42] per Keane J
[7][2012] VCC 1121
Analysis
14 During oral and written argument, both counsel made submissions as to Parliament’s intention in adding the phrase “or relates to” in the relevant subsection.
15 Relevant to that discourse, it would appear that prior to the enactment of Part VB of the Wrongs Act in 2002, the following courses of action were justiciable at common law without a cap on damages or a significant injury threshold:
(a)a claim by the plaintiff against the assailant for the intentional tort of trespass to the person;
(b)a third party claim against the assailant for a cause of action traditionally known as nervous shock;
(c)dependants of the plaintiff in an action against the assailant for loss of financial support;
(d)a claim by the plaintiff against an occupier/employer by way of vicarious liability from an intentional act (for example a prison officer assaults a prisoner);
(e)an action by a plaintiff against an occupier in negligence such as the present claim;
(f)dependents of a plaintiff in an action against an occupier in negligence such as the present claim.
16 When Part VB was introduced into the Wrongs Act in 2002, it placed a cap on personal injury damages. Relevantly, s28C stated:
“(1) This Part applies to an award of personal injury damages, except an award that is excluded by subsection (2).
(2) The following awards of damages are excluded from the operation of this Part—
(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;
… .”
17 It would appear from a plain reading of s28C(2)(a), and not demurred to in argument before me, that Part VB of the Act placed a cap on damages certainly for categories (d), (e) and (f) above, and preserved the full common law rights to uncapped damages for categories (a), (b) and (c) above.
18 In the “preserved” categories, the “fault” concerned “is” the intentional act.
19 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. So much is conceded by defence counsel and they submit that Parliament intended to preserve category (d), but not categories (e) and (f) relevant to claims against occupiers/employers.[8]
[8]See paragraph [35] of submission
20 The reasons for such construction are set out in paragraphs 9 and 10 above and I would indicate that the construction postulated is certainly open on the relevant wording.
21 It appears to me, however, that a construction is also open on the plain meaning of the relevant words that categories (e) and (f) would also be protected by the proviso, as submitted by Senior Counsel for the plaintiff.
22 The essential question is which construction should I prefer.
23 The Victorian Parliament has chosen different phraseology from the interstate decision of State of New South Wales v Bujdoso,[9] particularly with respect to the disjunctive “or relates to”.
[9](supra) at paragraphs [66]-[71]
24 Further, I cannot discern a clear intention to exclude categories (e) and (f) above, but I do agree that such a conclusion is consistent with such a construction.
Presumption against alteration of common law rights
25 In the 8th edition of Statutory Interpretation in Australia by Pearce and Geddes,[10] it is stated:
[10]Pearce D C & Geddes R S, Statutory Interpretation in Australia (8th edition, LexisNexis Butterworths, 2014)
“5.28 One of the most frequently cited authorities relating to the presumption against alteration of common law doctrines is the statement of O’Connor J in Potter v Minahan (1908) 7 CLR 277. His Honour, in that case, quoted from J A Theobold, Maxwell on the Interpretation of Statutes, 4th ed, Sweet & Maxwell, London, 1905, p 121. The passage approved by O’Connor J (at 304) is as follows:
‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law[,] without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.’
The case concerned the right of a person to enter Australia without having to comply with the dictation test set out in the Immigration Restriction Act 1901 (Cth). The applicant, who was of Chinese parents, had been born in Australia but had left at the age of five. He had, however, always retained the intention of returning to Australia and he did in fact return some 26 years later. The court held that he was entitled as of right to enter Australia and the parliament could not be presumed to have intended him to have been an ‘immigrant’ within the meaning of the Act.
…
A Full High Court in Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 635-6; 93 ALR 469 at 477 observed ‘that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred’. In BIL (NZ Holdings) Ltd v Era House Ltd (1991) 23 NSWLR 280 at 286 Rogers CJ in Comm Div, citing Coke’s Institutes (Co 2 Inst 200), noted that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law … .”[11]
[11]Pearce D C & Geddes R S, Statutory Interpretation in Australia (supra), pages 237-238
26 In my view, in the present case, I consider 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.
27 I will hear the parties on any consequential orders.
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