The decision in State of Victoria v Thompson [2019] VSCA 237 has been well summarised in a case alert by Wotton + Kearney Lawyers.

Under ‘civil liability’ reforms, thresholds have been put in place to limit damages claims. In most cases a person has to prove that they have a ‘significant injury’ before they can claim damages (see Wrongs Act 1958 (Vic) Part VBA).  This limitation does not apply where the person is injured as the result of an “intentional act that was done with intent to cause death or injury or that is sexual assault or other sexual misconduct” (s 28LC).

In State of Victoria v Thompson the plaintiff was a prisoner 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, and deficiencies regarding the supervision and guarding of prisoners.  The summary provided by Wotton + Kearney says:

The Victorian Court of Appeal has decided a claimant does not need to establish they have a “significant injury” to claim general damages if they allege they are the victim of an “intentional act that was done with intent to cause death or injury or that is sexual assault or other sexual misconduct”.

Critically, this decision applies to defendants that do not commit the intentional act, for example hotel operators, security and crowd controllers, prison operators, schools, care providers and shopping centre owners and managers.

They say

… all that is needed to avoid Part VBA is an allegation the claimant’s injuries were intentionally caused. Examples of where the exception would apply include:…

  • Care providers who are responsible for the care of medical patients, minors, elderly people, people with disabilities or other vulnerable people who are assaulted by fellow patients.

This may be of interest to readers of this blog, in particular paramedics.  First it reminds paramedics (and others) that if you are assaulted you can sue the assailant for damages and the limitations imposed in the Wrongs Act (and similar legislation in other states and territories) won’t apply so the entitlement to damages may not require proof that the injuries meet a minimum threshold (and see Police officer sues mental health patient for battery (December 18, 2018)).

Second if the injured person can sue the employer, eg if a paramedic can establish that the employer ambulance service was negligent in the way it managed the risk of physical violence to paramedics, then that action too may avoid the limitations in the Wrongs Act and possibly workers compensation legislation.  It may well open doors to better compensation for those injured as a result of an intentional act even where the defendant was not the perpetrator of that Act and that may be of great benefit to paramedics in particular, given the rise of reported violence on paramedics and other health care professionals.

Remember of course that this blog is not legal advice and every case turns on its facts so anyone should get expert legal advice before deciding whether to sue anyone, and if so who to sue.