Thinking | 19 February 2016
Getting the Wrongs Amendment Act Right
In a decision that will provide some comfort for defendants and insurers, the County Court of Victoria has ruled that the transitional provisions of the Wrongs Amendment Act 2015 do not affect a prior determination of a Medical Panel.
In accordance with the Wrongs Act 1958, an injured plaintiff in Victoria is only entitled to claim damages for non-economic loss if he or she has suffered a significant injury.
Where a plaintiff serves on a defendant a Certificate of Assessment signed by a medical practitioner indicating that his or her injuries meet the threshold level for a significant injury under the Wrongs Act, a defendant may refer the plaintiff to a Medical Panel.
Section 28LZH of the Wrongs Act provides that a determination by a Medical Panel that a degree of impairment does not satisfy a threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not a significant injury.
The Wrongs Amendment Act 2015 (amending Act) came into force on 19 November 2015. Prior to the amending Act, a psychiatric injury was considered a significant injury if the plaintiff’s impairment met a threshold level of more than 10 per cent. However, the amending Act changed this threshold level for psychiatric injury to an impairment of 10 per cent. The threshold level for a spinal injury also changed from more than 5 per cent to simply 5 per cent.
According to the transitional provisions of the amending Act, the revised threshold levels will apply in respect of an injury irrespective of when the act or omission that caused the injury occurred and to court proceedings which have not been finally settled or determined before 19 November 2015.
In this case the plaintiff served a Certificate of Assessment in relation to her psychiatric injury and was referred to a Medical Panel by the defendants. The Medical Panel determined that the plaintiff’s psychiatric injury was not more than 10%.
After the amending Act came into force, the plaintiff sought to rely on a fresh Certificate of Assessment in relation to her psychiatric injury. The plaintiff argued that as the Medical Panel determination related to the old threshold, it was not binding on the Court.
Hall & Wilcox acted on behalf of the first defendant and argued that at the time the Medical Panel determination was made, it was a binding decision with legal consequences in a proceeding. Section 14 of the Interpretation of Legislation Act 1984 provides that where legislation is amended, the amendment shall not retrospectively affect existing rights and duties already defined by past events unless a contrary intention expressly appears. The defendants argued that the Medical Panel determination was a thing duly done under the Wrongs Act.
The Court agreed that the amending Act should not be interpreted as having retrospective application so as to displace a binding Medical Panel determination unless there was an express intention to do so. It was not enough that the amending Act applied to injuries regardless of when they occurred and to proceedings that had not been finally determined when the amending Act came into force. The amending Act did not specifically and expressly deal with the situation where a Medical Panel had already determined that the plaintiff did not suffer a significant injury. It therefore followed that the Medical Panel’s determination in this proceeding remained binding on the Court and the plaintiff was precluded from relying on the fresh certificate to pursue a claim for non-economic loss.
In short, where a claimant has already failed before a Medical Panel in relation to a threshold, they do not get another opportunity because of the change to the threshold.
The amendments to the threshold levels for psychiatric and spinal injuries in the Wrongs Amendment Act 2015 will not render a previous Medical Panel determination invalid.
Stapleton v Central Club Hotel & Ors
Hall & Wilcox acted for the first defendant in this case.
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