In Victoria the Wrongs Act 1958 establishes the procedure for determining whether an injured claimant satisfies the 'significant injury' threshold for the recovery of non-economic loss damages (pain and suffering etc). There are detailed multi-stage procedures with time limits set out in the Act for determining whether claimants satisfy the threshold.
The plaintiff, in this case, witnessed an aircraft crashing into her daughter's courtyard and, as a result, claimed to have a 'significant' psychiatric injury (more than ten per cent whole person impairment). She was referred to the Medical Panel. Under the Act the Medical Panel 'must' make a determination of the degree of impairment within 30 days of its examination of the plaintiff. The Medical Panel actually took 53 days to make a determination that the plaintiff did not have a significant injury.
The plaintiff challenged the decision on the basis it was made outside the 30 day time limit. The Victorian Supreme Court considered the language of this legislation and noted that the intention was to provide for a speedy resolution of a threshold question (whether the claimant has sustained a 'significant injury'). On that basis it was held that the time limit imposed on the Medical Panel was mandatory and its failure to comply with that time limit made the determination invalid. The question was referred back for determination by a differently constituted Medical Panel.
This decision is of interest beyond its particular facts. There are a number of other time limits for which the consequences flowing from a failure to comply are not made explicit. This decision suggests that all such time limits must be strictly complied with.
For example, under the Act a respondent has the option of asserting that it is not a proper respondent to the claim. The claimant 'must' respond to that assertion within 14 days. There are no consequences set out for a failure to comply with that mandatory 14 day time limit. However, it would appear from this decision that the claimant's failure to respond within that period would then prevent the claimant from asserting that the respondent is, in fact, a proper respondent to the claim and would therefore prevent the claimant from recovering damages for non-economic loss against that respondent.
Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42
Failure to comply with the mandatory time limits prescribed in Part VBA of the Wrongs Act may have severe consequences for all parties involved in personal injury litigation in Victoria.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
