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
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
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
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
 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.
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