Current uncertainty regarding the significant injury threshold exception in Victoria

Under Part VBA of the Wrongs Act 1958 (Vic) (Wrongs Act) there is a threshold degree of injury which plaintiffs must satisfy, namely a ‘significant injury’, in order to claim damages for non-economic loss. An exception to this threshold exists in section 28LC(2)(a) for claims ‘where the fault concerned is, or relates to, an intentional act that is done with the intent to cause death, injury or that is sexual assault or sexual misconduct.’ This section theoretically allows a victim of an assault to bring a civil claim for non-economic loss damages without satisfying the threshold. The use of the phrase “or relates to” in the wording of section 28LC(2)(a) has created uncertainty in the context of a claim which is made against a party other than the assailant. In the recent ruling of Thompson v State of Victoria[1], his Honour Judge Brookes allowed the Plaintiff to pursue such a…