Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92

Another example of a claim against the Commonwealth wherein such part of the claim which related to personal injuries, which had not complied with the Personal Injuries Proceedings Act 2002 (Qld) was dismissed. Furthermore, in this instance, the plaintiff claimed an award exemplary, punitive or aggravated damages, which by virtue of Section 52 of the Civil Liability Act 2003 (Qld) was not available. Finally, the last hurdle of the limitation period could not be overcome either.

Margaret Wilson AJA with whom Muir JA and Fraser JA agreed:

Deprivation of liberty

[75] In paragraphs 8 – 11 of her statement of claim, Ms Sochorova argued that the delay in granting her visa, her being denied access to the age pension and Medicare benefits, and the “consequent threat of incarceration or deportation” constituted a form of deprivation of liberty. She seemed to characterise her claim as one for damages for unlawful deprivation of liberty, and said in paragraph 11 –

“11. The plaintiff therefore submits that her damages claims are beyond the scope of statutory appeal limitations and must be determined at common law according to norms of natural justice.”

[76] The primary judge was correct when he said that there is simply no factual basis for any allegation of wrongful imprisonment.[72]

Personal Injuries Proceedings Act 2002 (Qld)

[77] The respondent is the Commonwealth of Australia, and so the Supreme Court of Queensland is exercising federal jurisdiction in this matter.[73] PIPA applies to the appellant’s claim in so far as it is a claim for damages for personal injuries.[74]

[78] Ms Sochorova did not give the respondent a notice of claim pursuant to s 9 of PIPA before commencing this proceeding. Section 7 makes the requirement to give the notice pursuant to s 9 a provision of substantive law; it must therefore be complied with before valid proceedings can be instituted.[75] Further, s 18 provides that a claimant who fails to give a notice of claim complying with the legislative requirements, may not proceed further with the claim except in certain defined circumstances (none of which arose in the present case).

[79] Section 6(3)(a) of PIPA provides –

“6(3) Also, this Act does not apply to—

(a) personal injury in relation to which a proceeding was started in a court, including in a court outside Queensland or Australia, before 18 June 2002; or…”

[80] Ms Sochorova’s submission that PIPA does not apply to her claim because her proceeding was commenced in the Federal Court in January 2002 is misconceived. The Federal Court proceeding was an appeal against a decision of the MRT, not a proceeding in which she claimed damages for personal injuries.

[81] As Ms Sochorova did not comply with the pre-litigation requirements of PIPA, she was not entitled to commence this proceeding in so far as it is a claim for damages for personal injuries.

Civil Liability Act 2003 (Qld)

[82] Section 52 of the Civil Liability Act 2003 (Qld) applies in relation to a breach of duty happening after 9 April 2003.[76] It provides –

52 Exemplary, punitive or aggravated damages can not be awarded

(1) A court can not award exemplary, punitive or aggravated damages in relation to a claim for personal injury damages.

(2) Subsection (1) does not apply to a claim for personal injury damages if the act that caused the personal injury was—

(a) an unlawful intentional act done with intent to cause personal injury; or

(b) an unlawful sexual assault or other unlawful sexual misconduct.”

[83] The dictionary in schedule 2 to that act contains the following definitions –

personal injury includes

(a) fatal injury; and

(b) pre-natal injury; and

(c) psychological or psychiatric injury; and

(d) disease.”

“personal injury damages” means damages that relate to the

death of or injury to a person.”

[84] In so far as Ms Sochorova’s claim is for “stress-related injury to health”, it is a claim for “personal injury damages” within the meaning of that act. As the primary judge said, there is no suggestion anywhere in the material that the illnesses of which she complains in general terms were caused in circumstances where subsection (2) of s 52 applies.[77]

[85] It follows that even if she were not faced with the insurmountable hurdle of not having complied with the pre-litigation requirements of PIPA, she could not recover aggravated or exemplary damages for personal injuries.

Limitation of Actions Act 1974 (Qld)

[86] The limitation period for a claim for damages for personal injuries is three years from the accrual of the cause of action.[78] Otherwise, the limitation period for a claim in tort is generally six years from the accrual of the cause of action.[79]

[87] Whether Ms Sochorova’s claim in negligence (except in so far as it relates to damages for personal injuries), is statute barred cannot be determined on the present state of her pleading.

Brisbane Barrister – David Cormack

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