Acir v Frosster Pty Ltd

[2009] VSC 173

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10314 of 2008

CEMAL ACIR	Plaintiff
v
FROSSTER PTY LTD (ACN 006 925 346)	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2009
DATE OF RULING:	4 May 2009 (Reasons provided 5 May 2009)
CASE MAY BE CITED AS:	Acir v Frosster Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2009] VSC 173

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PROCEDURE – Supreme Court civil procedure – Dispensing with trial by jury – Establishing serious injury – Damages - Application of r 47.02(3) – s. 135BA of the Accident Compensation Act 1985 – Terminally ill worker.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Jewell SC with Mr M. Ruddle	Clarke, Toop & Taylor
For the Defendant	Mr G. Lewis SC with Ms F. Ellis	Thomson Playford Cutlers

HIS HONOUR:

The application

1. The plaintiff, by writ issued on 9 December 2008, sought trial by judge and jury of six.  At the commencement of the hearing, the plaintiff requested, pursuant to r 47.02(3), to have the action tried without a jury.  That application was not opposed by the defendant, nevertheless the rule requires the Court to form the opinion that “the proceeding should not in all the circumstances be tried before a jury”.

Background to the claim

1. The plaintiff alleges that he suffered two discrete injuries as a result of the negligence of the defendant, his employer.  The first is said to have occurred on 19 January 2005 and resulted in an injury to his back.  The second is said to be an injury to his right shoulder which occurred between late 2005 and May 2006 when the plaintiff was working on light duties with the defendant.

1. In addition to the musculoskeletal injuries allegedly sustained by the plaintiff,  it is also said that he has developed cirrhosis of the liver as a result of his consumption of alcohol consequent upon the pain and impairment produced by the respective injuries.

1. The plaintiff’s liver condition has, apparently, reached an advanced stage and it is estimated that, absent a liver transplant, he has a life expectancy of about one year.  On 19 January 2009, Associate Justice Mahony made orders in relation to an expedited trial of the proceeding which is due to commence today.

1. Each alleged cause of action is governed by the Accident Compensation Act 1985 (“the Act”). Absent a degree of impairment of 30% or more, in usual circumstances a plaintiff would be required to comply with s 134AB(16), (19) and (38) in establishing that he or she had sustained a serious injury within the meaning of the Act. Then, assuming serious injury was demonstrated, the plaintiff may bring proceedings for damages subject to compliance with a series of provisions concerning pre-issue dispute resolution (e.g. s 134AB(12)). The whole exercise is laborious, complex and time-consuming.

Relevant legislation

1. In 2004, Division 9A was introduced to accelerate the process by which actions by terminally ill workers may bring proceedings for injuries or disease arising out of their employment.

1. The provisions relevant to this application are s 135BA(2) and (6) which read as follows:

“(2)   If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in accordance with—

(a)   section 134AB without complying with the requirements of sub-sections (1) to (21) and sub-sections (27), (28) and (38) of that section; or

(b)   …

(6) If the Master of the Supreme Court does grant the orders referred to in sub-section (3), the worker can only recover damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19).”

1. The intent of Parliament as reflected by s 135BA(2) appears to have been to dispense with the cumbersome and time-consuming procedural requirements stipulated under s 134AB prior to the issue of the serious injury application (eg s 134AB(4) – (10)) as well as the additional time-consuming procedures and processes required to be undertaken prior to the common law proceeding being issued (eg s 134AB(12) – (14)).

1. In this case, the plaintiff seeks damages for both pain and suffering and pecuniary loss pursuant to s 134AB. Hence, by reason of s 135BA(6), he must establish, prior to such an award, that he has sustained a serious injury within the meaning of s 134AB(38); that is a statutory pre-condition to the “recovery of damages”.

1. Section 134AB(38) sets out the criteria for proving “serious injury” impairment. It distinguishes between physical impairment and loss and that of mental or behavioural disturbance.[1]  The following matters are, in the context of this case, relevant to whether the physical impairment or loss of body function is serious:

   [1]           Section 134AB(37).

(a)       identification of the particular body function which is said to be impaired or lost;

(b)      identification of the consequences which flow from the impaired or lost body function;

(c)       exclusion of mental (psychological or psychiatric) consequences which are to be determined separately (ss 134AB(38)(h));

(d) satisfaction of the narrative test contained in s 134AB(38)(b) and (c) requiring consideration of:

·     the statutory definition of the term “serious”;

·     the expression “at least very considerable” in the context of the range of possible impairments;

·     the division between “pain and suffering” and “loss of earning capacity” consequences;

·     whether the impairment is “permanent”.

(e) where a plaintiff pursues a claim for loss of earning capacity, the Act prescribes conditions by s 134AB(38)(e), (f) and (g) over and above the narrative test. In determining whether a worker can make a claim for loss of earning capacity, the plaintiff must establish a loss of earning capacity of 40% or more by a measurement of the loss comparing “without injury” earnings and “after injury earnings” as defined by the Act: s 134AB(38)(e) and (f);[2]

(f) determining how to calculate a plaintiff’s “after injury” earnings is not simple. Whilst it may be simply calculated by reference to actual earnings, the Act also requires a hypothetical assessment of what he or she is capable of earning in “suitable employment” as defined by s 5 of the Act;

(g)      a further inquiry is mandated by s 134AB(38)(g), which requires the Court, in determining whether a 40% loss has been sustained, to take into account questions of rehabilitation, retraining and the reasonableness of the plaintiff’s attempts at such endeavours.

[2]           Barwon Spinnersv Podolak & Ors (2005) 14 VR 622.

1. This brief, and by no means complete, analysis demonstrates the complex task (both legally and factually) to be undertaken in making the evaluation of serious injury impairment in the case of physical impairment or loss of use. I should add that there is now a large and ever increasing body of law concerning the application of the provisions of s 134AB(38).

Analysis

1. There are three possible ways by which this trial and the associated issues can proceed.

1. First, hypothetically, by a jury determining questions of both serious injury under s 134AB(38) of the Act as well as negligence and damages (if breach is established). However, if a Court is satisfied that the level of complexity of the issues for jury adjudication is sufficiently great, it may dispense with the jury.[3] Whilst there does not seem to be any statutory mandate in s 135BA preventing trial by jury, given the terms of s 134AB(38) and the exercise involved in determining whether the criteria has been met for “serious injury”, it is patent, I think, that a jury could not undertake this task. Moreover, the requirements of s 134AB(38) involve a degree of legal reasoning which a jury could not be expected to undertake.

   [3]           Altmann v Dunning [1995] 2 VR 1, 4-5, 7, 18-20.

1. Second, by an initial determination by the Court of the serious injury issue and then a subsequent determination by a jury of the questions of negligence and damages.  This is, in effect, the traditional way by which such cases are conducted in the County Court.  Militating against this is the plaintiff’s medical condition, which the Associate Justice found “gives rise to an imminent risk of death to the plaintiff for the purposes of the section”.  I apprehend that a significant portion of the evidence led in relation to the serious injury issue would be adduced again in the course of the trial.  This would be a waste of judicial resources and would cause the parties considerable additional expense (even accepting that this is what occurs in the run of the mill case in the County Court).  The combination of the plaintiff’s medical condition as well as the additional expense which would be incurred by the parties if such a course was undertaken means that this mode should be rejected.

1. The third method, which I propose to adopt, is that of the question of serious injury and the trial on liability and quantum being heard together. There is no statutory inhibition to the adoption of such a course and neither counsel suggested that it was inappropriate to take this approach. It is to be noted that there is no direction given by the legislature as to when and in what form the question of serious injury is to be determined. It is implicit from the scheme of Division 9A that it is to be determined in the Supreme Court.[4] Indeed, I think it is also implicit by reason of s 135BA(6) of the Act that, absent a compelling reason to do otherwise, this Court would deal with the issues of liability and quantum in the trial of the action and also with that of serious injury, bearing in mind that if the plaintiff fails to establish serious injury under s 134AB(38), then there will be no need to resolve the trial issues. This approach, it seems to me, is consistent with the legislative purpose[5] underlying s 135BA, namely, to ensure that terminally ill workers receive an expedited hearing of a serious injury application with the consequence that the trial is also heard as quickly as possible.  This is to be contrasted to the prescriptive scheme under s 134AB where s 135BA does not apply.

   [4]Compare s 39(1) of the Act which gives the County Court exclusive jurisdiction in relation to any question arising out of a decision of the Authority or a self-insurer. No such decision arises in a case under Division 9A of the Act.

   [5] Section 35 Interpretation of Legislation Act 1984.

Conclusion

1. In my opinion, the trial of this proceeding should not proceed before a jury.  Rather, it should be heard by a judge sitting alone in conjunction with a determination of the question of serious injury.

Orders

1. I propose to make the following orders:

(1)       That pursuant to r 47.02(3) the proceeding be tried without a jury.

(2) That the question of whether the plaintiff has sustained a serious injury within the meaning of s 134AB(38) of the Accident Compensation Act  be heard at the same time as the trial of the proceeding.