Aldridge v VWA
[2016] VCC 678
•27 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-03301
| MARIANNE ALDRIDGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2016 | |
DATE OF JUDGMENT: | 27 May 2016 | |
CASE MAY BE CITED AS: | Aldridge v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 678 | |
REASONS FOR JUDGMENT
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Catchwords: Work Injury Rehabilitation & Compensation Act 2013 – ss3 and 274 – whether referral to a Medical Panel would constitute an abuse of process – whether questions proposed for the Panel are appropriate – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Coote | Kauthen Legal |
| For the Defendant | Mr P Bourke | Wisewould Mahony |
HIS HONOUR:
1 This matter comes before me by way of a dispute concerning the proposed referral of medical questions to a Medical Panel pursuant to s274 of the Workplace Injury Rehabilitation & Compensation Act 2013, hereinafter referred to as “the Act”. The proposed referral is made in relation to a “serious injury” application made pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, being the predecessor of the Act.
2 Mr A Coote of counsel appeared on behalf of the plaintiff. Mr P Bourke of counsel appeared on behalf of the defendant. The request for medical questions to go to a Medical Panel is that of the defendant. Thus, it is the applicant for the purposes of this matter. However, for the sake of simplicity, I shall refer to it as the defendant.
3 No oral evidence was called. Various documents were placed before me, either by consent or without objection. Each counsel made detailed and helpful submissions.
4 As the matter is fixed for hearing on 8 June next, the decision in this matter has had to be delivered with some haste.
The statutory requirements
5 The basic provisions relating to the referral of medical questions are to be found in s274 of the Act. I shall not set them out here. Essentially, if a party requests that a medical question be referred and notifies the Court no later than 14 days prior to the date fixed for hearing of the matter of the intention to so refer, the Court must refer such question, subject to certain provisos. The Court may refuse to refer a question if it is of the opinion that the referral would constitute an abuse of process – s274(3). Secondly, the Court has a discretion as to the form in which a medical question is referred to a Panel – s274(4). Thirdly, the Court must not refer a question if it appears to the Court that the formation of the opinion by a Panel on that question would depend substantially on the resolution of factual issues which are more appropriately determined by the Court – s274(5). The term “medical question” is defined in s3 of the Act and some 15 medical questions or types of medical questions are set out therein.
The timetable of events in the present case
6 Some relevant dates in the present case are as follows:
(i) the Originating Motion was filed on 9 July 2015;
(ii) the serious injury application was fixed for hearing on 8 June 2016, this apparently having been ordered by his Honour Judge O’Neill on 29 July 2015;
(iii) pursuant to orders made by his Honour Judge O’Neill on 29 July 2015, the plaintiff provided Particulars of Injury which essentially relate to injuries to the neck and right shoulder and to a mental condition of anxiety, depression and chronic pain syndrome;
(iv) a settlement conference was conducted on 10 November 2015;
(v) on 3 March 2016 the defendant notified the plaintiff of its intention to refer medical questions to the Panel;
(vi) on 15 March 2016 the plaintiff informed the defendant that it would be objecting to such a referral;
(vii) on 24 March 2016 the solicitors for the plaintiff received from the plaintiff’s treating general practitioner, Dr Kirsten van Haaster, a medical report in relation to the state of the plaintiff’s health and expressing the view that a further delay and a Court hearing would be detrimental to her physical and mental health. This was forwarded to the defendant’s solicitors on 14 April 2016;
(viii) on 6 April 2016 the solicitors for the defendant indicated a date for a directions hearing in relation to the opposed referral would be sought;
(ix) the draft referral of the defendant was not forwarded to the plaintiff’s solicitors until 9 May 2016;
(x) the directions hearing was in fact heard by me on 20 May 2016;
(xi) It is conceded by the defendant that a referral to a Medical Panel would necessitate the vacating of the trial date on 8 June 2016.
The submissions on behalf of the parties
7 I shall deal with the submissions on behalf of the parties in the order in which they were presented.
(a) The submissions on behalf of the defendant
8 The submissions of Mr Bourke on behalf of the defendant could be summarised as follows.
9 As matters currently stand, this is not a dispute involving factual issues or credit material. The medical questions that are proposed are in accordance with the definition contained in s3 of the Act and do not depend substantially upon the resolution of factual issues.
10 The fact that the plaintiff has some health concerns is not sufficient to constitute what has occurred an abuse of process. Timely notification of the proposed referral was given. In addition, an appearance by the plaintiff before a Medical Panel would be far less stressful than a Court hearing and the prospect of a favourable outcome before a Panel exists. The plaintiff will doubtless rely upon the decision of his Honour Judge O’Neill in Briggs v VWA [2016] VCC 204. However, what has occurred in the present case does not constitute an abuse of process.
(b) The submissions on behalf of the plaintiff
11 The submissions of Mr Coote on behalf of the plaintiff could be summarised as follows.
12 The plaintiff objects to the proposed referral on two bases. Firstly, it is submitted that the referral, with the necessary loss of the trial date, does constitute an abuse of process. Emphasis is based upon the report of Dr van Haaster. The situation is very similar to that which existed in Briggs. In Briggs, his Honour Judge O’Neill effectively found that the loss of a trial date could, in some circumstances, constitute an abuse of process. The circumstances in that case related to the plaintiff’s medical condition. The referral was refused. His Honour also took into account the overarching obligations of the Civil Procedure Act 2010 and in particular to s7 of that Act. The factual situation in Briggs is closely analogous to that in the present case.
13 Secondly, the proposed questions depend substantially upon the resolution of factual issues more appropriately determined by the Court. Therefore, they should not be referred. Reference is made to the decision of his Honour Judge O’Neill in Amendola v United Doormakers (Vic) Pty Ltd [2012] VCC 1038 and to that of his Honour Judge Brookes in Dransfield v G A Gathercole Pty Ltd [2014] VCC 151. In those decisions, and particularly in Amendola, the role of the Court in relation to loss of earning capacity issues is emphasised.
14 In the present case, the defendant has had the plaintiff examined by Dr Michael Bloom, who has raised many issues concerning whether or not there are non-organic features, including chronic pain syndrome, impacting upon the plaintiff’s presentation. This means that some “disentangling” will be required. Matters of credit are also raised, at least inferentially. These are the type of questions to which his Honour Judge O’Neill was referring in Amendola.
15 In summary, the defendant’s application should be refused.
(c) The reply on behalf of the defendant
16 In his brief reply, Mr Bourke, on behalf of the defendant, put that it is appropriate for the Medical Panel to express an opinion as to employment capacity. Those who are vocational assessors are frequently criticised for giving medical opinions, but a Panel assessing the question of capacity is one which clearly falls within the definition contained in s3 of the Act. In the present case, the material to be forwarded to the Medical Panel includes a report from Nabenet in which three suitable jobs are identified. In relation to cross-examination and the stress placed upon the plaintiff, by sending the matter to the Panel the defendant is in fact foregoing its right to cross-examine. In any event, the Medical Panel is in the best position to assess the questions proposed in the present situation and, in particular, in relation to any disentanglement between organic and psychiatric factors.
Ruling
17 In this matter, I have formed the opinion that the application to refer the proposed questions to the Medical Panel should be refused. I have come to that conclusion for the following reasons, which are not set out in order of significance or importance.
(a) In the particular circumstances of this case, it seems to me that such a referral would constitute an abuse of process and fall within s274(3) of the Act. I have reached this conclusion despite the fact that the plaintiff was alerted to the defendant’s intention to refer questions to the Panel on 3 March last. It is not suggested that there was a failure to notify the Court no later than 14 days prior to the date fixed for hearing, which notification is required pursuant to s274(1)(b) of the Act. Indeed, mathematically, such reference must have occurred within the prescribed time.
However, that is not the end of the matter. Clearly a finding of abuse of process should not be made lightly and only in exceptional circumstances – see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Matters to be considered include whether, although the literal application of procedural rules may have been followed, the Court should prevent a misuse of its procedures in a way which would be manifestly unfair to a party to litigation or would otherwise bring the administration of justice into disrepute amongst right-thinking people.
I would refer to the matters set out by his Honour Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362. In addition to other factors to be considered, his Honour referred to the category of abuse which could be described as the use of the Court’s procedures being unjustifiably oppressive to one of the parties. He also referred to an abuse of process being one which would bring the administration of justice into disrepute.
(b) I appreciate that the threshold involved in relation to abuse of process is a high one. However, in the present case, with its somewhat unusual circumstances, it seems to me that it will be manifestly unfair to refer the matter to a Medical Panel at a stage where such referral will, of necessity and as conceded, involve a vacating of the trial date. It is common ground that it will also involve a delay of at least three months before the Medical Panel can deal with the referral and report, and that estimate might be quite optimistic.
In the circumstances prevailing in this application, that vacating of the trial date seems to me to be manifestly unfair, even if there has been compliance with the literal application of the procedural statutory requirements.
(c) On 29 July 2015, his Honour Judge O’Neill fixed this case for hearing on 8 June 2016. A settlement conference was conducted on 10 November 2015. It was not until 3 March 2016 that the plaintiff’s solicitors were advised of a referral to a Medical Panel. The draft referral, including the proposed questions, was not forwarded until 9 May 2016. There has been no, or no satisfactory, explanation as to why there was a delay of in excess of nine months prior to the draft referral being forwarded to the plaintiff’s solicitors.
As is evident, the matter did not come on before me until less than three weeks before the hearing date which had been fixed in July of last year. I am not necessarily suggesting that the defendant has been responsible for all aspects of that delay, but it is its application and, if such application is successful, a trial date which has been in place for a lengthy period must now be vacated.
(d) Not only must the trial date be vacated, but this must be done in circumstances where the opposing party – the plaintiff – would appear to be in a position where she is particularly vulnerable, susceptible to stress and likely to be adversely affected by the vacating of the trial date. There was no challenge to the accuracy of the report of Dr van Haaster, who was not required to attend for cross-examination. The report had been with the defendant for in excess of five weeks prior to the hearing before me.
In the report of 25 March 2016, Dr van Haaster stated the following:
“Ms Aldridge manages her impairment as best she can with modest medication use, minimal medical input and no ongoing allied health input. At times her pain gets the better of her as it did when she attended the emergency department at the local hospital in February of this year with severe right leg pain.
Ms Aldridge is currently facing multiple other stressors. Her husband Chris was diagnosed with bowel cancer last year and discovered in December 2015 the cancer has spread. He is currently undergoing chemotherapy. They are under significant financial stress due to her injury and his illness. Ms Aldridge was recently required to move from her rental home of the past 12 years.
In the recent months Ms Aldridge has experienced noncardiac chest pain and recurrent skin infections, which I believe are manifestations of the stress she is under.
A further delay in her court hearing would only add to her psychological distress and I feel strongly would be detrimental to her overall health and wellbeing, both physical and mental.”
There is no reason why I should not accept what has been said by Dr van Haaster. Bearing this in mind, and although the procedure that has been followed is not inconsistent with the literal application of the procedural rules, it seems to me that it would be manifestly unfair to allow the referral to the Medical Panel in circumstances where there is a plaintiff whose health would, most likely, be detrimentally affected by delay and where a trial date, now less than three weeks away, has been in place for in excess of nine months. It also seems to me to be distinctly possible that to order that the requested referral go ahead would, in the particular circumstances, bring the administration of justice into disrepute amongst right-thinking people.
(e) I agree with Mr Coote that there are quite noticeable parallels between the situation in Briggs and that in the present case. I also appreciate that decisions of other Judges of this Court do not represent binding authority, but that I should follow them unless convinced that they are wrong. In relation to his Honour Judge O’Neill’s decision in Briggs, I am far from convinced that it is incorrect. Indeed, this was not argued with any vigour. In any event, I am of the view that, with respect, it is correct and I am adopting a similar approach.
I would refer to the following observations of his Honour and respectfully adopt those that are applicable to the present dispute:
“…long experience in these courts indicates that, in the lead-up to a trial date in a serious injury application, it is necessary for a worker to undergo up-to-date medical assessments, prepare affidavits and confer with her solicitors and barristers. It is an epic event in the life of a litigant in these courts. It brings with it stress and anxiety and a heightened sense of anticipation in any person, let alone someone in a vulnerable psychiatric state and suffering what appears to be a very significant psychiatric disorder. The opinion of the treating general practitioner, Dr McNab, of the effect upon Ms Briggs of the Court process is significant. He said it should be concluded at the earliest time.
…it is a relatively straightforward inference to draw that to adjourn the trial date would have a significant impact on Ms Briggs and upon her delicate psychiatric state. In the circumstances, a court would be reluctant to move a trial date, save for good reason.
…Even though further notice of the proposed referral has now been made, some two months before the trial date and of this application, itself, some six weeks before the trial date, nonetheless, had the proposed referral been followed up in a timely fashion, the trial date could have been preserved. That trial date will now be lost. In the knowledge that a proposed referral to a Medical Panel is to be made, care should be taken to ensure it is made within sufficient time to ensure the trial date is maintained.
I accept that a finding of an abuse of process ought not be made lightly. However, allowing the matter to be referred to a Medical Panel with the consequent loss of the trial date would lead, in my view, to the Court’s procedures having an unfair and oppressive effect upon Ms Briggs. If a defendant insurer could disrupt a trial date in a case involving a vulnerable person with psychiatric injury for the sake of obtaining a Medical Panel referral, the process of the Court would, in my view, be brought into disrepute. It would lead to a situation where matters could be referred to a Medical Panel with little regard to the importance to a plaintiff of a maintained trial date.”
I would respectfully adopt his Honour’s reasoning. In my view, it is applicable to the situation in the present case. I would refer again to the contents of the report of Dr van Haaster and his conclusion, namely that a further delay in the plaintiff’s Court hearing would only add to her psychological distress and he felt strongly that such delay would be detrimental to her overall health and wellbeing, both physical and mental.
(f) It is also of interest that, as pointed out by Mr Coote, his Honour referred to the provisions of the Civil Procedure Act and the overarching purpose of facilitating a just, efficient, timely and cost-effective resolution of the real issues in dispute. His Honour also pointed out that s8 of the Act requires a Court to give effect to the overarching purpose. A consideration of that overarching purpose in the present case would seem to me to support the conclusion at which I have arrived.
18 I would add that, in addition to the above, I am of the view that there is also merit in the additional argument of Mr Coote that at least some of the proposed questions are unsatisfactory. On the basis of what was presented to me, I would not be referring them. That is particularly so in relation to Questions 2(c) and (d) and 3(c) and (d). Questions 2(c) and (d) are referrable to the plaintiff’s physical injuries. Questions 3(c) and (d) relate to the plaintiff’s psychiatric injury. In each instance Question (c) refers to a report of Nabenet, a vocational assessment entity employed in this case by the defendant, and poses the question as to what employment would constitute suitable employment for the plaintiff, stating how many days and hours per week. A question of this type seems to me to be unsatisfactory. Unless there are further particulars to which I have not been directed, reports of the Nabenet type usually include generic descriptions. Precise details of what is required, in addition to where and when, are often elicited and expanded upon in cross-examination, re-examination and submissions. In other words, the resolution of such questions depends substantially on the resolution of factual issues more appropriately dealt with by the Court.
19 In each instance, Question (d) seems to me to be in much the same boat. That Question simply inquiries as to what other employment would constitute suitable employment for the plaintiff, stating how many days and hours per week. I appreciate that a question along these lines would appear to fall within the definition of “medical question” contained in s3 of the Act. However, my experience would indicate that a question this broad in relation to suitable employment involves a very considerable amount of fact-based cross-examination, re-examination and resolution. It requires not just an investigation into generic occupations, but determination as to specific duties, hours, facilities and the like. Questions 2(c) and (d) and 3(c) and (d) seem to me to be questions which, pursuant to s274(5) of the Act, require the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel.
20 In this regard, I would refer to the decisions in Amendola and Dransfield. In Amendola, his Honour Judge O’Neill stated as follows:
“…The capacity of a worker to undertake employment is, in my experience, usually the subject of significant cross-examination.
It is only after all of these matters are undertaken, and the trial judge has the benefit of submissions by each counsel at the conclusion of the evidence, that he or she is in a position to make a determination as to serious injury to the level prescribed by the Act. …it is only after that process that the trial judge will be in a position to determine the plaintiff’s capacity for employment generally, or specifically as to a range of jobs which are suggested that he or she has the capacity for, and whether that capacity is for full-time or part-time employment.”
21 In Dransfield, his Honour Judge Brookes referred to vocational assessment reports and the like, quoting extracts from them, and concluded as follows:
“Thus, it would appear to me that there are many issues which raise questions of fact which will need to be resolved, and that any opinion or finding by the Court will depend substantially on the resolution of factual issues which, in my opinion, will be more appropriately determined by a court than by a Medical Panel mainly, if not exclusively, due to the defendant’s resource of experienced counsel to cross-examine in the manner already foreshadowed. The application will be refused.”
22 It appears to me that the questions to which I have referred in the present case are similar to those in Amendola and Dransfield. They are somewhat broad, sweeping questions which require more particulars. The ultimate answer or finding could then vary depending upon the precise question and the response to it. In other words, answering such questions involves the resolution of factual issues which would be far better dealt with in cross-examination and re-examination before a Court.
23 As is evident, for one reason or another, the dispute did not come on before me until less than three weeks before the hearing date which had been fixed in July of last year. There has been ample opportunity for the defendant to formulate its questions and conduct any dispute which may have arisen concerning their wording or suitability. However, now the trial date is imminent. Apart from my earlier ruling contained in paragraph 17 above, I am of the view that at least some of the proposed questions are unsatisfactory and that I am not prepared to order that the trial date be vacated so that there can be further argument or the formulation of further questions.
Conclusion
24 The defendant is unsuccessful. I am not of the opinion that the trial date should be vacated and that there be a referral to a Medical Panel of the draft questions prepared by the defendant or at all. I shall hear the parties as to any ancillary orders that are required.
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