Ambesi v Wesfarmers Limited
[2015] VCC 1056
•1 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-00195
| VINCENZA AMBESI | Plaintiff |
| V | |
| WESFARMERS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2015 | |
DATE OF RULING: | 1 June 2015 | |
CASE MAY BE CITED AS: | Ambesi v Wesfarmers Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1056 | |
REASONS FOR RULING
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Subject:Issue of whether reasons for medical panel opinion are admissible in an application pursuant to s 134AB Accident Compensation Act
Catchwords:
Legislation Cited:
Cases Cited:Pope v W.S. Walker and Sons Pty Ltd and Victorian WorkCover Authority [2006] VSCA 227, O’Connell v Bruck Textiles Pty Ltd (unreported judgement of 14 December 2006), Lianos v Inner and Eastern Healthcare Network (2001) 3 VR 136, Kozma Engineering Pty Ltd and Victorian WorkCover Authority v Pupic [2009] VSCA 313, Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305.
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Ms J M Forbes QC with Ms M Fitzgerald | Thomson Geer |
HER HONOUR:
1 In this case, Mr Chancellor, on behalf of the plaintiff, seeks to have admitted into evidence for consideration of the court, not only the certificate of opinion of the medical panel provided on 3 April 2013, but, also, the reasons for that opinion. Ms Forbes of senior counsel for the defendant concedes that the opinion is admissible, but opposes the admission into evidence of the reasons behind that opinion.
2 The starting point for a consideration of this dispute is, as acknowledged by both parties, that the opinion of the medical panel is not binding on this court in determining this serious injury application which it must determine.[1] The decision of the Court of Appeal in Pope v W.S. Walker and Sons Pty Ltd and Victorian WorkCover Authority,[2] is authority for that proposition. In the County Court, Hampel J in O’Connell v Bruck Textiles Pty Ltd,[3] had to determine this very question (and I refer, in particular, to paragraphs 18 and 19 of Her Honour’s decision). Her Honour adopted the reasoning of the Court of Appeal in Pope. Her Honour also noted that the plaintiff in O’Connell, like the plaintiff before me, wished to rely, on the matters referred to in the reasons, not, as in the case of Lianos,[4] to challenge the opinion of the panel, but as part of the general body of material evidencing the plaintiff’s condition at the time he was examined by the panel. In the case before me, it is clear that the plaintiff proposes to rely upon the panel’s reasons as, in effect, evidence of an admission by the defendant that the plaintiff did suffer a back and thoracic spine injury in the course of employment, with the designated date of injury being December 2009.
[1]This is distinct from other circumstances to which s48 of the Accident Compensation Act 1985 may apply, in which the court is bound by the medical panel opinion, for example, where, unlike the case before me, the court itself has requested the opinion.
[2][2006] VSCA 227
[3]An unreported decision of 14 December 2006.
[4]Lianos v Inner and Eastern Healthcare Network (2001) 3 VR 136.
3 Hampel J, in O’Connell, went on to say, “The reasons contain the matters upon which the medical panel relied in answering the questions it was asked. The reasons are likely to be of more assistance than the bald opinions, as they have the capacity to inform the Court of the matters relied upon by the medical panel and the reasoning process it adopted in answering the questions in the way it did. Therefore, the reasons are, or may be, of assistance in deciding whether the plaintiff has, at the date of hearing, a permanent serious impairment of body function which is productive of financial loss to the extent required to entitle him to the grant of leave.”[5]
[5]Paragraph 19
4 The same reasoning employed by Hampel J is evident in the Court of Appeal decision in Kozma Engineering Pty Ltd and Victorian WorkCover Authority v Pupic.[6] In particular, in paragraphs 21 and 22, it was acknowledged by the court that the decision of the medical panel, although not conclusive, may well be something to which the court might well have regard. As was said by Heydon JA in Makita Australia Pty Ltd v Sprowles[7], where expert testimony is before a court, a court cannot be expected to act upon the opinions, the basis of which is unexplained. This is a fundamental principle which has been applied in many cases since.
[6][2009] VSCA 313
[7][2001] NSWCA 305, See particularly paragraphs 59 to 60
5 In my view, it is obvious that, if I am not bound by the medical panel opinion, then, in order to have regard to it, in any meaningful way, I need to be informed of the basis for that opinion. Thus, I consider that both the medical panel opinion and the reasons for it are admissible in this case.
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