Bairami v Susan Day Cakes

[2010] VCC 512

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-03422

JULIE BAIRAMI	Plaintiff
v
SUSAN DAY CAKES PTY LTD	First Defendant
And
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 – 12 March 2010; 13 April 2010.
DATE OF RULING:	27 May 2010
CASE MAY BE CITED AS:	Bairami v Susan Day Cakes & Anor.
MEDIUM NEUTRAL CITATION:	[2010] VCC 0512
REASONS FOR RULING

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Catchwords: Admissibility of Medical Panel reasons for opinion in an application brought by the plaintiff pursuant to the leave provisions under s.134AB of the Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S.R. McCredie	Ryan Carlisle Thomas
with Mr J. Valiotis
For the Defendants	Mr P.D. Elliot QC	Minter Ellison
with Ms M.B. Bylhower
HER HONOUR:

1 On behalf of the plaintiff Mr McCredie seeks leave to include in the Plaintiff’s Court Book, for the purposes of the s.134AB application, the reasons for opinion of the Medical Panel dated 11 May 2009.

2 The Medical Panel received a referral from Mr David Hooper, conciliation officer, dated 13 March 2009 pursuant to s.56(6) of the Accident Compensation Act (the Act).

3          The referral arose from a dispute between the parties relating to the plaintiff’s entitlement to ongoing weekly benefits which had been terminated. Section 93CC(1) of the Act relevantly provides that a worker’s entitlement to weekly payments ceases unless the worker has no current work capacity and is likely to continue to have no work capacity.

4          The Panel was required to answer two medical questions it did so as follows:

Question 1:	“What is the nature of Julie Bairami’s medical condition (including any sequelae) relevant to the claimed injury?”
Answer:	“The Panel is of the opinion that the worker is suffering from a regional pain syndrome affecting the right upper limb relevant to the claimed injury.”
Question 2:	“Does Julie Bairami have no current work capacity? If so, is this situation likely to continue indefinitely?”
Answer:	“The Panel is of the opinion that the worker has no current work capacity and this situation is likely to continue indefinitely.”

The certificate was signed by Professor Peter Dizler, Presiding Member, for and on behalf of the Medical Panel and dated 11 May 2009.

5          The answers to the medical questions contained in the Certificate of Opinion determined the issues in the statutory benefits dispute and the plaintiff’s entitlement to weekly payments has continued.

6          Previously, the parties in these proceedings had submitted Consent Orders to the Court specifically stating that the Certificate of Opinion, excluding the reasons for opinion, would be included in the Plaintiff’s Court Book. It was not until the hearing of this proceeding that this application was made. Her Honour Judge Davis made Orders to that effect on 12 November 2008.

7          Mr Mc Credie referred to Lianos v Inner and Eastern Healthcare Network (2001) 3 VR 136. In that case the Court determined that the reasons for opinion, whilst forming part of the opinion for the purposes of s.10 of the Administrative Law Act, did not mean that the reasons for opinion form part of the report within the meaning of s.48(1) of the Act.

8          He submitted the Court could admit the reasons for opinion of the Medical Panel as they meet the definition of a “medical report” for the purposes of s.47(4) of the Act and he relied on Order 33 of the County Court Rules of Civil

Procedure.

9          Mr McCredie referred to the dicta of Eames JA in Pope v W.S. Walker and Sons Pty Ltd (2006) 14 VR 435 where he held that a court hearing of s.134AB application might have regard to a Medical Panel opinion obtained for the resolution of a statutory benefit dispute, although it would not be bound by the opinion. He submitted that it would be an odd result that the opinion would be admissible but not the reasons for opinion setting out the history, examination findings and conclusions.

10        He further relied on the dicta of Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at 612, paragraphs [41]-[42]. In that case Ashley, JA identified two bases (that were not relied upon here in these proceedings) upon which the reasons for opinion could have been admitted below. He submitted the proper reading of Grech and Lianos is that the touchstone of relevance is the critical feature for the admissibility of Medical Panel reasons.

11        Mr McCredie also sought to rely on the new s.48A of the Act that came into force on 5 April 2010.

12        I accept Mr Elliot, QC’s submission that the admission of certificates and reports of the Medical panel is governed by s.48 of the Act.

13 At common law s.48(1) has been interpreted to say that reasons for opinion of Medical Panels are not admissible subject to the limited exceptions referred to by Ashley, JA in Grech’s case. Lianos v Inner and Eastern Healthcare Network was recently cited with approval in Clark v National Mutual Life Assurance [2010] VSCA 43.

14        It is clear from a close reading of Lianos that both Batt and Chernov JJA concluded that it was not readily apparent from the language of the legislation what work the term “report given by Medical Panel” referred to in s.48(1) is to perform. It is not defined and there is no reference to it in the second reading speech that was made when the section was introduced, or in Part III of the Act.

15 Chernov JA clearly expressed the view that the reasons of a Medical Panel relating to its relevant opinion do not constitute or form part of a “report” within the meaning of s.48(1) and that, therefore, they are not admissible in evidence under that provision in proceedings brought under the Act.

16 The Act specifically provides for the transmission of a Certificate of Opinion to the Court and that the certificate be admissible in evidence and is binding upon the Court, and neither s.48(1) or any provision of the Act states in terms that the reasons of the Medical Panel are to be admissible in proceedings under the Act.

17        At paragraph [29] Chernov JA states:

“The situation thus obtaining in relation to the panel's opinion and certificate is to be contrasted with the lack of expression of legislative intent that the reasons be admissible in evidence. Thus, in contrast to the specificity of the legislative requirement that the opinion be transmitted to the court and that the certificate be admissible in evidence, neither s 48(1) nor any other provision of the Act (my emphasis) states in terms that the reasons of the medical panel are to be admissible in proceedings under the Act. In a sense, this is not surprising given that the scheme of the legislation is, as I have said, that the court must treat the opinion as determining the answers to the referred medical questions and cannot reconsider it in light of the reasons or at all. Consequently, as I have said, the tender of the reasons for such a purpose would be inconsistent with that legislative scheme.”

18 In paragraph [30] Chernov JA specifically alludes to the difficulties in trying to interpret the word “report” in s.48(1) he says,

“In the circumstances, therefore, I think it unlikely that Parliament intended, by resort to the somewhat imprecise word ‘report’ in s 48(1), to provide that the reasons of a medical panel be admissible in evidence notwithstanding the legislative scheme to which I have referred earlier. Very clear words would be required to establish that Parliament had such an intention. In my opinion, there is no such language in s 48(1). Ordinarily, mere reasons, without an accompanying conclusion or an opinion which is based on them, do not constitute a ‘report’ and there is nothing in the words of that provision or in any other relevant part of the Act which justify construing ‘report’ in the subsection as including reasons of a medical panel.”

19 I consider the same reasoning applies in the circumstances of this application. The reasons for opinion of the Medical Panel are not admissible under s.48(1) as they do not constitute a “report” for the purposes of that section. There is no other provision in the Act that states that the reasons of the Medical Panel are to be admissible in proceedings under the Act.

20        The admissibility of medical reports is governed by s.47 of the Act. The clear effect of that section is to distinguish between medical reports arising from an examination and it does not include a certificate or report to which s.48 applies (see s.47(4)).

21        I am not persuaded that the reasons for opinion of the Medical Panel constitutes a medical report in the traditional sense as was urged upon me by Mr McCredie.

22        Order 33.11 of the County Court Rules of Civil Procedure refers to the admissibility of a medical report served under the Order being evidence of the opinion of the medical expert who gave the report and where the medical expert’s oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. It is clear from the regime outlined in the rules that it refers to expert opinions provided following independent examinations by medical practitioners arranged by the parties in the proceedings and does not on its face refer to the reasons for opinion of the Medical Panel.

23        I further consider that the reasons for opinion of the Medical Panel are not admissible pursuant to s.48A of the Act. It provides as follows:

s.48A Use of documents relating to worker's claim

Despite anything to the contrary in any Act (other than the Charter of Human Rights and Responsibilities), or at common law, a document produced or served, or information acquired, in respect of a proceeding or claim for compensation, damages or other payment under, or in accordance with, this Act or any other proceeding under this Act or at common law, whether before, on or after the commencement of section 77 of the Accident Compensation Amendment Act 2010 may be used in and for the purposes of any claim, proceeding or payment under, or in accordance with, this Act.

24 Section 48A was inserted by s77 of the Accident Compensation Amendment Act 2010. Section 77 commenced on 5 April 2010: s2(7). Section 48A effectively contains its own transitional provision. It says it applies to “any other proceeding under the Act or at common law, whether before, on or after the commencement of s.77 …”. Section 48A is therefore in force in respect of all proceedings.

25 Notwithstanding that Section 48A in its terms is a broad provision, as a matter of statutory interpretation, I am not satisfied that it applies in these proceedings to encompass the reasons for opinion of a Medical Panel. Notably, the interpretation of s.48(1) appears not to have been altered by the Accident Compensation Amendment Act 2010.

26        The explanatory memorandum in relation to s48A reads as follows (note the Explanatory Memorandum erroneously refers to s43A)–

27        The Explanatory Memorandum in relation to s.48A reads as follows:

“The ‘mischief’ s.48A addresses is the common law rule that prevents documents, received by a party in the course of legal proceedings, being used in subsequent proceedings without the leave of the court. This should be considered in construing the provisions. Haydon’s case (1584) 76 ER 637.”

28 The amending Act says nothing about the common law interpretation of s.48(1).

29        I accept that the reasons for opinion is a document within the meaning of the Evidence Act 2008. It includes “anything on which there is writing”, dictionary definition document p117. There is little doubt the reasons for opinion would fit in with that definition. “Produced or served” arguably has an established legal meaning. In respect of documents in civil litigation, these terms commonly referred to documents in possession of one party which are made available to another party or parties and are usually exchanged pre-trial. References to produce and serve in the Accident Compensation Act are consistent with that sense.

30        In this case the reasons for opinion of the Medical Panel were requested by the conciliator, Mr David Hooper. Arguably the document was not produced or served but rather is information acquired by a third party in respect to the claim for statutory benefits under the Act.

31        When introducing s.48A there was no express reference to the reasons for the opinion of a Medical Panel, nor was s.48 amended to apply s.48A.

32        Absent any expressed intention to the contrary, I am not prepared to hold that the introduction of the s.48A of the Act would permit the reasons for opinion to be admissible.

33 Parliament has not used words that expressly intend to make reasons of a Medical Panel admissible in evidence under cover of the term “report given by a Medical Panel” in s.48(1), nor under s47 or the new s.48A of the Act.

34        I accept that the new Evidence Act 2008 (Vic) does not have any effect upon the existing law relating to the admission of Medical Panel reasons. Section 8 of the Evidence Act specifically provides that the Act does not affect the operation of the provisions of any other Act so that the provisions of the Accident Compensation Act relating to the admissibility of certificates and reports of the Medical Panel applies.

35        Finally, there are good policy reasons not to admit the reasons for opinion of Medical Panels. It is the practice of Judges of this Court not to allow the admission of reasons. This is subject to the parties consenting otherwise.

36 In this case where the opinion is a combination of five doctors each representing different specialty areas including, psychiatry, occupational rehabilitation, rheumatology and neurology it would lead to lengthy and costly proceedings if each were called and cross-examined. Those experts provided their report for the purpose of answering questions relevant to determining a statutory benefits claim and not for the purposes of determining whether the plaintiff suffered a serious injury pursuant to paragraph (a) and paragraph (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. These are very distinctive processes as has been recently recognised by the Court of Appeal in Kozma Engineering Pty Ltd & Victorian Workcover Authority v Pupic [2009] VSCA 313. Further, if a member of the Medical Panel refused to give evidence they would not be compellable. This may lead to further delay in the conduct of the proceeding if a doctor were to refuse to give evidence and would add unnecessary cost and inconvenience to the proceeding.

37        Therefore I rule that the reasons for opinion of the Medical Panel in relation to Ms Bairami are not admissible for the purposes of these proceedings.

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