Ball v Eldarin Services Metro Pty Ltd (Ruling No 2)

[2011] VCC 291

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-09-03307

STEPHEN BALL	Plaintiff
v
ELDARIN SERVICES METRO PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17, 18, 21, 22 and 23 February 2011
DATE OF RULING:	24 February 2011
CASE MAY BE CITED AS:	Ball v Eldarin Services Metro Pty Ltd (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 291

RULING

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Catchwords: Application of provisions of s.46 of the Accident Compensation Act 1985 to a common law claim for damages – meaning of “any proceedings under this Act”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G K Moore with	Tasiopoulos Lambros & Co
Mr J Sala
For the Defendant	Mr R Gillies QC with	Lander & Rogers
Ms M Tsikaris
HIS HONOUR:

1 In this matter, my ruling is sought as to whether declarations made by the plaintiff in a number of medical certificates of incapacity are statements in writing which attract the operation of the provision of s.46 of the Accident Compensation Act 1985 (“the Act”).

2 S.46 of the Act relevantly provides:

“46	Admissibility of statements by injured workers
(1)	If a worker after receiving an injury makes any statement in writing in relation to that injury to the worker's employer or to the Authority or to any person acting on behalf of the employer or the Authority, the statement shall not be admitted to evidence if tendered or used by the employer or the Authority in any proceedings under this Act unless the employer or the Authority has, at least 14 days before the hearing, furnished to the worker or to the worker's legal practitioner or agent a copy in writing of the statement.
… .”

3 The first issue to be determined is whether the employment of the term “in any proceedings under this Act” within s.46(1) refers to the present proceeding, namely the proceeding claiming damages at common law. I am satisfied that it does not for the following reasons:

(i)  In Wilson v Nattrass (1995) 21 MVR 41, the Court of Appeal recognised the fact that s.93 of the Transport Accident Act had the effect of contingently extinguishing the right of action to claim damages at common law by persons injured in transport accidents and that the availability of a right of action at common law depended upon the prospective plaintiff having passed through one of the three gateways established by the Act. The Court however recognised the fact that once an applicant had passed through a gateway:

“… the contingently extinguished right to bring common law proceeding springs into life, the only limitation apparently being the restriction on damages dealt with by s.93. The tortious liability is substantively the same as the pre-Act common law right; the damages limitations do not alter the substantive right. … .”

(ii)     In Swannell and the Transport Accident Commission v Farmer [1998] VSCA 104 (11 November 1998), the Court held that the proceeding in that case, namely the right to claim damages at common law, was “the product of the common law not the Act”, and observed:

“…Once the deceased sustained his injuries, all the elements of the cause of action that would spring into life if the requirements of s93 were satisfied were present, but no damages could be recovered until there was a determination of the deceased's impairment by the Commission and his injury met the description of a serious injury. … .”

4          The decisions by the Court of Appeal in both Wilson and Swannell; which although they relate to the provisions of the Transport Accident Act are apposite to the present application given the similarity of the wording employed by s.93 of the Transport Accident Act and s.135AB of the Act; establish, in my opinion:

• that a common law proceeding is a right of action which exists independently of the provisions of the Act;

• that the provisions of the Act govern access to that cause of action.

5          In these circumstances, I am satisfied that whilst the plaintiff’s entitlement to access a common law proceeding is governed by the provisions of the Act, such a proceeding, when commenced, is not a proceeding under the Act.

6          In this respect, I respectfully agree and adopt the reasoning of his Honour Judge Ostrowski in Duckworth v BTR Automotive Drive Train Systems Pty Ltd (VCC, unreported, delivered 2 March 2001). In that judgment, his Honour observed that the provisions of s.82 of the Act, which fell within Division I of Part IV of the Act, should be interpreted independently from the language of the provision of s.135A of the Act which fell within Division 9 of the Act, as the respective divisions dealt with an entitlement to compensation on the one hand, and the right to claim damages at common law on the other.

7          I am satisfied that the approach taken by his Honour in this regard is one which I should adopt.

8          In my opinion, the structure of the Act is such that Part III, Division 1, in which s.46 is found, establishes processes which apply to dispute resolution within the ‘no fault’ division of the Act. That this is so is supported, in my opinion, by the fact that s.44, which is also found within this division, provides:

“In proceedings under this Act or the Workers Compensation Act 1958, the County Court is not bound by the rules or practice as to evidence, but may inform itself in any manner it thinks fit and may take evidence in writing or orally.”

9          In my opinion, it could not be contended that s.44 could have application to a common law claim for damages in which the Court is clearly bound to follow the rules of evidence.

10        The conclusion which I have reached, that the provisions of Part III of the Act are discrete to the ‘no fault’ application of the Act and that they do not apply to a common law proceeding to which a plaintiff gains access by reason of the operation of the provisions of s.134AB of the Act ( which is located within Part IV the Act) is in my opinion further supported by the wording s.48A of the act which is also contained within Division III and which makes the distinction between a proceeding “at common law” “and “any other proceeding under this Act”.

11 For these reasons, I am satisfied that the provisions of s.46 do not apply to the present proceeding and, accordingly, that the defendant is not prevented by the operation of s.46 from making use of the certificates the subject of this ruling.

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