Bekker v Total Viticulture Solutions
[2017] VCC 378
•11 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01197
| MICHAEL ANDREW BEKKER | Plaintiff |
| v | |
| THE TRUSTEE FOR THE TVS TRADING TRUST ABN 13 212 405 201 T/A TOTAL VITICULTURE SOLUTIONS | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2017 | |
DATE OF RULING: | 11 April 2017 | |
CASE MAY BE CITED AS: | Bekker v Total Viticulture Solutions | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 378 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Application pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 – referral of matter to Medical Panel to answer medical questions – whether an abuse of process – whether questions depend substantially upon factual issues more appropriately determined by the Court than by a Medical Panel
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; United Doormakers (Vic) Pty Ltd v Amendola [2012] VSCA 331; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Skordos v His Honour Magistrate Garnett & Ors [2009] VSC 512; Monteiro v Tiago Enterprises Pty Ltd (Ruling) [2012] VCC 362; Transport Accident Commission v Florrimell [2013] VSCA 247; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
Ruling: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Menzies Arvia Lawyers |
| For the Defendant | Mr R Kumar | Russell Kennedy |
HER HONOUR:
Preliminary
1 The plaintiff seeks leave to bring proceedings for common law damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Accident Compensation Act”), for injuries he claims to have sustained during the course of his employment with the defendant, between November 2012 and February 2014. The proceedings are currently listed for hearing on 1 August 2017. The defendant now seeks an order that certain medical questions be referred to a Medical Panel, pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
2 Both the plaintiff and the Court received formal notification of the defendant’s application on 31 January 2017. The defendant has complied with its obligations under s274(1)(b)(ii) of the WIRC Act, as well as the County Court Practice Note.[1]
[1]PNCLD 4-2016
3 The proposed medical questions are annexed to this ruling.
4 Pursuant to the WIRC Act, the matter must be referred to a Medical Panel unless I am satisfied that the referral is either an abuse of process[2] or that the medical questions would depend substantially on the resolution of factual issues which would be more appropriately determined by the Court than a Medical Panel.[3]
[2]s274(3) WIRC Act
[3]s274(5) WIRC Act
5 The plaintiff opposes the application on both of those grounds.
Relevant background
6 The plaintiff is 42 years of age. In March 2008, he suffered a lower back injury in the course of his employment with Vineyard Services Pty Ltd (“the first employer”). As a consequence of that injury, the plaintiff underwent four spinal procedures between August 2009 and August 2012.
7 In November 2012, the plaintiff commenced employment with the defendant. The plaintiff’s general practitioner, Dr McIntosh, was a part owner of the defendant’s business, and considered the plaintiff was capable of working as an operations manager, consistent with his work restrictions at the time.
8 Between November 2012 and February 2014, the plaintiff undertook labouring duties as well as supervisory duties for the defendant. The plaintiff alleges that, as a consequence of repetitive bending, twisting, and reaching, whilst working on machinery during the course of his employment, and in particular in February 2014, he suffered further injury to his lower back.
9 The plaintiff made a claim for compensation in respect of this further injury. The claim was accepted and the plaintiff has received no-fault payments in respect of that claim, including medical and like expenses, as well as weekly payments in excess of 130 weeks.[4]
[4]s93C of the ACA provides an entitlement to weekly payments after 130 weeks, when the worker has no work capacity for the indefinite future
10 The plaintiff applied for serious injury certificates in respect of the lower back injury suffered during the course of his employment with the first employer, as well as the aggravation of that injury suffered during the course of his employment with the defendant. The plaintiff also claimed that he suffered a psychiatric injury in the course of his employment with the defendant. In both serious injury applications, the plaintiff sought to claim pain and suffering damages, as well as loss of earning capacity damages.
11 The plaintiff was granted a serious injury certificate in respect of the injury he suffered whilst employed by the first employer, and he subsequently settled his damages claim in respect of that injury.
12 However, the plaintiff’s serious injury application in respect of his employment with the defendant was rejected, and accordingly the plaintiff issued an originating motion, seeking leave from this Court to bring a damages claim.
13 In a statement prepared pursuant to s304 of the WIRC Act, the defendant identified the following factual issues:
(i)Diagnosis of the medical condition(s) of the plaintiff’s back and psychiatric state.
(ii)The extent to which any condition of the plaintiff’s back and psychiatric state relates to any injury suffered by him in the course of his employment with the defendant.
(iii)Whether employment was a significant contributing factor to any back injury suffered by the plaintiff in the course of his employment with the defendant.
(iv)The extent to which any injury suffered by the plaintiff in the course of his employment with the defendant is likely to be permanent.
(v)Whether the plaintiff has any incapacity for work which results from, or is materially contributed to by, any injury suffered by him in the course of his employment with the defendant and, if so:
(a) whether such incapacity is likely to be permanent;
(b) whether the plaintiff has a ‘current work capacity’ or ‘no current work capacity’;
(c) what employment would constitute ‘suitable employment’ for the plaintiff;
(d) for how many hours per week the plaintiff is capable of work in ‘suitable employment’.
Plaintiff’s submissions
14 The plaintiff opposed the referral to the Medical Panel on two grounds, these being:
(1)There is a requirement for the resolution of factual issues which would be more appropriately determined by the Court than a Medical Panel; and
(2)The referral would, in all the circumstances, constitute an abuse of process.
15 The plaintiff submitted that there was a dispute as to the nature and extent of his work duties with the defendant. In the draft defence dated 22 March 2016 (which was included in the defendant’s response to the plaintiff’s serious injury application),[5] the defendant did not admit the duties which the plaintiff claimed were physical and repetitive in nature and which placed excessive pressure on his lower back. The plaintiff submitted that, in circumstances where the nature and extent of his employment was contested by the defendant, the resulting factual dispute would most likely be the subject of cross-examination of the plaintiff in an originating motion hearing.
[5]Served pursuant to Ministerial Directions – s134AB and included in the defendant’s response material, s134AB(8) of the Accident Compensation Act
16 Further, the plaintiff submitted that, in circumstances where he was claiming aggravation of a pre-existing lower back injury, it is a matter for evidentiary examination, including a determination of factual issues which are more appropriately determined by the Court.
17 The plaintiff relied upon a decision of his Honour Judge O’Neill in Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038. In that case, the plaintiff had injured his back prior to commencing his employment with the defendant, before subsequently being involved in three separate work incidents as well as a car accident. Judge O’Neill held that the questions the defendant sought to refer to the Medical Panel went to “the heart of the determination by the Court as to whether a plaintiff achieves the ‘serious injury’ level both in respect of pain and suffering and economic loss.”[6] In such circumstances, Judge O’Neill held that there was a multitude of issues which related to the nature and extent of the plaintiff’s pre-existing condition as well as the subsequent motor vehicle accident, and that such matters would involve cross-examination of the plaintiff. It was ultimately held that such factual issues were best determined by a Court, rather than a Medical Panel.
[6]Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038 paragraph 24
18 I note that the matter of Amendola was the subject of a leave application in the Court of Appeal. Leave was refused, with both Warren CJ and Priest JA approving the reasoning of his Honour Judge O’Neill. In his judgment, Priest JA stated:
“To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concerned the existence and extent of the respondent’s injuries, and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by a court. It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting – something which is not available to a Medical Panel. The judge’s approach thus does not seem to me to be erroneous; or, at least, sufficiently dubious to justify a grant of leave.”[7]
[7][2012] VSCA 331 at [20]
19 The plaintiff submitted that the referral would constitute an abuse of process, in circumstances in which there was no issue as to whether the plaintiff suffered a compensable injury, and he continued to receive weekly payments beyond 130 weeks. It was also submitted that there was no issue as to the plaintiff’s ongoing incapacity for employment, or in the alternative, the preponderance of evidence supported the plaintiff having an indefinite incapacity for all employment. The plaintiff submitted that in such circumstances, the only question to be determined is whether or not the plaintiff met the narrative test of serious injury, and that this was a matter for determination by the Court, and not the Medical Panel.
20 Further, the plaintiff submitted that, if the matter was referred, he would lose the benefit of an Ansett v Taylor[8] admission.
[8][2006] VSCA 171
21 In conclusion, the plaintiff submitted that the referral was tactical and would not bring certainty or finality to the proceedings, and that in all of those circumstances, if I were to allow such a referral, it would constitute an abuse of process.
22 The plaintiff conceded that there were no cases upon which he could directly rely to support his submission that such circumstances would constitute an abuse of process.[9]
[9]Transcript (“T”) 16, L15-20
The defendant’s submissions
23 The defendant submitted that the issue for determination in this case is the nature and extent of any compensable injury which the plaintiff sustained during the course of his employment with the defendant. It was contended that there were medical questions relevant to the determination of this issue which were capable of being answered by a Medical Panel.
24 In respect of plaintiff’s submission that there would be a factual dispute in respect of the nature and extent of the plaintiff’s work duties with the defendant, it was submitted that whilst the draft defence did not admit the plaintiff’s description of the duties he performed, the defendant did not propose to put any material to the Medical Panel challenging the plaintiff’s description of his work duties.[10]
[10]T18, L28-29
25 The defendant submitted that this was not a case in which there would be an attack on the plaintiff’s credibility, and that the defendant did not intend to “cavil with any of the statements which the plaintiff has made”[11] in his 14‑page affidavit in support of his serious injury application.
[11]T7, L5-7
26 In relation to the plaintiff’s submissions that the referral would constitute an abuse of process, the defendant provided written submissions which relied upon the Supreme Court decision of Skordos v Garnett,[12] and several County Court decisions in which an alleged abuse of power was considered. In particular, the defendant referred to the decision of his Honour Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd (Ruling) [2012] VCC 362. In that case, Judge Saccardo observed that, although the categories of abuse of process remain open, the cases usually fall into one of three categories:
(i)the court’s procedures are invoked for an illegitimate purpose;
(ii)the use of the court’s procedures is unjustifiably oppressive to one of the parties;
(iii)the use of the court’s procedures would bring the administration of justice into disrepute.
[12][2009] VSC 512
27 The defendant submitted that none of the previous authorities dealt with the circumstances alleged by the plaintiff in this case. In particular, it was stated that there was no direct authority in which it was recognised that where a party had made an admission against interest, a referral to a Medical Panel would then constitute an abuse of process.
28 The defendant also referred to the comments by Ashley JA, in Ansett v Taylor,[13] in which it was noted that acceptance of a permanent impairment benefit was a significant, yet not conclusive admission, that may be capable of explanation. In this case, the plaintiff has not claimed a lump sum benefit, but has continued to receive weekly payments of compensation, as well as payment of his medical and like expenses. The defendant submitted that the relevance of such ongoing payments is uncertain following the Court of Appeal decision in Transport Accident Commission v Florrimell.[14] In such circumstances, the defendant is entitled to challenge the issue of causation, and its referral of medical questions to the Medical Panel does not constitute an abuse of process.
[13][2006] VSCA 171
[14][2013] VSCA 247 at [43]–[45]
Would the referral constitute an abuse of process?
29 At this time, the trial date is just under four months away, and it is unlikely to be delayed by a referral to the Medical Panel.
30 There is no evidence before me that the referral was unjustifiably oppressive to one party, or that it would bring the administration of justice into disrepute.
31 In addition, I have no concern that the referral would be contrary to any of the overarching obligations imposed by the Civil Procedure Act 2010.
32 I accept the defendant’s submission that, notwithstanding the plaintiff is continuing to receive payment of no-fault compensation benefits, the defendant is not precluded from challenging the cause of his injury, as being related to his employment with the defendant, or the extent of his incapacity. I also note that, in the recent Court of Appeal decision of Sednaoui v Amac Corrosion Protection Pty Ltd,[15] the Court made reference to the comment in Ansett v Taylor that such an admission “should ordinarily be regarded as very significant”,[16] and noted that it is an observation only, and is not a statement of legal principle.[17]
[15][2017] VSCA 66
[16][2006] VSCA 171 at [3]
[17][2017] VSCA 66 at [67]
33 Therefore, in these circumstances, I do not consider the referral would constitute an abuse of process.
Is there a factual dispute which is best determined by a court?
34 I accept the defendant’s statement that the defendant will not seek to challenge the plaintiff’s description of his work duties, for the purpose of there being a Medical Panel referral. In that context, there is no factual dispute which would prevent the matter being referred to a Medical Panel.
35 I also note that the defendant stated that, if the matter was referred to a Medical Panel, the defendant would not challenge the plaintiff’s sworn evidence as to the history of his injury, including his response to the fourth surgery and that there had been “some improvement to his symptoms”[18] before he started employment with the defendant.
[18]T7, L3-4
36 The parties did not tender any medical material for me to consider in this application. However, I note that the proposed Schedule of Attachments to be given to the Medical Panel includes over fifty medical reports which pre-date the plaintiff’s commencement of employment with the defendant. My experience in originating motion serious injury hearings is that medical reports often contain incorrect histories, to which the plaintiff should fairly be given the opportunity to respond.
37 As this is an aggravation case, an assessment will be required as to matters pertaining to the plaintiff’s medical condition from 2008 until February 2014. All such matters would need to be clearly identified, to enable a proper determination as to the cause of the plaintiff’s current incapacity, as well as the extent of such incapacity.
38 The plaintiff is required to say now, how he was as at November 2012. His current account may well differ from contemporaneous medical reports and records that existed as at November 2012. Notwithstanding the defendant’s statement that it would not seek to challenge the plaintiff’s version as to how he was as at November 2012, the volume of medical reports in this matter is such that I am very uneasy as to the ability of a Medical Panel to fairly determine factual issues which are likely to arise between such reports and records, and the plaintiff’s current recall.
39 Cross-examination of the plaintiff as to any such discrepancies is critical to determine the true extent of his incapacity prior to commencing employment with the defendant, as well as his current condition. As stated above, these are clear factual disputes, which are best determined after testing such matters through cross-examination.
40 While the factual scenario in this case may not be as complicated as that in Amendola, I consider the need for four surgical procedures demonstrates the complexity of the plaintiff’s pre-existing lower back injury, and the manner in which it might have changed over time.
41 As was noted by his Honour Judge O’Neill in Amendola, the examination and cross-examination of the worker is of the utmost importance in serious injury applications, and a worker will often be the subject of “careful and often detailed challenge by the defendant’s counsel.”[19]
[19]Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038, paragraph 20
42 Further, his Honour stated that:
“It is only after that whole detailed process has been undertaken that an assessment can be properly made as to the nature and extent of the plaintiff’s medical condition, and his or her capacity for employment.”[20]
[20](ibid) paragraph 22
43 For the reasons detailed above, I am satisfied that, as a consequence of the plaintiff’s pre-existing lower back injury, there is a sufficient factual dispute in this matter that it is more appropriately determined by the Court than a Medical Panel.
44 Therefore, I dismiss the defendant’s application that the matter be referred to a Medical Panel and I confirm the hearing date of 1 August 2017.
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