Briggs v Victorian WorkCover Authority (Ruling)

[2016] VCC 204

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-02094

GAYLE PATRICE BRIGGS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE O’NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2016
DATE OF RULING:	8 March 2016
CASE MAY BE CITED AS:	Briggs v Victorian WorkCover Authority (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 204

REASONS FOR RULING
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Subject:  ACCIDENT COMPENSATION

Catchwords: Application pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 for referral of various “medical questions” to a Medical Panel – whether an abuse of process

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985; Civil Procedure Act 2010

Cases Cited:Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362; Cardona v Bacchus Marsh Mega Fresh Pty Ltd [2011] VCC 1483; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; State Bank of New South Wales v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423; Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175

Ruling:  Application to refer questions to a Medical Panel refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Chancellor	Maurice Blackburn
For the Defendant	Mr B McKenzie	IDP Lawyers

HIS HONOUR:

Preliminary

1 This is an application by the defendant for referral of certain questions, said to be “medical questions” to a Medical Panel, pursuant to the provisions of s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).

2 The questions, nine in all, are set forth in a document entitled “Notice pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013” and dated 29 February 2016.

3 Section 274 of the WIRC Act, relevantly provides:

“Medical questions

(1)    In exercising jurisdiction under this Part, a court—

(a)may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or

(b)   if—

(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and

(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—

the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.

…

(3)    If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

(4)    A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.

(5)    A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”

4       There is no issue that the Court was notified more than fourteen days prior to the date fixed for hearing of the defendant’s intention to request the questions be referred to a Medical Panel.  In those circumstances, the Court must refer the questions, providing they meet the definition of “medical questions” contained in s3 of the WIRC Act, and providing the exemptions referred to in ss(3) and ss(5) do not apply.

5       A chronology of events leading up to this application for referral is as follows:

·The plaintiff, Ms Briggs, is fifty-eight years of age and commenced work with the Department of Human Services (“the Department”) in 2001.

·In October 2009, she lodged a WorkCover claim alleging “stress caused by ongoing harassment in the workplace”.

·She worked for short periods after the lodging of the claim, but ceased work in May 2010 and has not worked since.

·Details of the allegations she makes against the Department are set forth in an affidavit sworn 1 December 2014, in support of her “serious injury” application pursuant to s134AB of the Accident Compensation Act 1985. That application is in respect of pain and suffering and economic loss on the basis of a mental disorder and is thus brought under ss(c) of the definition of “serious injury” set forth in s134AB(37) of the Accident Compensation Act.

·Various aspects of Ms Briggs’ claim were referred on three occasions to Medical Panels in 2011 and 2012.  I was provided with Certificates of Opinion of those Panels.

·An Originating Motion was issued on 3 April 2015.  Shortly thereafter, a trial date of 18 April 2016 was fixed by administrative orders. 

·On 15 July 2015, solicitors for the defendant wrote to Ms Briggs’ solicitors at their Ringwood document exchange address advising they had instructions to refer questions to a Medical Panel pursuant to s274(1)(b) of the WIRC Act. It would appear that the questions which are now formulated for referral were not included in the letter. The reason for the referral was said to relate to Ms Briggs’ capacity for suitable employment. In particular, it was said that she had the capacity to undertake various jobs listed in a Vocational Assessment.

·Ms Briggs’ solicitors deny having received the letter.

·        

A settlement conference between the parties was conducted on

27 August 2015.  There is a dispute as to whether the proposal for referral was discussed at that conference.

·        There was no further follow up and nothing happened in relation to the referral until the defendant’s solicitors wrote on the 19 February 2016 referring to the earlier letter of the 15 July 2015 and to the proposed referral to the Medical Panel.

·        Ms Briggs’ solicitors wrote to the defendant’s solicitors on 23 February objecting to the referral on various grounds.

·        It is inevitable that if the matter is referred to a Medical Panel, the trial date of the 16 April 2016 will have to be vacated. The Medical Panel process will take three or so months.  The trial could not be listed before July 2016, even accepting an “urgent hearing date” could be found around that time.[1]

[1]Currently serious injury applications are fixed for hearing approximately twelve months away.  However it is probable an urgent hearing date could be found around July or August 2016.

6       Even accepting that the defendant was waiting on medical and vocational reports from April 2015 when the Originating Motion was issued, it must have been relatively straightforward to determine what the real issues in the proceeding were including, as I was informed in the course of submissions:

·The causative relationship between Ms Briggs’ present condition and her employment.  In particular, it was said there were other issues in her life which contributed to her psychiatric condition.

·The admissions made by the insurer.[2]

·Whether her condition was permanent and would benefit from further or different treatment.

·Whether, and to what extent, she had a work capacity.

·Whether the consequences of the psychiatric condition met the “severe” test as the legislation required.

[2]See Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171

7 Mr Chancellor, for the plaintiff, opposed the application. Firstly, he submitted that the referral to the Medical Panel would constitute an abuse of process as contemplated by s274(3). Further, the resolution of factual issues in relation to the questions put to the Medical Panel would be more appropriately determined by this Court than by a Panel.

The Plaintiff’s medical condition

8       

Ms Briggs’ long-term psychiatrist is Dr Justin Lewis.  He has written a number of reports which were attached to material provided to me.  He described various allegations of bullying and harassment by a co-worker, leading to

Ms Briggs suffering a Major Depressive Disorder.  In Dr Lewis’ report of

15 July 2015, he said:

“Ms Briggs’s injuries have very considerably impacted on her activities and lifestyle as indicated.

Ms Briggs continues to experience chronic depressive symptoms, intermittent suicidal ideation, cognitive difficulties, poor motivation, poor stress tolerance and a number of traumatisation symptoms, which combine to render her completely incapacitated in a work sense.  Her difficulties are compounded by social isolation, chronic ruminative thinking relating to her past negative workplace environment and lack of response to antidepressant treatment to date.

For the above reasons, Ms Briggs is completely incapacitated in a work sense.”[3]

[3]Schedule of Attachments (“SOA”), Document 49

9       By letter dated 18 December 2015, Dr Lewis wrote to the insurer requesting approval for an urgent admission for Ms Briggs to Delmont Private Hospital, a psychiatric hospital.  He described significant depressive symptoms and marked weight loss.  He said she was not coping, was agitated and lacking in support.  I was informed that this admission did not proceed, despite approval being granted by the insurer.[4] 

[4]Letter of the insurer to Ms Briggs dated 20 January 2016

10      According to a report of Dr Nigel Strauss, consultant psychiatrist, of 19 January 2016,[5] Ms Briggs had a significant psychological condition before she started work with the Department in 2004.  He referred to her early disrupted family life and the death of her parents.  She had suffered a number of broken relationships.  Ms Briggs described various periods of depression which required treatment either by her general practitioner or a psychiatrist.  She was taking antidepressants before she started working for the Department.  He noted the opinion of earlier Medical Panels which found Ms Briggs had a significant psychiatric impairment related to her work in the Department.

[5]SOA, Document 51

11      He described Ms Briggs as a vulnerable woman, prone to anxiety and depression over many years.  He said there were a range of factors constituting her current psychological condition, but that her work experiences significantly contributed to that condition.  He thought she was suffering Chronic Major Depression which had not responded well to treatment.  He thought she was totally and permanently incapacitated and was in receipt of the Disability Support Pension.

12      Her treating general practitioner, Dr Neil McNab, described her as suffering anxiety, depression and post-traumatic stress.  He said this was related to her employment.  In a report of 1 August 2013, he said:

“Unfortunately the continuing conciliation, psychiatric assessments and ongoing contact related to the work case issue also aggravates her condition and these issues need to be resolved urgently.”[6]

[6]SOA, Document 34

13      In a report of 14 January 2016, he noted she was being treated by a psychiatrist and a psychologist.  He said:

“She is currently getting worse, losing weight and needing psychiatric hospital admission.”[7]

[7]SOA, Document 36

14      According to a report of Dr Sandra Hacker, who saw Ms Briggs on behalf of the insurer, she described a range of significant symptoms, including loss of weight through not eating properly, failure with personal hygiene, difficulties with concentration, lack of appetite, social isolation, nightmares, rumination over work events, panic attacks, mood swings and suicidal thoughts.  She diagnosed Ms Briggs as suffering a chronic, moderately severe Major Depressive Disorder with traumatisation features, Panic Disorder and Agoraphobia.  She said the prognosis was guarded and described Ms Briggs as being “quite severely psychiatrically unwell for some years”.  Despite significant psychiatric treatment and the prescription of antidepressant medication, her symptoms had not improved.  She suggested more aggressive psychopharmacological management.  She concluded that Ms Briggs’ psychiatric condition was at least, in part, related to her workplace issues.

An abuse of process?

15      In Monteiro v Tiago Enterprises Pty Ltd,[8] his Honour Judge Saccardo considered  the concept of abuse of process in determining whether a matter ought to be referred to a Medical Panel.  He said:

[8][2012] VCC 362

“…

•    Firstly, the test as to what amounts to an abuse of process is insusceptible of a formulation comprising closed categories;

•    Secondly, that the process to be employed is that the Court should prevent a misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute amongst right-thinking people;

•    Thirdly, although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories, namely; firstly, the court's procedures are invoked for an illegitimate purpose; secondly, the use of the Court's procedures is unjustifiably oppressive to one of the parties; thirdly, the use of the Court's procedures would bring the administration of justice into disrepute.

•    Finally, I am satisfied that a finding that a [sic] application gives rise to an abuse of process is one which should not be made lightly and that the threshold which must be satisfied before such a finding is made is a high one.

4In making these statements, I refer to and apply the decisions of the High Court in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council and Walton v Gardiner.

5 Further, in this application, I am satisfied that I should follow the approach taken by his Honour Judge Misso in the matter of Cardona v Bacchus Marsh Mega Fresh Pty Ltd, in which his Honour commented that the method which he should employ to determine whether an abuse of process arose was one in which he was to examine the processes of the Court and determine whether they had been used fairly in order to avoid the erosion of public confidence in those processes.

6The chronology relevant to the present application is as follows:

(i)    A serious injury application was served by the plaintiff's solicitors enclosing medical reports and supporting material on 25 October 2010.

(ii)   A response was delivered by the defendants, including the response material, on 22 February 2011.

(iii)  An Originating Motion was filed on 18 March 2011.

(iv)  A Notice of Appearance was filed on behalf of the defendant on 13 April 2011.

(v)   On 6 July 2011, the Court made a series of orders, including the following:  ‘Any application to vacate the trial date was to be made at least 28 days prior to the trial date to the judge in charge of the Serious Injury Division List.’

7 These orders also fixed a timetable with respect to the service by the plaintiff of particulars of injury, which was to be effected by

31 August 2011; the exchange of medical reports; the preparation of court books; and date by which notification was to be given with respect to cross-examination of medical witnesses, namely

23 February 2012.

8 The present application was made to me on the day the matter had been fixed for trial, namely, 23 March 2012. It follows that the orders made previously by the Court on 6 July 2011 had been complied with and that the parties had, up until the service of the notice by the defendant of its intention to refer the matter to the Medical Board, acted on the basis that the matter was to be dealt with by the Court in a trial to commence on 23 March 2012.”

16      There are clear factual differences in that application, in particular that the application for referral was made on the day fixed for trial.

17      Nonetheless, the principles enunciated have application. His Honour’s reference to the use of court procedures as being unjustifiably oppressive to one party or that they would bring the administration of justice into disrepute, are the matters which, in my view, are appropriate in determining the application before me.

18      In Cardona v Bacchus Marsh Mega Fresh Pty Ltd,[9] his Honour Judge Misso made reference to the statement by Gyles CJ in State Bank of New South Wales v Alexander Stenhouse Ltd:[10]

“This Court’s jurisdiction to stay its proceedings for abuse of process extends to all of those categories of cases in which the processes of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness (Walton v Gardiner (1993)177 CLR 378 at 395 per Mason CJ, Deane & Dawson JJ). It is important that freedom of access to the Courts should be preserved, and that defendants should not be encouraged to seek a stay on flimsy grounds for tactical reasons (Williams v Spautz (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ), but the fundamental policy considerations in forming the jurisdiction are that the Court must ensure that its processes are used fairly as between the parties to the litigation and that the Court must avoid the erosion of public confidence through concern that its processes may lend themselves to oppression and injustice. So there have been identified as aspects of abuse of process first, oppression and unfairness to the other party to the litigation and, secondly, that the matter complained of will bring the administration of justice into disrepute (Rogers v The Queen (1994) 181 CLR 251 at 256 per Mason CJ; 286 per McHugh J; see also Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536 per Lord Diplock and Walton v Gardiner at 393).”

[9][2011] VCC 1483

[10](1997) Aust Torts Reports 81-423 at [64], [086]

19      Any consideration of the administration of justice must take account of the overarching obligations clearly set forth in the Civil Procedure Act 2010. Decisions in this and other courts in Victoria of recent years have regularly referred to the overarching purpose set forth in s7 of the Act, which is to “… facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”.

20      Section 8 provides that a court must give effect to the overarching purpose in the exercise of its powers, or in the interpretation of those powers.  Many decisions of the Court of Appeal have reflected on the need to determine proceedings with minimum delay and in a manner proportionate to the complexity of the issues in dispute.  The availability and efficient use of court resources is a matter to be taken into account.[11]

[11]Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175

21      The need for the efficient hearing and disposition of serious injury applications is reflected in the recent County Court Common Law Division Practice Note.[12]

[12]PNCL 1-2016

Submissions on behalf of the Defendant

22      In submissions, Mr McKenzie, for the defendant, said the following:

(a)A finding of abuse of process should not be made lightly and only in exceptional circumstances;[13]

(b)The defendant gave notice by letter to the plaintiff’s solicitors in July 2015 when the trial date was fixed for 18 April 2016.  Further, formal notice was given and acknowledged by letter of 19 February 2016, some two months prior to the hearing date;

(c)The delay between July 2015 and February 2016, in further referring to the matter, was because the defendant was waiting for an updated Vocational Report, not received until 22 February 2016;

(d)There is no evidence the plaintiff’s psychiatric condition would be adversely affected by an adjournment of the trial date and the refixing of the matter at a later time.  An attendance before a Medical Panel would be less stressful than cross-examination in court;

(e)A Medical Panel opinion may provide a favourable outcome to the plaintiff. 

[13]See Cardona v Bacchus Marsh Mega Fresh Pty Ltd (supra)

Conclusions

23      I am satisfied Ms Briggs is suffering a significant psychiatric condition in the nature of a Major Depressive Disorder, or Adjustment Disorder.  This has required extensive treatment from her general practitioner, a psychologist and psychiatrist and included the provision of antidepressant medication.  Despite this treatment, her condition has not improved and as late as December 2015 was such as to give her treating psychiatrist concern, sufficient to warrant the prospect of an inpatient admission in a psychiatric hospital.  The condition has caused an array of serious symptoms, including suicidal ideation.

24      I accept I have not been provided with any medical reports as to the effect on Ms Briggs’ psychiatric condition of an adjournment of the proceeding from April this year.  However, 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.

25      Although Mr Chancellor admitted he has not conferred with the plaintiff, 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.

26      I note aspects of Ms Briggs’ claim were the subject of the opinions of Medical Panels in 2011 and 2012 on three occasions.  There was no reason given as to why the current questions could not have been put before those Panels.  It is my experience the more often a person with significant symptoms interacts with the litigation/compensation/medical panel system, the less the benefit to that person’s psychological health.

27      

While usually there is a presumption at law that a letter sent through an authorised mail process is deemed to have been received, it is odd, even unacceptable, that the proposed referral to a Medical Panel was not the subject of any further communication up until the defendant’s solicitor’s letter of

19 February 2016.  There is a dispute on the evidence as to whether or not it was mentioned in the course of a conference in August 2015.  I am not able to determine whether it was, or was not, as I have heard no evidence on the issue.

28      The defendant’s practitioners are experienced.  They would have been aware of the importance of the trial date, in particular, to a vulnerable plaintiff.  When no response to the letter was received (on the presumption that it was received), it ought to have been the subject of further prompt communication.

29      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.

30      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.

31      In these circumstances, I am satisfied there is an abuse of process in the matter being referred for a Medical Panel opinion.  The application is, therefore, refused.

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