Hart v Director of Housing and Hanover Welfare Services
[2013] VCC 1402
•28 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication | |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-04195
| LORRAINE HART | Plaintiff |
| v | |
| DIRECTOR OF HOUSING and HANOVER WELFARE SERVICES | First Defendant Second Defendant |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 23 September, 18 and 28 October 2013 | |
DATE OF JUDGMENT: | 28 October 2013 | |
CASE MAY BE CITED AS: | Hart v Director of Housing & Hanover Welfare Services | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1402 | |
TRANSCRIPT OF SUMMARY ORAL REASONS FOR JUDGMENT
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with Ms G J Cooper | Nowicki Carbone |
| For the First Defendant | Mr E Makowski | Moray & Agnew Lawyers |
| For the Second Defendant | Ms B Altson | TressCox Lawyers |
HER HONOUR:
1 The plaintiff, Lorraine Hart, alleges that on 7 June 2011 she slipped and fell on stairs at “Hanover Transitional Housing”. She claims that as a consequence she sustained injury. She issued proceedings first against the Director of Housing, the first defendant, whom I shall refer to as “D1”, and later against Hanover Welfare Services, the second defendant, whom I shall refer to as “D2”. The plaintiff alleges negligence against each of them. Both defendants are now joined as parties to the current proceedings.
2 By operation of the provisions of Part VBA of the Wrongs Act 1958 (as amended) (“the Act”), the plaintiff is not entitled to recover non-economic loss damages against a party unless she establishes that she has suffered “significant injury” as defined in Part VBA of the Act. In regards to the suit brought against D1, the plaintiff submits that the condition precedent of “significant injury” was satisfied on 11 November 2012 when D1 was “deemed to have accepted” a medical certificate issued pursuant to section 28LN of the Act, which certified her degree of permanent impairment as more than five per cent, which is the applicable threshold in this case to establish significant injury, and that accordingly, she is entitled to recover non-economic loss damages against D1. However, in regards to the suit brought against D2, the plaintiff concedes that she is unable to recover damages for non-economic loss from D2, because on 17 May 2013, the Medical Panel, on referral of a “medical question” by D2, determined that she did not meet the threshold. I will call that “the Panel's determination” or the “determination”.
3 The issue raised by this case is whether declarations should be made to the effect that the Panel's determination has not disqualified the plaintiff from recovering non-economic loss damages from D1, or that preliminary questions along those lines should be resolved. The plaintiff submits that she has complied with all the statutory requirements and is entitled to recover such losses from D1, and that D1 cannot rely on the determination. D1 submits that the declarations should not be made or the questions should be answered in the negative, because the determination finally resolves the plaintiff's right to recover non-economic loss damages in all of the proceedings before the Court. The determination is adverse to the plaintiff. D2 adopts the submissions of D1.
Overview of competing submissions
4 In essence, the plaintiff submits that notwithstanding the Panel's determination, she is entitled to recover non-economic loss damages from D1, because once qualified under the Act to recover them from D1, this accrued right cannot be quashed retrospectively. She further submits that the Panel's determination in the case against D2 is irrelevant to her cause of action against D1 and constitutes no bar to recovering non-economic loss damages from D1.
5 D1 submits that as a consequence of joinder, the Panel's determination is binding on all parties to the proceedings. D1 submits that notwithstanding her [the Director’s] acceptance or her acceptance of the plaintiff's certified level of impairment, as there is inconsistency between that acceptance and the Panel's determination, the latter must prevail. D1 argues in essence, that there is inherent impermissible inconsistency in the one proceeding regarding the level of the plaintiff's impairment. D1 submits that the plaintiff cannot be found on the one hand to have a significant injury for the purposes of the suit against D1, but on the other be found not to have a significant injury in the suit against D2. Note, this would be the precise outcome if there were two referrals with inconsistent results. I will cover this later in the judgment. D1 submits in such circumstances, the Panel's determination “trumps” to use Mr Makowski's word, D1's acceptance of the plaintiff's certified level of impairment, and that as a consequence, D1 is no longer bound by that acceptance. Accordingly, any right the plaintiff once had to recover non-economic loss damages against D1 has now been extinguished.
6 The trial against both defendants was listed to be heard before a jury of six on 9 October 2013, however that date was vacated administratively by consent of the parties. I have since re-fixed that date. The case will be heard before me as a jury trial, commencing Tuesday 25 March 2014, on an estimate of four days.
7 On 16 August 2013, the plaintiff issued a summons returnable before me on 19 September 2013. The plaintiff sought:
· an order in the nature of a declaration, that D1 is deemed to have accepted that the plaintiff has suffered significant injury for the purposes of Part VBA of the Act;
· an order in the nature of a declaration, that D1 cannot rely upon the Panel's determination issued on 17 May 2013.
8 Mr Riordan appeared with Ms Cooper on behalf of the plaintiff. Mr Makowski appeared on behalf of D1. Ms Alston appeared on behalf of D2.
9 Having reserved judgment, after considering the submissions made and having reviewed the pleadings, I requested counsel to return before me on 18 October to give counsel a further opportunity to be heard on the question of how declaratory relief was justified, given the state of the pleadings, that is to say, there was no pleading filed by D1 that challenged the plaintiff's right to seek non-economic loss damages from D1. My Associate sent an email to the parties on my behalf, which, omitting formal parts read, "I refer to the above matter, listed for further argument at 10.30am on 18 October 2013. Her Honour seeks further submissions as to why any declarations are justified regarding the Medical Panel's determination of 17 May 2013, given the current state of the pleadings. Note that the first defendant has not pleaded any statutory bar or defence to the plaintiff's right to recover non-economic loss damages from the first defendant." I had prepared draft reasons for judgment. I had intended to discuss the pleading issue with counsel that day before finally deciding the matter and delivering final judgment.
10 On 18 October, presumably in recognition of the fact that the question of the plaintiff's right to seek non-economic loss damages from D1 was not challenged by any pleading, D1 sought leave to amend its defence by consent. Before granting leave, I questioned whether it was appropriate to do so in all the circumstances. As I had not yet discussed the concerns raised in my draft judgment, I provided a copy of it to counsel so that they could fully understand the issues that were troubling me and address them. I also provided a draft list of potential orders and directions to be considered. A copy of the draft potential orders and directions is Annexure B to this judgment. I did not receive the draft proposed amended defence, although I understand one was ready on that day, that is to say, on 18 October.
11 A copy of the draft judgment was tendered today, 28 October, as exhibit JM1 and it will be attached as Annexure A to these reasons. I note that I have made some non substantive corrections to the draft reasons which have been included in Annexure A, and the parties have received a corrected version of JM1.
12 I adjourned the further hearing until 28 October, today, and I made directions as to the service and filing of further submissions.
13 The plaintiff's further written submissions were tendered as exhibit B.
14 D1's further written submissions were tendered as exhibit 2.
15 D2 did not appear today, and filed no further submissions.
16 Contrary to the submission made by D1 on 18 October that an amended defence should be filed, D1 then submitted that no such amendment is required. In summary, D1 contends that the Director has never admitted that the plaintiff has met the threshold, that the pleadings sufficiently join issue on this question, that the plaintiff bears the onus of proving that she has satisfied the threshold, that D1 has no burden of rebutting this issue, and that the plaintiff will fail to discharge the burden of proof on this matter. See paragraphs 8 to 15 of the supplementary submissions, exhibit 2.
17 However, without conceding that amendment is required, D1 then sought leave to amend her defence to enable a real controversy between the parties to be determined. In short, D1 argues that until such time as D2 obtained the Panel's determination, there was no defence available for it to plead in rebuttal of the plaintiff's assertion that she has satisfied the threshold. Later in this judgment, although I will not explain it today, I will develop that if there was nothing to plead as a defence until then, it demonstrates the flaw in D1's argument.
18 My draft reasons, Annexure A, contained the following summary of conclusions reached, I will not repeat them now, I will just say take as read paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20. The parties have those paragraphs so I won't take up time reading them.
Further summary of conclusions
19 Having considered the parties' additional submissions on the pleading issues that I raised, and regarding D1's application for leave to amend its defence, for reasons which follow, save for my tentative conclusions regarding relief, I otherwise confirm and adopt my draft reasons as contained in Annexure A, but in summary, I would add the following conclusions.
20 D1 has accepted the 28LN Certificate, the effect of which is to accept that in the litigation, as between the plaintiff and D1, the plaintiff has satisfied the threshold level as defined (five per cent or more) (28LB), and that she has therefore suffered significant injury as defined (28LF(aa)). As I say, I am not going to read the sections in full now, please take as read those sections.
21 D1's acceptance was both deemed (a legal fiction, see Muller v Dalgety & Co Ltd & Anor (1909) 9 CLR 693, created by the operation of 28LW(4)) and real, as a matter of fact (admitted in part by paragraphs 2, 3 and 18 of D1's first written submissions, exhibit 1, and also to be inferred from D1's conduct and from Mr Makowski’s oral submissions, transcript pp.48 and following).
22 As a matter of statutory construction, the Panel's determination on the medical question referred by D2 is irrelevant to the plaintiff's claim against D1. Subject to the filing of a statement in accordance with 28LZM(4), the plaintiff has satisfied the statutory prerequisite for the recovery of non-economic loss damages from D1:
· In construing statutes primacy must be given to the words of the statute, to Parliament’s intent and to the purpose of the legislation.
· In the absence of clear and unambiguous language to the contrary, Parliament is presumed not to have intended to abrogate common law rights.
· The plaintiff’s common law right to recover non-economic loss has been limited by statute (Part VBA). If the plaintiff fails to satisfy the statutory threshold, her right to recover such damages is abrogated.
· The statute establishes a “code” as to how the plaintiff may satisfy the threshold. There are three ways that the threshold can be satisfied –
o 1) waiver (28 LO, 28LP, 28LQ and 28LR);
o 2) acceptance of certificate of assessment (28LT, 28LU, 28LW, 28LWA, 28LWB, 28LWC) and
o 3) if a respondent does not accept the 28LN Certificate, then by determination of the Medical Panel (28LWE and Division 5) in response to referral of a medical question by that respondent. In such a case the Panel’s determination prevails over the 28LN Certificate.
· There is nothing in Part VBA to suggest that satisfaction of the threshold in accordance with Part VBA is conditional upon the non-occurrence of some other later event. That is to say, it remains conditional until: 1) no other tortfeasors are identified or joined by any of the parties; or 2) if all potential tortfeasors have been identified and joined, none of them establishes any bar to the plaintiff’s recovery of non-economic loss damages (ie. all waive, all accept the 28LN Certificate, or all refer the medical question and the Panel determines that the threshold has been satisfied).
· Such an interpretation would mean that plaintiff's right to recover non-economic loss against a particular defendant could never be satisfied because it is conditional until the statutory limitation period to sue all potential tortfeasors has expired. This would impose a hurdle impossible to overcome: if the plaintiff's right to recover non-economic loss damages becomes unconditional only when the statute of limitations has expired, how can she meaningfully litigate her claim after her right to do so has also expired? Even if her right to sue has not expired (because proceedings have been issued but not actively prosecuted) does it mean that her claim simply has to go into some sort of a holding pattern for several years, with no steps taken until the statute of limitations has run its course? What if amendment of the claim is sought after the statutory limitation period has expired?
· The statute envisages that where there are multiple respondents, they can act together represented by one of them for the purposes of the claim (28LU - all are bound by the lawful actions of the representing respondent), or they can act independently of each other (in which case the actions of the others are not binding against them). In the case of waiver, 28LR applies, and in the case of acceptance of assessment 28LWC applies. Different courses may mean different consequences for the plaintiff.
· In this case, the plaintiff made claim against each respondent at different times. Accordingly, time for each respondent to elect a course commenced to run at different times. Neither respondent agreed with the other to represent it. This was not possible in any event because D1's options to respond expired before D2 was served with a 28LN Certificate. Each respondent was bound to act independently of each other, unencumbered by the forensic decisions made by the other.
· Each respondent had the independent right to adopt a course different from the course elected by the other, and did so as a matter of fact. Those independent choices may have produced different consequences for the plaintiff, but this result is consistent with, if not catered for, by Part VBA.
· The subsequent trial of the proceedings will be framed by the courses that each respondent made.
· D1 elected to take no action in response to service of 28LN Certificate. No question was referred to the Panel. D1 lost the right to refer such a question. D1 concedes that it is no longer open to D1 to seek, much less provide a determination of the Medical Panel. Since that option has been closed off in the litigation between the plaintiff and D1, the plaintiff has, in my judgment, satisfied unconditionally the statutory threshold in her suit against D1.
· D1 concedes that there is no statutory provision to suggest that time starts to run again for all respondents to elect a course every time a new party is joined. Each litigation runs in parallel.
· D1 concedes that D1’s right to refer a medical question to the Medical Panel is statute barred (28LWE(2)). As a matter of construction, there is no, and there can be no Panel's determination in the proceedings between the plaintiff and D1. Any other Panel determination must necessarily not be a determination between these parties.
· The Court cannot speculate what the Medical Panel might have determined had D1 referred a medical question to it within time. In the present application, D1 has assumed that had it referred a medical question to the Medical Panel, the determination would be adverse to the plaintiff. However, there is no lawful or factual basis to make such an assumption and no such conclusion is permitted or is open.
· Information given to the Medical Panel on referral of a medical question by D2 is protected, and subject to exceptions that do not apply here, cannot be used in any civil or criminal proceedings in any court other than a proceeding relating to the claim, and I emphasise, for which the determination is sought (28LZF) That is to say, the claim as between the claimant plaintiff and the referring respondent, D2. The Panel's reasons for determination are inadmissible. Only the claimant and referring respondent receive the Panel's determination (28LZG(2)). There is no lawful means of establishing what evidence or Certificate of Assessment was presented to the Medical Panel, whether any further examination of the plaintiff was conducted, whether procedural fairness was in fact accorded or, if the panel came to the correct determination. All we know from material filed in this interlocutory proceeding, is that in response to the question referred to it by D2, the Panel determined that the threshold was not satisfied, and the plaintiff has not sought to review the Panel's determination. The Panel's reasons for determination are inadmissible and are now, for all intents and purposes, final as between the plaintiff and D2.
· D1 concedes that there is no statutory or other source of jurisdiction to enable D1 to “file” the Panel's determination. Only the claimant plaintiff must file such a determination if her entitlement to the recovery of non-economic loss damages is in issue as between her and a particular respondent. The plaintiff is not seeking such damages from D2, so no such issue arises in her suit against D2. The plaintiff is not required to file the Panel's determination in the proceedings between her and D2. The determination is not properly before the Court, and will not be unless it is somehow admissible in some other way.
· D1 is unable to point to any authority that would support the admissibility of the determination. Whether the document gains some relevance and later becomes admissible will be a question for the trial judge.
· Proceedings before the panel are administrative in nature. The Panel is not bound by the rules of practice or practices as to evidence (28LZ(1)). It must act informally, without regard to technicalities or legal forms (28LZ(2)). The Medical Panel is not a court of record, see Ex Parte Power, Re Devereaux [1957] SR (NSW) 253 at 260, and its determinations do not have the status of court orders. As such, they have no force or effect except as provided by statute. Their only relevance to the ultimate trial is defined by 28LZH.
· Part VBA envisages separate referrals by individual respondents, which may or may not be consolidated (28LZB) (see s.45 of the Interpretation of Legislation Act 1984) If multiple referrals are not consolidated, but rather are heard separately by differently constituted panels at different times, and potentially with different evidence, separate determinations which appear on their face to be inconsistent, will nevertheless be equally binding on the court (28LZH(1) and (2)). The Court is compelled to accept both notwithstanding their apparent inconsistency. There is no statutory resolution of any such apparent conflict, one does not prevail over the other. That is because they stand independently of each other. In court proceedings, rules have evolved to ensure that as far as possible inconsistent verdicts are avoided. Even so, sometimes apparently inconsistent verdicts occur. D1 did not point to any such rule in Medical Panel hearings directed at avoiding inconsistent determinations.
· If inconsistent Panel determinations are equally binding on the Court under s28LZH, then regardless of joinder, the plaintiff may be lawfully entitled to recover non-economic loss from one defendant but not another. If a court is compelled to accept two determinations which are apparently in conflict with each other, why is it unthinkable that the same result might flow if one defendant has accepted that the plaintiff has suffered significant injury and has chosen not to refer a medical question to the Medical Panel, although the other has?
· Had D1 referred a medical question to the Medical Panel, and had the Panel determined the matter in favour of the plaintiff, would D2 have lost its right to refer a question to the panel? D1 says yes. This, however, would be an abrogation of D2's fundamental right to natural justice and the common law right to be heard (the Audi alteram partem principle of procedural fairness). Again, the rules of statutory construction would presume no such statutory or parliamentary intent. There is nothing in Part VBA to suggest that once a Panel makes a determination, it is binding on every party who ever was or who ever will be a party to the proceedings.
· Part VBA contains matters that are substantive law and are not procedural in nature (28LD). There is no “procedure” for enlarging time or waiving the statutory requirements provided in the Part. In any event, D1 does not seek any such leave to enlarge time or waive any statutory requirement in the Part.
· There is nothing to defeat the plaintiff's right to recover non-economic loss damages from D1. Statutory intent is clear that D1 has limited time to obtain such a determination, and once time expires, it has no right to seek a determination. If it has no determination, the 28LN Certificate, which D1 accepted, stands as the final step for the plaintiff to establish her right to seek recovery of non-economic loss damages from D1.
· If the interpretation contended for by D1 is correct, then absurd and/or unintended consequences would flow, and I will amplify that later in my final judgment. I have referred to some of them in the other draft judgment.
23 I reject the submission that on the pleadings as they currently stand, D1 has taken issue with the plaintiff's right to recover non-economic loss damages from D1. I repeat the plaintiff has satisfied unconditionally the threshold, and subject to filing a statement under 28LZM(4), to the effect that D1 is deemed to have accepted the 28LN Certificate, she has met the statutory prerequisite set out in 28LE. No more than that is required of her. If there is some statutory impediment to the recovery of those losses from D1, then it must be pleaded as a special defence in accordance with the rules of pleadings. I have referred to those rules in Annexure A.
24 In the alternative, D1 has sought leave to amend its defence. Take as read the proposed amendments.
25 I reject D1's application for leave to amend the defence. No formal application has been made, however I am prepared to assume that paragraphs 19 and following of D1's supplementary submissions, exhibit 2, stand in the stead as such application. The plaintiff is on notice regarding the proposed amendment. No affidavit in support of the proposed amendment has been filed but no technical objection is taken.
26 Today the proposed draft amended defence has been filed and I propose to have that marked exhibit 3. I discussed with counsel whether the relief that should be given today should be in the nature of declaratory relief, or answers to preliminary questions to be framed by the parties (see Orders 47.04 and 1.14 together with the Civil Procedure Act 2010).
27 I refuse leave to allow the proposed amendment for the following reasons:
1. It would be futile to allow the amendment.
o The proposed amendment would not raise an issue in genuine controversy between the parties.
o There would still be no determination referred to under Division 4 to which Division 5 applies relevant to D1.
o D1 is not seeking leave to extend time to refer a question to the Medical Panel under Division 4. D1 is not seeking to set aside its acceptance or deemed acceptance of the 28LN Certificate.
o “Deemed acceptance” has the same effect as an admission. As to circumstances where it is appropriate to withdraw an admission, see Wimpole Properties Pty Ltd v Beloti Pty Ltd (No 2) [2011] VSC 85, but no such application was made.
o There is no procedure to permit such leave to be granted in any event, which I think D1 concedes.
o The Panel's determination in the case of D2 has no status in the proceeding between the plaintiff and D1, and presents no obstacle or bar to the plaintiff.
o The fact of joinder is irrelevant to the plaintiff's right to recover non-economic loss damages from D1. D1 did not refer to any authority or principle to support the proposition that joinder has the effect of “pooling” all issues between all parties regardless of their pleadings.
o The Panel's determination is inadmissible and is of no relevance to the litigation between the plaintiff and D1.
o The right to now challenge the 28LN Certificate is statute barred,. Permitting amendment would not overcome this obstacle.
2. It would be unjust to allow the amendment.
o Even if D1 is not statute barred from obtaining a determination from the Medical Panel or challenging the plaintiff's right to recover non-economic loss damages from D1 (the result of the referral cannot be assumed in any event).
o In my judgment it is unconscionable for D1 to seek forensic advantage and rely upon a determination it never sought and which it cannot now seek.
o D1 is bound by the Model Litigant Guidelines. D1 gave thought to whether D1 should challenge the 28LN Certificate and decided not to. It is disingenuous to say the passive acceptance does not constitute any admission about the plaintiff’s satisfaction of the threshold. The plaintiff proceeded to prosecute her suit against D1 in reliance on D1's deemed acceptance of the 28LN Certificate. D1's attempt to gain forensic advantage from a determination it never sought, played no part in, which is inadmissible, and which is contrary to its deemed acceptance of the 28LN Certificate does not sit comfortably with the Model Litigant Guidelines.
o D1 should be bound by its forensic or tactical choices and should not try and have a second bite of the cherry because another party subsequently joined, elected a different course, producing a result D1 now prefers.
o I have not determined whether D1 has waived the right to challenge the plaintiff's right to recover non-economic loss damages from D1, (Commonwealth v Verwayen (1990) 70 CLR 394) since the plaintiff does not rely upon waiver.
o Similarly, I have not determined whether D1 is estopped from challenging the plaintiff's right to recover non-economic loss damages from D1, since the plaintiff does not rely on any estoppel (Commonwealth v Verwayen).
28 I now turn to the specific proposed amendments. Turning to particularly 12A, there was no Medical Panel determination made which the court must accept under 28LZH in the claim made by the plaintiff against D1. 12B, no source of power was identified to enable the defendant to file the Medical Panel's determination, and I note the concession made by Mr Makowski to that effect in his discussion with me. There is no such determination validly before the court in the proceedings between the plaintiff and D1. I refer to and repeat the findings I made that were set out in Annexure A concerning the effects of joinder and the rules of pleading and so on. I don't propose to repeat them here.
Relief
29 An issue has arisen whether questions should be posed to be resolved as preliminary issues under the rules. I have already referred to Annexure B, the potential orders and directions. I gave a copy of those orders and directions to the parties. Paragraph 7 included whether a preliminary question of whether the determination of a Medical Panel on 17 May 2013 upon referral to it on 7 March 2013 on medical questions by the second defendant, is a bar to the plaintiff recovering damages for non-economic loss in the proceeding against the first defendant. No one has actually asked me that question, and to this extent I agree with Mr Riordan that whether I regard these issues as preliminary questions and answers, or prayers for declaratory relief, the result will probably be the same.
30 In the proceedings brought by the plaintiff against D1, subject to an undertaking to be given by the plaintiff's solicitor, that the plaintiff will file, and that the plaintiff does in fact file, a statement in accordance with s28LZM(4) of the Wrongs Act 1958, to the effect that D1 is deemed to have accepted the Certificate of Assessment dated 25 June 2012 under s.28LN, which I will call the “28LN Certificate”, I am prepared to declare that D1 is deemed to have accepted the 28LN Certificate. I am also prepared to declare that the plaintiff has satisfied the statutory threshold requirements set out in Part VBA of the Act, and that she has suffered “significant injury” as defined for the purposes of that Part in that particular proceeding. I declare that the plaintiff is entitled to seek recovery of non-economic loss damages from D1.
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ANNEXURE A
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Unrevised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-04195
| LORRAINE HART | Plaintiff |
| v | |
| DIRECTOR OF HOUSING and HANOVER WELFARE SERVICES | First Defendant Second Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 23 September 2013 | |
DATE OF JUDGMENT: | 18 October 2013 | |
CASE MAY BE CITED AS: | Hart v Director of Housing & Hanover Welfare Services | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1402 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Legislation Cited: Wrongs Act 1958, Part VBA
Cases Cited:Teague v Jones [1925] VLR 205; Lee v Irons [1958] VR 436; Thorp v Holdsworth (1876) 3 Ch D 637; Humphris v Newport Quays Stage 2A Pty Ltd [2009] FCA 699; Carter v Commissioner of Taxation (2001) 109 FCR 215
Judgment: The summons is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with Ms G J Cooper | Nowicki Carbone |
| For the First Defendant | Mr E Makowski | Moray & Agnew Lawyers |
| For the Second Defendant | Ms B Altson | TressCox Lawyers |
HER HONOUR:
Introduction
31 The plaintiff, Lorraine Hart, alleges that on 7 June 2011, she slipped and fell on stairs at “Hanover Transitional Housing”. She claims that as a consequence she sustained injury. She issued proceedings first against the Director of Housing, the first defendant (“D1”) and later against Hanover Welfare Services, the second defendant (“D2”). The plaintiff alleges negligence against each of them. Both defendants are now joined as parties to the current proceedings.
32 By operation of the provisions of Part VBA of the Wrongs Act 1958 (as amended) (“the Act”), the plaintiff is not entitled to recover non-economic loss damages against a party unless she establishes that she has suffered “significant injury” as defined in Part VBA of the Act. In regards to the suit brought against D1, the plaintiff submits that the condition precedent of “significant injury” was satisfied on 11 November 2012 when D1 was “deemed to have accepted” a medical certificate issued pursuant to section 28LN of the Act, which certified her degree of permanent impairment as more than 5 per cent (the applicable threshold in this case to establish significant injury), and that, accordingly, she is entitled to recover non-economic loss against D1. However, in regards to the suit brought against D2, the plaintiff concedes that she is unable to recover damages for non-economic loss against D2 because, on 17 May 2013, the Medical Panel, on referral of “a medical question” by D2, determined that she did not meet the threshold (“the Panel’s determination”).
33 The issue raised by this case is whether declarations should be made to the effect that the Panel’s determination has not disqualified the plaintiff from recovering non-economic loss damages against D1. The plaintiff submits that she has complied with all statutory requirements enabling her to recover such losses from D1, and that D1 cannot rely on the determination. D1 submits that the declarations should not be made because the determination finally resolves the plaintiff’s right to recover non-economic in the proceedings before this court. The determination is adverse to the plaintiff. D2 adopts the submissions of D1.
Overview of the competing submissions
34 In essence, the plaintiff submits that notwithstanding the Panel’s determination, she is entitled to recover non-economic loss damages from D1 because once qualified under the Act to recover them from D1, this accrued right cannot be retrospectively quashed. She further submits that the Panel’s determination in the case against D2 is irrelevant to her cause of action against D1.
35 D1 submits that the Panel’s determination is binding on all parties to the proceedings. D1 submits that notwithstanding its acceptance of the plaintiff’s certified level of impairment, as there is inconsistency between that acceptance and the Panel’s determination, the latter must prevail. D1 argues, in essence, that there is inherent impermissible inconsistency in the one proceeding regarding the level of the plaintiff’s impairment. D1 submits that the plaintiff cannot be found on the one hand to have a significant injury for the purposes of the suit against D1, but on the other be found not to have a significant injury in the suit against D2. Note, this would be the precise outcome if there were two referrals with inconsistent results. D1 submits that in such circumstances, the Panels determination “trumps” D1’s acceptance of the plaintiff’s certified level of impairment and that as a consequence, D1 is no longer bound by that acceptance. Accordingly, any right the plaintiff once had to recover non-economic loss damages against D1 has now been extinguished.
36 The trial against both defendants was listed to be heard before a jury of six on 9 October 2013, however that date was vacated administratively by consent of the parties.
37 On 16 August 2013, the plaintiff issued a summons returnable before me on 19 September 2013. The plaintiff sought:
· an order in the nature of the declaration, that D1 is deemed to have accepted that the plaintiff has suffered significant injury for the purposes of Part VBA of the Act;
· an order in the nature of the declaration, that D1 cannot rely upon the Panel’s determination issued on 17 May2013.
38 Mr J Riordan appeared with Ms G Cooper on behalf of the plaintiff. Mr E Makowski appeared on behalf of D1. Ms B Alston appeared on behalf of D2.
Summary of conclusions reached
39 The trial of the action will be conducted in accordance with the rules of practice, procedure and evidence that apply in the State of Victoria.
40 Applying those rules of practice, procedure and evidence, the proceedings instituted by the plaintiff against each defendant are separate, although joinder has been effected.
41 Joinder does not have the effect of pooling all of the issues raised in all of the pleadings. Each cause of action pleaded against each defendant will be heard at the same time for the sake of convenience, but in reality, separate trials will be conducted. There are some common features which may result in the cross-admissibility of evidence, but ordinarily questions of evidence are to be determined by the trial judge having regard to the facts in issue.
42 Which facts are in issue between the parties will be determined by the pleadings.
43 In the proceedings brought by the plaintiff against D1, the plaintiff has averred that the plaintiff “has obtained a Certificate pursuant to S28LN of the Wrongs Act 1958 certifying the degree of permanent impairment for which she suffers and is entitled to recover non pecuniary loss damages” (paragraph 9 Statement of claim indorsed in Writ).
44 D1 admits that it is deemed to have accepted the 28LN certificate, that it has lost the right to seek a determination from the Medical Panel, and that but for the joinder of D2, the Panel’s determination would not be relevant to the proceedings as between the plaintiff and D1. D1 would be bound by the S28LN Certificate and the plaintiff would be entitled to recover non-economic damages against D1.
45 Any assertion that the plaintiff’s claim for the recovery of non-economic loss damages is statute barred is a special defence that must be specifically pleaded. D1 has not pleaded any such defence.
46 In the proceedings as between the plaintiff and D1, no issue of the plaintiff’s right to recover non-economic loss arises. Accordingly, the making of a declaration is unnecessary.
47 In the proceedings between the plaintiff and D2, no issue arises as to the recovery of non-economic loss, since they are no longer claimed against D2.
48 Even if joinder had the effect of “pooling” all issues in all cases, there is still no issue before the court on the whole of the pleadings regarding the plaintiff’s right to recover non-economic loss.
49 The Medical Panel’s certificate is not before the court in any of the proceedings. The attempted administrative filing of the determination by D1 does not give the document any particular legal status.
50 There is no reason to grant any declaration since there are no issues before the court that call for the same.
Chronology
51 The background facts are not disputed, and are summarised in the chronology below. I have also included references to pleadings and orders contained in the court file (but to which no direct reference was made by the parties).
Date Event Observations 07/06/11 Plaintiff alleges that she was injured when she slipped and fell on stairs at Hanover Transitional Housing on 7 June 2011 (“the incident”). 25/06/12 Mr Peter Mangos, surgeon, certifies the plaintiff’s degree of impairment resulting from her injury to be more than 5%. He describes the injury assessed as Trimalleolar fracture of right ankle necessitating open reduction and internal fixation. The certificate is in accordance with Form 1, Regulation 3 “Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury”, made under section 28LN of the Wrongs Act 1958 (the “Section 28LN Certificate”). 20/08/12 Plaintiff signs Overarching Obligations Certification. 30/08/12 Plaintiff issues proceedings against D1 seeking damages for injuries suffered as a consequence of the incident. She claims general damages and special damages, but makes no claim for loss of earnings or loss of earning capacity.
The Statement of Claim indorsed on the Writ avers:
“9) The Plaintiff has obtained a Certificate pursuant to S28LN of the Wrongs Act 1958 certifying the degree of permanent impairment for which she suffers and is entitled to recover non pecuniary loss damages”
Plaintiff also files Proper Basis Certification in respect of the Writ and Statement of Claim.
07/09/12 D1 files unconditional Notice of Appearance (Form 8A) in accordance with Rule 8.05(1). D1 also serves Notice that a Jury is required. 11/09/12 Plaintiff’s solicitor, pursuant to 28LT serves on solicitor for D1 a copy of Mr Mangos’ medical report dated 25 June 2012 together with the section 28LN Certificate. Other medical material is served on D1, not relevant for present purposes. Under the provisions of Part VBA of the Wrongs Act, D1 has 60 days to take action, otherwise it will be deemed to have accepted the 28LN Certificate. Because D1 took no action within 60 days, by 11/11/12 D1 was deemed to have accepted the 28LN Certificate and D1’s right to refer the matter to the medical panel for determination was extinguished. Note that the certificate is served AFTER the Writ has been issued and the defence filed.
D1 takes no objection to the timing of service of the certificate.
18/09/12 D1 files Defence in which it asserts that Hanover Housing was managed and occupied by D2. Negligence is denied, but if there was negligence on the part of D1, then it alleges contributory negligence on the part of the plaintiff.
D1 “does not admit” the contents of paragraph 9 of the Statement of claim which avers:
“9) The Plaintiff has obtained a Certificate pursuant to S28LN of the Wrongs Act 1958 certifying the degree of permanent impairment for which she suffers and is entitled to recover non pecuniary loss damages”
D1 also files Proper Basis Certification in respect of the defence.
D1 has not argued that the writ is incompetent because it was issued prior to service of the certificate. The Act prohibits recovery of non economic loss damages unless plaintiff has a significant injury, but it does not prevent a writ from being issued without such a certificate.
Note D1 also had power to respond to the certificate of assessment by saying it is not a proper respondent 28LW(2)(d), but it did not do so.
See also rules of pleading.
15/10/12 Judge Misso makes various orders in chambers (based on signed minutes of consent orders dated 29/9/12). The orders fix the hearing date as a Jury trial on 9/10/13, and provide the usual procedural orders, including:
· Exchange of medical and expert reports
· Mediation
· Liberty to apply
At this stage it appears that no issue is taken with the certificate or the “deemed” acceptance of it. The procedural orders sought are made as if the usual challenges will be made to medical material at trial, but no issue is taken with the fact that the plaintiff sustained “significant injury”. The defendant has formally failed to admit the certificate, but has proceeded as if bound by its deemed acceptance of it.
See pleadings rules.
31/10/12 Plaintiff serves Notice of Discovery on D1, pursuant to order of Judge Misso 15/10/12. 11/11/12 By operation of s28LW(1), (2) and (4), D1 is deemed to have accepted the 28LN Certificate and is prohibited from referring a medical question to the Medical Panel in relation to the assessment (as contained in the 28LN Certificate) 28LWE(2). D1 knows the subject of the litigation and of the issues it raises. D1 is aware that the plaintiff asserts the certificate proves significant injury. It does nothing to seek further information about it, and more significantly it has not exercised its statutory right to refer a medical question to the Medical Panel under the Aft.
It has acted as if bound by acceptance of the plaintiff’s injury as a significant injury.
13/11/12 D1 requires discovery of the plaintiff, pursuant to order of Judge Misso 15/10/12. 10/12/12 Plaintiff serves Affidavit of Documents. 11/12/12 Plaintiff files “Significant Injury Certificate” pursuant to S28LZM(2)(A) of the Act.
Note, the plaintiff has not yet made a statement as required by 28LZM(4) to the effect that D1 is deemed to have accepted the Certificate of assessment. There is no time limit to make such a statement and no consequences are spelled out for failure to comply. The first declaration sought is in terms to this effect. Note – paragraph 9 of the Statement of Claim is of the same substance of such a statement.
Still nothing from D1 about the certificate. It has not sought any extension of time to refer a medical question to the Medical Panel, if indeed there is any such power. 13/12/12 Plaintiff files Amended Writ and Amended Statement of Claim, by consent under Rules 36.01 and 36.03. Now D2 is joined as a party to the proceedings.
Plaintiff also files Proper Basis Certification.
Presumably the plaintiff decides to join D2 because of D1’s assertion that D2 was in fact the occupier of Hanover Housing and as such was responsible for its maintenance. 18/12/12 D1 files defence to the amended Statement of Claim and Writ together with Proper Basis Certification in respect of the defence filed by D1 (Form 4B, Rule 4.10)).
Again it does not admit paragraph 9 of the Statement of Claim regarding the Certificate pursuant to S28LN.
02/01/13 D2 files Appearance. 10/01/13 Plaintiff’s solicitor serves on solicitor for D2 a copy of Mr Mangos’ medical report dated 25 June 2012 together with the [same] section 28LN Certificate. Other medical material is served on D1, not relevant for present purposes.
Now time starts to run against D2 in respect of the Certificate of Assessment. It has until 11/3/13 to take action.
See s 44 Interpretation of Legislation Act 1984. 11/01/13 D1 serves Notice of Contribution against D2 (Form 11B, Rule 11.15(5)). By operation of s23B of the Act it is possible (although I need not decide) that D1 will not be able to recover from D2 non-economic loss that D1 may be ordered to pay because plaintiff had no right to recover such damages against D2. 31/01/13 D1 files Overarching Obligations Certification. 11/02/13 Plaintiff serves Notice for Discovery on D1 pursuant to order of Judge Misso 15/10/12. 20/02/13 D2 files Defence in which D2 admits that the certificate was obtained pursuant to 28LN, but otherwise does not admit the allegations pleaded in paragraph 9 of the Statement of Claim.
07/03/13 D2 acknowledges that it is a proper respondent to the claim (28LW) however refers a medical question in relation to the assessment to a medical panel for determination pursuant to section 28LWE of the Act. D2 has never filed the determination of the Medical Panel. A copy of it was later sent to the Court under cover of letter purporting to “file” the document by D1 (7/6/13). 16/04/13 Plaintiff serves interrogatories for the examination of D1 pursuant to the order of Judge Misso 15/10/12. 17/05/13 The Medical Panel issues Certificate of Determination pursuant to section 28LZG(2)(a) of the Act. The Panel determines that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level (the “Panel’s determination”). 23/05/13 D1 answers plaintiff’s interrogatories. 31/05/13 D1 swears affidavit of documents. Note there is no reference to the Medical Panel’s determination. 07/06/13 D1 files copy Medical Panel Certificate (obtained by D2). No explanation as to how D1 obtained a copy of the Panel’s determination. D2 still has not filed the original, nor any statement to the effect that it relies upon it. 11/06/13 Solicitors for plaintiff and D1 discuss whether D1 can rely on the Panel’s determination. D1 in this conversation and in ensuing correspondence confirms D1’s intention to rely on the Panel’s determination notwithstanding the fact it was not the referring party. Plaintiff maintains it has no right to do so. See effect of joinder. Note that the determination is not “evidence” as such, tendered by a party that might be admissible against all parties. It has a purpose defined and limited by statute. i.e. but for the provisions in Part VBA, the Panel’s determination has no status. 23/07/13 D2 files answers to plaintiff’s interrogatories. 19/08/13 Plaintiff issues Summons seeking declaratory relief.
52 The plaintiff and D1 each tendered written submissions, which they augmented by oral submissions. D2 adopted D1’s submissions.
PLAINTIFF’S FINAL SUBMISSIONS – Exhibit A
53 Exhibit A is set out in full:
The Application
1.Application is made for a declaration that a determination by the Medical Panel made at the request of the second defendant on 17 May2013 in respect of the plaintiff’s injuries cannot be relied upon by the first defendant.
The legislative framework
2.Part VBA of the Wrongs Act 1958 (Vic) governs the rights of injured persons to recover general damages (s 28LE). It establishes a threshold level of “more than 5%” (s 28 LC).
Significant injury
3.
Part VBA Wrongs Act, restricts the recovery of damages for non-economic loss to persons who have suffered “significant injury” (s 28LE).
4.“Significant Injury” is defined in s 28LF(1)(a) as an injury assessed as satisfying the threshold level.
Establishing significant injury
5.Significant injury may be established by either:
(a)an agreement by the respondent to waive the assessment of impairment
(s 28LO);
(b)service of a certificate of assessment by an approved medical practitioner
(s 28LT);
(c) a Medical Panel determination (s 28LF).
Certificate of assessment
6.A certificate of an approved medical practitioner assessing the claimant as reaching the threshold level must be served on the respondent in accordance with s 28LT(2) and will suffice to entitle recovery of damages if the respondent admits the assessment (s 28WE(2), s 28WE(3)) or if the respondent fails within 60 days of service to respond, in which case the respondent is then “deemed” to have accepted the assessment (s 29LW4, s 28LWE(3)).
The Medical Panel
7.
The respondent to a certificate of assessment served upon it may refer the medical question to a Medical Panel (s 28LWE(1)).
8.A determination by the Panel upon the referral will override the certificate of assessment from which the referral was made (s 28LWE(1), s28LF).
History
First defendant
9.
(a) The plaintiff issued proceedings against the first defendant on 30 August 2012 claiming general damages and special damages;
(b)
on 25 June 2012, Mr Peter Mangos, general surgeon, furnished a certificate of assessment pursuant to section 28LN of the Act finding an impairment of more than 5%;
(c)
the certificate was served on the first defendant’s solicitors, Moray & Agnew, by letter dated 11 September 2012 (s 28LT(1));
(d)
the first defendant did not respond in writing to the plaintiff or refer to the Medical Panel within 60 days;
(e)
as a result, the first defendant was deemed to have accepted the assessment (s 28LW, 28LWE) on about 10 November 2012.
10.As a consequence of being “deemed” to have suffered significant injury in respect of her claim against the first defendant, the plaintiff had an accrued right to claim general damages from the first defendant.
Second defendant
11.(a) By amended writ dated 13 December 2012, the second defendant was joined by the plaintiff as a further defendant to the proceeding;
(b)
by letter dated 10 January 2013, a report of Mr Mangos was served on the second defendant’s solicitors (s 28LF) (s 28LT(1));
(c)
on 7 March 2013, the second defendant referred the question of the degree of impairment of the plaintiff’s injuries for assessment by the Medical Panel (s28LWE);
(d)
on 17 May2013, the Medical Panel determined that the degree of impairment suffered by the plaintiff did not satisfy the threshold level (s 28LZG);
(e)as a result, the plaintiff is not entitled to proceed against the second defendant for general damages (s 28LF(1)(a)).
Matter in issue
12.The first defendant contends that it is entitled to rely upon the determination of the Medical Panel obtained by the second defendant, and that the determination retrospectively extinguishes the accrued right the plaintiff had to claim general damages from the first defendant.
Accrued cause of action
13.The plaintiff is entitled to recover damages against the first defendant. That entitlement accrued on the expiration of 60 days from service of the certificate of assessment of significant injury (s 28LW(4) and s 28LE). That right arose in November 2012.
14.The joinder of the second defendant in December 2012 precipitated service of the certificate on the second defendant, the referral by the second defendant and the determination of the Medical Panel.
15.By that time, the entitlement of the plaintiff against the first defendant had accrued and the plaintiff’s cause of action against the first defendant was established. The Wrongs Act provides that its provisions constitute “substantive law” and are not procedural in nature (s 28LD). As the result, the first defendant seeks to set aside an established common law claim. It seeks to extinguish a common law claim.
Separate determinations
16.The Part VBA provisions allow any respondent to seek a Medical Panel determination as to significant injury. There can be no doubt that the second defendant was entitled to seek such a determination (s28LWE(1)). There can be no doubt that the determination governs the plaintiff’s claim against the second defendant.
17.However, the Medical Panel determination was made to an individual party the second defendant and, in particular, to a respondent upon whom a copy of a certificate of assessment was served (s28LWE(1)). The Part recognises that one defendant may fail to refer and another refer. Determinations are to the particular respondent who sought the assessment, although combined applications are recognised (s 28LU, s 28LZB).
18.The separate and distinct character of determinations is highlighted throughout the provisions of Part VBA.
§ In s 28LWC, it is provided that “an acceptance under this division by a respondent to a claim of an assessment does not bind any other respondent”. In other words, they are separate determinations of separate effect.
§ In the same vein, in s 28LR, an agreement by one respondent to a claim that “an assessment is not required” is expressed not to bind “any other respondent”.
Separate and distinct claims
19.There is constant reference to “a claim” or “the claim” being the particular claim in issue. Each respondent must be served individually with the certificate of assessment. Any respondent, individually, is permitted, upon service of a copy of the certificate of assessment, to refer a medical question to the Medical Panel (s 28LWE). No common approach is required.
20.The nature of determinations and their effect upon the parties is set out throughout Part VBA and refers to individual respondents upon whom a certificate is served. The consequences relate to the claimant and that respondent. Provisions evidencing this are as follows:
(a)in s 28LO, s 28LP and s 28LQ reference is made to “a proper respondent to the claim” (s 28LW)(3));
(b)in s 28 LW, reference is made to “the respondent” on whom a copy of a certificate is issued who is then deemed to have accepted an assessment upon a failure to respond in writing;
(c)in s 28 LWE(1), the capacity of a respondent to refer a medical question to the Panel is identified as “the respondent on whom a copy of the certificate of assessment is served” (singular);
(d)in s 28LZH(2), the emphasis is again on “a claim”.
21.In this case, the claim that is relevant to the Medical Panel is the claim against the second defendant.
The Medical Panel determination cannot apply to the first defendant
22.The deeming provisions of the Act provide a clear framework to prevent respondents from delaying or not responding. It would entirely inconsistent with the operation of the Act to later allow a defendant to avail itself of another respondent’s successful referral to disentitle a plaintiff. It would essentially be making the “deeming provisions” entirely irrelevant in cases where there are multiple defendants.
23.The plaintiff submits that this could not have been legislative intention of section 28LZH(2). This is particularly so in light of 28LWE(2), which specifically provides that a respondent may not refer a medical question in relation to an assessment to a Medical Panel if the respondent is deemed to have accepted the assessment.
Conclusion
24.To allow the retrospective operation of a Panel determination would allow a tactical injection of a further party (for example a third party) by a defendant to extinguishe [sic] an earlier and settled claim.
25.Interpretation leading to unreasonable consequences or inconsistency should be avoided. (Laws of Australia 24.1.870).
26.The plaintiff therefore submits that the proper interpretation of the relevant sections, when read in the context of Part VBA as a whole, is that each respondent be dealt with separately, and that sections 28LF and 28LZH(2) only allow a respondent to rely on a Medical Panel determination that that particular respondent has obtained.
THE FIRST DEFENDANT’S FINAL SUBMISSIONS (adopted by Second Defendant ) – Exhibit 1
54 The first defendant’s submissions as contained in Exhibit 1 are as follows:
BACKGROUND
1.The plaintiff seeks a declaration that the first defendant (hereinafter referred to as ‘the Director’) is deemed to have accepted that the plaintiff has suffered significant injury for the purposes of Part VBA of the Wrongs Act 1958 (Vic) (‘the Act’), or alternatively, that the Director cannot rely upon a Medical Panel determination of 17 May2013.
2.The plaintiff has previously served a certificate of assessment of Mr Mangos (general surgeon) under s28LT of the Act.
3.The Director did not respond to the service of a copy of a certificate of assessment under s 28LW of the Act.
4.In December 2012, the second defendant was joined by the plaintiff to the proceeding.
5.The second defendant referred a medical question to a medical panel under s28LWE of the Act.
6.Pursuant to s28LZH(2), a Medical Panel has determined that the degree of the plaintiff’s impairment resulting from an injury does not satisfy the threshold level.
THE DIRECTOR’S POSITION
7.It is submitted that properly construed, the plaintiff cannot claim non-economic loss for her claimed injuries by virtue of s28LZH(2) of the Act which reads
A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
8.Alternatively, it is submitted that the Court does not have power under Part VBA of the Act, to make the declarations sought in the Summons.
9.Focus will first be given to the primary position of the Director.
PART VBA
10.It is submitted that the Court of Appeal in Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58 (‘Colquhoun’), properly characterizes the purpose of this Part of the Act when it said at [14]:
The right to sue for non-economic loss has been taken away, by statute, from all persons other than those who have suffered significant injury (as defined).
11.The central or leading provision of Part VBA is s28LE, which states that a person is not entitled to recover damages for non-economic loss in a claim for injury of the type sought to be made by the plaintiff in this case, unless the person has a significant injury.
12.Significant injury is then defined in s28LF. It is submitted that this section constitutes a “code” because of the way in which is addresses each relevant outcome under Division 4 and 5. Thus, for injuries other than a psychiatric injury, injury to a person is significant if –
a.The degree of impairment has been assessed by an approved medical practitioner as satisfying the threshold level unless a Medical Panel has made a determination as to the threshold level under Division 5; or
b.A certificate of assessment has been issued under s28LNA, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
c.A Medical Panel has determined that the degree of impairment satisfies the threshold level; or
d.The injury is loss of a foetus; or
e.The injury is psychological arising from the loss of a child due to an injury to the mother or the foetus or the child before during or immediately after the birth; or
f.The injury is loss of a breast.
13.The other relevant section under Division 2 of Part VBA, which is relevantly entitled Restriction on recovery of damages for non-economic loss, is s28LF(3), which provides that for the purposes of Part VBA, injury to a person is deemed to be significant injury if –
a.An agreement is given under Division 4 to waive the requirement for assessment in respect of the injury; or
b.The injury is deemed under section 28LZG(10) or 28LZGA(4) to be significant injury; or
c.The court makes a determination in respect of that person under section 28LZN.
14.It is submitted that this demonstrates that, save for those circumstances in 12(b) and (c) above, a claimant can only ever have a deemed ‘significant injury’ in circumstances where there is agreement to waive the requirement for assessment (“waiver”). If there is no relevant “waiver” agreement under Division 4 (the case here) (see below), then the next step is for a claimant to obtain a certificate of assessment. If there is dispute as to the assessment by a proper referral in the claim, to a Medical Panel, then it is that Medical Panel’s decision which is final and binding.
15.Accordingly, it is submitted that section 28LF(1)(a) applies to the present case, because a Medical Panel has made a determination as to the threshold level under Division 5, even though Mr Mangos has certified that the impairment satisfies the threshold level.
16.That s28LF is a code and is to be interpreted in this way, accords with the manner and way in which Divisions 4 and 5 operate, and it is submitted that this interpretation gives a consistent and harmonious operation to Part VBA, as discussed below.
DIVISIONS 4 AND 5 OF PART VBA
17.Division 4 is titled Procedure for claim for non-economic loss. The relevant sections set out the process for a claimant to either endeavor to procure agreement from a respondent to waive assessment, or alternatively, if such agreement is not waived, for service of a certificate on a respondent.
18.Accordingly, in this case, the plaintiff served on the Director, a certificate under s28LT of the Act. As there was no response within 60 days, then pursuant to s28LT(4) of the Act, the Director is deemed to have accepted the assessment.
19.It is submitted, that this would ordinarily result in the claimant satisfying s28LF(1)(a) of the Act, that is, a claimant would have come within the definition of s28LF(1)(a) of ‘significant injury’.
20.However, in the present case, a Medical Panel has made a determination.
21.This came to pass because the plaintiff has elected to add a further “respondent”, who has responded to Mr Mangos’ certificate of assessment. In turn, a Medical Panel has determined that the degree of impairment does not satisfy the threshold level. Hence, the plaintiff is now unable to rely upon any available definition of ‘significant injury’ under s28LF.
22.Reliance is first placed on the case of Summers v Director of Housing & Ors [2012] VSC 395 (‘Summers’), where Dixon J there observed that
Part VBA provides the mechanism for referring as a ‘medical question’ that assessment of impairment to a panel. A panel’s assessment prevails over a certificate from an approved medical practitioner.
23.Reliance is also placed upon the explanatory memorandum to the Wrongs and Limitation of Actions Acts (Insurance Reform) Bill, under Division Two, where it is stated
If a medical panel determines under Division 5 whether the degree of impairment satisfies the threshold level, the determination of the medical panel will apply to determine significant injury rather than the assessment of the approved medical practitioner.
24.Applying this to the present situation, it is submitted that a Medical Panel has assessed the plaintiff’s impairment, which means that that Medical Panel opinion prevails over Mr Mangos’ certificate of assessment.
EFFECT OF DETERMINATION AS TO THRESHOLD LEVEL
25.Reference is again made to section 28LZH(2) of the Act, which is set out above. Again, the last few words of that sub-section provide that ‘a determination that the injury is not significant injury for the purposes of this Part’.
26.It is submitted that of paramount importance is the purpose of Part VBA. It is submitted that that purpose, is to restrict claims for general damages to those who satisfy a threshold level of injury (namely, ‘significant injury’).
27.Section 28LZH reinforces the code set up by s28LF, within Part VBA of the Act, that once a Medical Panel determines that the degree of impairment does not satisfy the threshold level, then that must be accepted by a court in any proceeding on the claim.
28.It is submitted that the words “in any proceeding” are important, as distinct from the word “claim” (see Summers).
29.On the issue of the finality of Medical Panel opinions, reliance is placed on the case of Campbell v Adlard [2008] VSC 349, where Williams J (omitting irrelevant parts) refers to:
…the heavy burden cast on the medical panel by the fact of the relative finality of its decision under s28LZH of the Act…
Williams J then refers to the case of QBE Workers Compensation v Freisleben [1999] VSCA 207, which case speaks of inter alia, the finality of decisions of medical panels (albeit under the Accident Compensation Act).
30.It is submitted that a decision of a medical panel under the Act in the present case binds all parties and the court on the question of ‘significant injury’. This accords with the intention of the legislature, and would accord with the manner and way in which Medical Panels similarly bind questions or matters under the Accident Compensation Act.
31.To hold otherwise would lead to a result whereby different respondents, in respect of the same claimed injury, could be treated differently. This cannot have been the intention of the legislature.
SCHEME OF PART VBA
What is the intention or purpose of Part VBA
32.It is submitted that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Project Blue Sky Inc & Ors v Australia Broadcasting Authority [1998] HCA.)
33.A main purposes of the Wrongs and Limitations of Actions Acts (Insurance Reform) Act 2003 is
(i) to provide for thresholds in relation to the recovery of damages for non-economic loss
34.It is submitted that in aid of this purpose, that focus is on the medical threshold of injury. Put another way, that primacy is to be given to the notion of injury. Hence, it does not matter if there is one, two or many more respondents in any particular claim under Part VBA; the Part is concerned with an injury in the claim. This accords with Summers, and with Pagone J in Melbourne Health v Lloyd [2009] VSC 370 where his Honour held:
In other words, it is the medical panel’s determination of an injury that enlivens, and effectively defines, the entitlement to recover damages for non-economic loss. It is important, if not essential, that there be identity between the injury determined by the medical panel and that in respect of which a claim for non-economic loss is made.
35.That primacy is on the notion of injury is consistent with s28LL of the Act, which concerns assessments of injuries arising out of the same ‘incident’. Injuries arising from the one incident, must be included in the one assessment. This was again Dixon J’s approach in Summers.
36.Further, in Hynes v Hynes (2007) 15 VR 45, at 482, Ashley JA (for the court) observed that
In all, and despite a number of likely problems in its working out, the intended effect of Pt VBA is evidently that recovery of damages for non-economic loss is to be precluded in personal injuries claims except when an assessment of impairment at or above the threshold level is obtained, or some step is taken which is the functional equivalent of obtaining such an assessment – that is, unless the claim is one which is excluded from the application of the Part.
37.Next, it is acknowledged that the object of the Act and its very words is paramount when construing the Act, and that the words of the Minister cannot be substituted for the text of the Act.[1] However, reference is made to section 35 of the Interpretation of Legislation Act 1984 (Vic), which enables this Court to have regard to the relevant Second Reading speeches in the interpretation of the Act.
[1]See Re Bolton’ Ex parte Beane (1987) 162 CLR 514 at 518.
38.In the Second Reading Speech of the Wrongs and Limitations of Actions Acts (Insurance Reform) Bill, Mr Bracks on 21 May 2003 said
After careful consideration…the government has decided to implement a threshold for access to general damages – that is, damages for non-economic loss…the bill therefore provides that general damages are only recoverable where a claimant has suffered ‘significant injury’.
The reason for the restriction on the courts’ ability to award damages for non-economic loss is to restrict the cost to the community of claims for minor injuries…
39.It is submitted therefore that the Part is designed with a goal to restrict claims for non-economic loss to those who have suffered a threshold degree of impairment. Accordingly, if and when this question is decided by a Medical Panel under Division 5, it is the medical panel’s decision that is final and binding in respect of the ‘significant injury’ question. Again, the focus is on a claimant’s injury.
Function of Medical Panel
40.Another main purpose of the Wrongs and Limitations of Actions Acts (Insurance Reform) Act 2003 is
To amend the Accident Compensation Act 1985 in relation to the role of Medical Panels under the Wrongs Act 1958.
41.As mentioned above, this purpose is consistent with a Medical Panel being the final arbiter of a medical question for the purposes of Part VBA of the Act.
42.It is further submitted, that the Second Reading speech assists in comprehending the role of a Medical Panel under Division 5 of Part VBA of the Act:
The bill provides that the medical panels established under the Accident Compensation Act will provide independent determination for the courts and the parties of whether a claimant has suffered significant injury and therefore has access to general damages...
43.Mr Bracks further comments on the purpose behind s28LZH as follows:
S28LZH requires a court to accept a determination by a medical panel of a threshold level for the purpose of determining the threshold to the recovery of damages for non-economic loss. The reason for requiring a court to accept the medical panel’s determination and to prevent appeals on the merits from medical panel assessments and determinations is to streamline the procedure for determining the threshold for recovery of damages for non-economic loss and to ensure that the courts do not, over time, substitute non-medical criteria in place of the opinions of panels of medical experts on medical matters.
RESPONSE TO APPLICANT’S SUBMISSIONS
44.First, it is submitted that the plaintiff’s submissions concerning the fact that “the entitlement of the plaintiff’s cause of action against the first defendant had accrued…” is misconceived.
45.In Colquhoun, the Court of Appeal held that
The Panel is not deciding any question of legal right, nor is it determining any ‘issue’ as between the person who wishes to sue for noneconomic loss and the person against whom action is proposed. Nor does the Panel’s decision ‘extinguish rights’. The entitlement to sue is limited by the legislation. The right to sue for noneconomic loss has been taken away, by statute, from all persons other than those who have suffered significant injury (as defined).
46.Accordingly, it is submitted that a restriction on the recovery of general damages, as opposed to the accrual of a cause of action, is the relevant focus and object behind Part VBA.
47.Second, in terms of the Application of determination, and the notion that separate determinations of separate effect are contemplated by Part VBA, it is submitted:
a.That the word “determination” is only used in Part VBA, with respect to a Medical Panel decision, and it is submitted that the word “determination” is important when construing s28LF. The shorter Oxford Dictionary defines the word as including a bringing or coming to an end; or, judicial or authoritative decision or settlement; or the resolving of a question or maintaining of a thesis in a scholastic disputation; or the action of definitely ascertaining the position, nature, amount etc. This is consistent with the Part contemplating that if a Medical Panel gives an opinion on the degree of impairment, then that must stand as finally resolving the ‘significant injury’ question;
b.It is submitted that the terms of s28LF(1)(a) itself contemplates the situation such as the present, where there might be an accepted or deemed acceptance of a certificate, but another respondent refers the issue to a Medical Panel. To interpret otherwise would then leave the words unless a Medical Panel has made a determination as to the threshold level under Division 5 with no work to do. This is because if each respondent is to be treated separately, then the definition of ‘significant injury’ would include a certificate of assessment alone, which determines ‘significant injury’.
48.Finally, with respect to the plaintiff’s conclusion, it is submitted that the focus of the legislation (and in particular, Part VBA) is concerned with particular injuries. It is that issue (‘significant injury’) and not, for example, the number or respondents or third parties, to which primacy must be given. It is by virtue of the effect of the legislation rather than any “tactical injection” that the claimant is restricted in her claim for general damages.
49.It is submitted that on the plaintiff’s construction, that one can readily envisage the situation, whereby a first respondent refers the relevant question to a Medical Panel (which decision does not bind another respondent). If that Medical Panel opines that a claimant satisfies the threshold level, but a subsequent second respondent is served a certificate and refers the question to another Medical Panel, there is a real chance of conflicting opinions of two Medical Panels. This cannot have been the intention of the legislation and the purpose and/or object of Part VBA.
JURISDICTION TO MAKE DECLARATIONS IN SUMMONS
50.As a further or alternative position, it is submitted that there is no power under Part VBA to make the declarations sought in the Summons.
51.Division 6 of Part VBA of the Act sets out the provision of assessment information to the Court.
52.S28LZN is the only section in the Part which enables a claimant to apply to the court for a determination of significant injury for the purposes of Part VBA, in limited circumstances only.
53.In the present case, none of the circumstances set out in s28LZN apply to the claimant.
54.Reference is also made to the recent County Court case of Pickering v Killians Walk Owners Corporation No 12879 [2013] VCC 1206.
CONCLUSION
55.The plaintiff has failed to satisfy the definition of ‘significant injury’.
56.Alternatively, the claimant is unable to obtain the relief sought.
57.Accordingly, the summons ought be dismissed with costs.
SEPARATE TRIALS, ONE HEARING
55 In truth, the ultimate hearing will involve a number of separate trials, all being heard together for the sake of convenience, in accordance with the rules of joinder. It is possible that one or more of those trials will be settled.
WHAT ARE THE ISSUES TO BE DETERMINED AT TRIAL?
56 The rules of practice and procedure govern how claims are made and defended. Pleadings in this court ordinarily commence by writ or originating motion. In the present case, by writ with indorsed statement of claim.
57 Only issues raised by the parties in their pleadings are relevant to the trial of the action. In this case, the plaintiff has averred that the statutory requirements enabling her to claim non-economic loss damages from D1 have been met. No issue has been raised about the plaintiff’s right to recover non-economic loss damages from D1.
58 The facts in issue emerge from the pleadings.
59 “Fact in issue” is a matter to be determined as a matter of law and includes the elements of a cause of action or issues concerning facts relevant to facts in issue.[2]
[2]See Smith v R (2001) 206 CLR 650 and Murdoch v R [2013] VSCA 272 at [76] per Priest JA: [76]. The expression ‘fact in issue’, found in s 55(1) [of the Evidence Act 2008], is not defined in the Act. But it may safely be concluded that, in a criminal case, the ultimate issue will be the existence of one or more of the elements of an offence. Facts in issue in the proceeding will be those bearing on the existence of those elements, and behind those will potentially be many facts relevant to those facts in issue.[refers fn 43] In this case, the principal fact in issue on each charge was whether the sexual activity alleged had occurred at all. Hence to be relevant and admissible, evidence in the case needed to be capable of rationally affecting the assessment of whether the sexual activity alleged had occurred.
Rules:
60 13.02 Content of pleadings –
61 Rule 13.02 governs the content of pleadings:
“13.02(1) Every pleading shall –
(a)contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;
(b)where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on;
(c) state specifically any relief or remedy claimed.
13.02 (2) A party may by that party’s pleading –
(a) raise a point of law;
(b)plead a conclusion of law if the material facts supporting the conclusion are pleaded.”
62 If D1 intends to rely on the operation of statute to defeat the plaintiff’s claim for non-economic loss damages, Order 13.02(1) requires D1 to specifically plead that defence/plea in bar (sub-paragraph (b)), summarise the material facts upon which the defence is based (sub-paragraph (a)). The correspondence passing between the plaintiff’s solicitors and D1’s solicitors evinces an appreciation by D1 regarding the statutory defence it claims is available. However, pleadings are not constituted by correspondence. The failure to plead specific statutory defences generally results in the loss of the right to take the statutory defence – see for example Teague v Jones [1925] VLR 205 where the defendant sought to rely on a Certificate of Title tendered in evidence by the plaintiff that showed the land was subject to a mortgage. The plaintiff had failed to obtain the consent of the mortgagee, a requirement under s 157 Transfer of Land Act 1915. The defendant was not permitted to rely on the defence that consent of the mortgagee had not been obtained because that statutory defence had not been pleaded. It made no difference that the Plaintiff had tendered evidence that might have established the non-pleaded defence.
63 Order 13.02(2) permits D1 to raise a point of law in its pleadings. In this case D1 could have pleaded that the plaintiff’s claim is defeated because of the Panel’s determination. It has not done so.
64 Order 13.07(1) also requires a statutory defence to be specifically raised and clearly pleaded (See for example Lee v Irons [1958] VR 436). There is a long line of authority going back over 130 years supporting such a fundamental principle of pleading[3].
[3]See the authorities referred to in Lee v Irons at page 440
65 I further note that Order 13.12(3), which covers deemed admissions, requires specification of asserted facts if they are different from those alleged. A purpose of the rule is to identify facts in issue and to avoid ambush, surprise or embarrassment. Again, this fundamental principle of pleading was established more than a century ago (see for example Thorp v Holdsworth (1876) 3 Ch D 637).
66 Order 14.08 concerns the finality of pleadings. Generally, subject to leave being granted to extend time, pleadings are effectively closed 30 days after the service of the last pleading ordered.
67 Despite the rules of pleading, D1 has not identified any pleading filed on D1’s behalf that has put the plaintiff’s right to recover non-economic loss from D1 in issue. Nor has D1 identified any source of power that would permit D1 to take such a defence in the absence of appropriate pleadings, which now appear to be closed.
68 The fact that D1 has attempted to administratively file a copy of the Panel’s determination in a proceeding to which it was not a party may serve to notify of a potential evidentiary question, but it does not make the document admissible in the hands of D1. Nor does it give the document any particular legal status[4].
[4]Mere filing does not make the document admissible. Admissibility is determined in the ordinary way. Is the document relevant? If it is admissible, should a discretion be exercised to exclude it? Does the filing overcome the statutory prohibition on use provided in sec 28LZF? A preliminary issue regarding the document’s admissibility would need to be raised and ruled upon.
69 D1 submits that the Panel’s determination “trumps” D1’s deemed acceptance of the 28LN Certificate. However, as the pleadings currently stand, there is no admissible document before the court to “trump” D1’s deemed acceptance.
70 I find that no challenge is raised on the pleadings regarding the plaintiff’s right to recover non-economic loss damages from D1. The pleadings are now effectively closed.
Does the fact of joinder change the outcome?
71 D1 argues that because D2 has the benefit of the determination, D1 should also have the benefit of it since it refers to a common issue – whether the plaintiff has established the threshold of “significant injury”. D1 concedes that but for the joinder of D2, and the consequent determination, D1 would be bound by the deemed acceptance of the Section 28LN Certificate[5].
[5]See paragraphs 18 and 19 of D1’s submissions, exhibit 1
What is the effect of joinder?
72 D2 has been joined because the causes of action against D2 relate to the same incident, the same injury, the same premises and many facts are common, making it convenient for joinder to have occurred. However, although there are features common to the respective claims, they are not identical. Joinder does not result in the pooling of all issues between all parties. Each party has the right to make admissions or assertions of fact that are only relevant to specific parties or specific issues. Some pieces of evidence may be admissible only in respect of one defendant (e.g. admissions, evidence only relevant to an issue between the parties).
73 Order 9.02 provides:
“Two or more persons may be joined as plaintiffs or defendants in any proceeding –
(a) where –
(i)if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and
(ii)all rights to relief claimed in the proceeding (whether they are joint, several alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court, before or after the joinder, gives leave to do so.”
74 Factors to be weighed when considering joinder include:
1.Are the proceedings broadly of a similar nature?
2.Are there issues of fact and law common to each proceeding?
3.Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4.Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5.Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6.Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7.Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8.Is one proceeding further advanced in terms of preparation for trial than the others?
9.Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?[6]
10.What is the most efficient use of the resources of the parties and of the court?[7]
[6]See Humphris v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 paragraph [11] per Besanko, J
[7]See Carter v Commissioner of Taxation (2001) 109 FCR 215 at paragraph [23]
75 Although joinder may be permitted in certain circumstances, the rules also provide for severance:
76 Order 9.04 provides:
“Notwithstanding Rules 9.01 and 9.02, where any joinder of claims or parties may embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient, the court may order that –
(a)there be separate trials;
(b)any claim be excluded;
(c)any party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which that party has no interest;
(d)any person made a party cease to be a party on condition that that party be bound by the determination of the questions in the proceeding or without any such condition.”
77 The fact that parties have been joined to proceedings does not detract from the fact the separate trials are being heard together for the sake of convenience. Each cause of action as between each plaintiff and each defendant is to be determined in light of the facts in issue and the evidence relevant to that action and to those parties. Sometimes evidence will be cross-admissible, sometimes it will not. Matters concerning admissibility of evidence are usually determined by the Trial Judge. Facts in issue as between parties and causes are still determined by reference to the relevant pleadings.
78 That non-economic loss is in issue for one defendant, does not mean it is necessarily in issue for another. Similarly, if punitive damages were sought against one defendant, it does not mean that the issue arises against all, or that the evidence relevant to punitive damages is admissible for or against any other defendant[8]. Each party has the right to make admissions. Any such admissions are binding only for the party making the declaration against interest.
[8]For an example where different types of damages are sought against various defendants see Rubenstein v Truth [1960] VR 437 at 479
79 At trial in this case, the question of “significant injury” does not arise. It is not an element of any of the causes of action. As between the plaintiff and D1, D1 has admitted (by conduct and by operation of deemed acceptance provisions) that the plaintiff has a significant injury. As between the plaintiff and D2, the medical panel has made a binding determination which the plaintiff has accepted, that she does not meet the threshold. In neither case is “significant injury” a live issue even if proof of same were an element of any of the causes of action pursued.
80 Joinder is irrelevant to the determination of which facts are in issue. Common facts in issue may tell in favour of joinder, but joinder does not render facts that were not previously in issue into contest. Joinder is a mechanism to conveniently deal with separate trials in one hearing, not a mechanism to overcome pleading rules. If separate trials were ordered, that would not render cross-admissible evidence inadmissible any more than joinder could make inadmissible evidence admissible.
81 D1 has cited no authority to the effect that joinder pools all issues raised by all parties in all cases. If the fact of joinder was determinative of the question of whether the Panel’s determination is enlivened as an issue, then different results would flow depending on whether separate trials are held.
82 This case demonstrates how such an illogical principle would operate inconsistently and unfairly: D1 has admitted that but for the joinder of D2, D1’s use of the determination would not arise. D1 submits that the plaintiff made a forensic mistake to join D2 thereby assuming the risk that D2 would refer a question to the Medical Panel, which in turn might make a finding adverse to the plaintiff.[9]
[9]Transcript 48
83 If D2 were never joined, the issue does not arise:
· Claim made against respondent D1;
· Assessment that plaintiff has significant injury;
· Assessment served on respondent D1;
· No response by D1 within 60 days, deeming D1 to have accepted the assessment that plaintiff has a significant injury;
· Pleadings continue without any issue raised such as statutory bar defence to recovery of non-economic loss;
· Trial runs and plaintiff succeeds or fails on the merits without any reference to the jury about whether the plaintiff has significant injury. In all causes of action she need only prove duty of care, breach of that duty and consequent injury loss and damage.
84 If proceedings are taken separately against D2:
· Plaintiff can recover damages, but not for non-economic loss, since this is statute barred. The issue does not arise before the jury.
How can the fact of joinder rationally affect the issues between the parties?
85 It would be farcical if separate trials are subsequently ordered. That would make the Panel’s determination:
· First, irrelevant (not in issue) (D2 not yet joined);
· Second, relevant (in issue) (D2 is now joined); then
· Third, irrelevant (no longer in issue because plaintiff accepts she cannot recover such damages from D2); and/or
· Fourth, not relevant (not in issue) (separate trials ordered).
Should declaratory relief be given?
86 Order 23.05 confers a wide power to make declarations.
87 The first declaration sought concerns the deemed acceptance by D1 that the plaintiff has suffered significant injury for the purposes of the Act.
88 The plaintiff complied with the relevant provisions of Part VBA, and served the certificate of assessment. D1 acknowledges service and that it took no action within 60 days. So much is admitted in paragraphs 2, 3 and 18 of D1’s written submissions, exhibit 1.
89 D1 does not assert that there is any source of power to enlarge time to refer a question to the Medical Panel, nor does D1 seek leave to refer such a question to the Panel. D1 has not sought to withdraw it’s deemed acceptance of the assessment.
90 The plaintiff has averred the right to recover non-economic loss damages from D1. D1 has mounted no defence to that averment.
91 D1 has not sought to re-open its pleadings or to file any amended defence.
92 In all the circumstances no declaration is called for.
93 The second declaration seeks to prohibit D1 from relying on the Panel’s determination.
94 The Court does not give advisory opinions based upon hypothetical situations.
95 D1 has not pleaded any statutory defence or bar to the plaintiff recovering non-economic loss from D1. At the moment it does not appear to be a fact in issue. A declaration concerning a fact that is not in issue in this case serves no legitimate purpose. There has been much correspondence between the plaintiff and D1 about the use that can or cannot be made by D1 of the determination. It is not my place to comment on who is right or wrong on competing assertions contained in correspondence. Until such time as the issue is enlivened as between the plaintiff and D1 on the pleadings, or a preliminary ruling is sought and made on the question of the admissibility of the determination in the hands of D1, any observations made by me would be moot, premature and purely speculative. It is possible, for example that if D1 seeks leave to file an amended defence and raise a plea in bar/statutory defence, the plaintiff might contest such application alleging that the statutory time period allowed for such defence has expired, and/or that D1 should be estopped from raising such a defence and/or that principles of waiver apply.
Conclusions
96 The court declines to make the declarations sought.
97 The summons is dismissed.
98 I will hear the parties on the question of whether any procedural or other orders are sought.
ANNEXURE B
Potential Orders and Directions
The plaintiff's summons filed 16 August 2013 is dismissed.
By 4pm on 31 October 2013, the first defendant must file and serve a proposed amended defence raising the issue of whether the determination of the Medical Panel on 7 May 2013, upon the referral to it on 7 March 2013 of medical questions by the second defendant, is a bar to the plaintiff recovering damages for non-economic loss in the proceeding against the first defendant.
By 4pm on 7 November 2013, the plaintiff must notify the first defendant in writing whether it opposes the first defendant having leave to amend its defence to raise the issue of the effect of the determination of the Medical Panel, either in the form proposed by the first defendant or in such other form as the parties agree.
If the amendment to the first defendant's defence is not opposed, the Court will make orders "on the papers", upon application in writing to the Associate to Her Honour Judge Morrish.
In that event, the Court would also entertain an application by any of the parties for an order that a question in the proceeding be tried before the trial of the proceeding, namely, "whether the determination of the Medical Panel on 7 May 2013, upon the referral to it on 7 March 2013 of medical questions by the second defendant, is a bar to the plaintiff recovering damages for non-economic loss in the proceeding against the first defendant, or alternatively the second defendant". If such an application were made, the application would be heard by Her Honour Judge Morrish at a time convenient to the parties and the Court.
If the plaintiff opposes the proposed amendment, the first defendant would be required to make written application to the Court, pursuant to the liberty to apply reserved by this order, for an order permitting it to file and serve an amended defence to raise the issue of the effect of the determination of the Medical Panel. Such application would need to be supported by appropriate affidavit material filed by the first defendant. The application would be heard by Her Honour Judge Morrish at a time convenient to the parties and the Court arranged with the judge's associate.
Upon the hearing of such an application, the Court would need to be addressed upon the question of whether leave to amend should be refused if the Court were persuaded that the proposed defence had no real prospect of success at trial. Further, if such an application were made by the first defendant, the second defendant should consider whether the Court should determine at the same time as any application to amend by the first defendant, the preliminary question of "whether the determination of the Medical Panel on 17 May 2013, upon the referral to it on 7 March 2013 of medical questions by the second defendant, is a bar to the plaintiff recovering damages for non-economic loss in the proceeding against the first defendant".
The costs of the plaintiff's summons filed 16 August 2013 are reserved.
Reserve liberty to apply.
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