Kaur v Victorian WorkCover Authority (Ruling)
[2022] VCC 252
•16 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02323
| DAVINDER KAUR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 7 March 2022 | |
DATE OF RULING: | 16 March 2022 | |
CASE MAY BE CITED AS: | Kaur v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 252 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Serious injury – Medical Panel – amendment to include claim based on psychiatric injury – prejudice – fair trial – amendment of originating motion
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; Ultra Thoroughbred Racing Pty Ltd (ACN 103 106 207) Trading as Baree Stud v Those Certain Underwriters at Lloyds London & Ors [2011] VSC 370; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Baumgartner v Victorian WorkCover Authority & County Court of Victoria [2022] VSCA 21; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179
Ruling: Leave granted to the plaintiff pursuant to Rule 36.01 to amend the Originating Motion
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Clarke | Zaparas Lawyers |
| For the Defendant | Ms F Spencer | Russell Kennedy |
HIS HONOUR:
Background
1This is an application by the plaintiff, Ms Davinder Kaur, to amend the originating motion proceeding before the Court in which she seeks a “serious injury”. The amendment sought is to include a claim pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for “serious injury” based on a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
2The serious injury application as it currently stands relies on a claimed “serious injury” on the basis of “permanent serious impairment or loss of a body function”, such injury broadly being injury to the lumbar spine.
3To understand why the application to amend is made requires an understanding of the procedural history of the plaintiff’s “serious injury” application, none of which is in dispute.
4In a nutshell, the application to amend arises because of an opinion of a Medical Panel that the plaintiff has no physical injury to the lumbar spine but has a consequential psychologically based chronic pain syndrome.
5Briefly by way of background, the plaintiff was born in September 1988. In 2009 she migrated to Australia. In December 2015, she commenced employment with Ringwood Area Lions Aged Care Incorporated (“the employer”) as a personal care attendant.
6The plaintiff claims that in the course of her employment with the employer on 12 May 2017, she was required to lift a resident at an aged care facility and suffered injury to her lumbar spine (“the incident”).
7The plaintiff lodged a WorkCover claim for compensation in respect of the incident. The claim for compensation was accepted by the relevant WorkCover Agent on behalf of the employer, following which payment of statutory benefits were commenced.
8In late December 2019, the plaintiff made a serious injury application pursuant to s328 of the Act. Her application relied upon a physical injury described as “aggravation of degenerative changes in the lumbar spine at L4/5 and L5/S1”. Her application specifically excluded a claim based on any psychiatric injury.
9The plaintiff’s serious injury application was rejected by the defendant, on behalf of the employer, on or about 11 May 2020. The plaintiff issued an originating motion on or about 26 May 2020, seeking a determination of “serious injury” in respect to injuries to the spine.
10On 20 July 2020, the plaintiff provided particulars of injury relying upon the lumbar spine injury but also identifying a claim for psychiatric injury described as “anxiety and depression”.
11On 21 July 2020, the defendant gave notice of intention to refer medical questions to a Medical Panel under s 274 of the Act as part of the “serious injury” process.
12On 15 April 2021, Judge Wischusen referred medical questions to a Medical Panel, together with relevant documentation. The questions had been agreed between the parties. The referral documentation included a statement provided by the parties pursuant to s304 of the Act, together with submissions filed respectively by the plaintiff and the defendant.
13The s304 statement commenced by setting out that the medical questions related to “injury to the lumbar spine including but not limited to aggravation of degenerative changes in the lumbar spine at L4/5 and L5/S1 and chronic pain syndrome”.
14The plaintiff’s written submissions to the Panel addressed the claimed physical injury to the lumbar spine. There was no suggestion by her in those submissions that she had suffered anything other than a physical injury to the spine. In the oral argument before the Court, her counsel informed the Court that her legal representatives had advised her to proceed with the claim based on physical injury only.
15The defendant’s written submissions to the Panel specifically noted that “the only claimed injury in this referral is an injury of the lumbar spine”. It submitted that the plaintiff had likely sustained a soft tissue/strain type injury to the lumbar spine in the incident which has resolved or, to the extent that it persists, is mild. Further, the defendant submitted to the Panel that:
“… while the medical information suggests that the plaintiff also developed a psychological/functional overlay reaction … there is no claimed psychiatric injury and the psychological/psychiatric consequences of her lumbar spine injury must be disregarded for the purposes of assessing her work capacity”.
16Finally, in its written submission to the Panel, the defendant said that:
“the weight of the medical evidence before the Panel is that the plaintiff has developed a psychological reaction to her condition … which now dominates her clinical presentation.”
17By Certificate of Opinion dated 30 August 2021, a Medical Panel answered the medical questions put to it, as follows:
“Question 1. What is the nature of the medical condition (if any) of the plaintiff’s lumbar spine?
Answer: No physical (organic) medical condition of the lumbar spine.
The Panel is of the opinion that the plaintiff suffered a minor lumbar strain injury on 12 May 2017 however the lumbar strain injury is now fully resolved. The plaintiff is currently not suffering from any physical medical condition of the lumbar spine, but rather, from a chronic pain syndrome arising entirely from the psychological and/or psychiatric consequences of a now resolved minor back strain.
Question 2. Does any medical condition found by the Medical Panel in answer to question 1 result from, or is it materially contributed to by, the injury to the plaintiff’s lumbar spine sustained on 12 May 2017?
Answer: The nonphysical chronic pain syndrome arising entirely from the psychological and/or psychiatric consequences of a now resolved minor back strain, results from and is materially contributed to by, the injury to the plaintiff’s lumbar spine sustained on 12 May 2017.
Question 3. Was the plaintiff’s employment with Ringwood Lionsbrae between on or about 4 December 2015 and 11 May 2017 a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease of the plaintiff’s lumbar spine?
Answer: The Panel is of the opinion, the plaintiff’s employment with Ringwood Lionsbrae between on or about 4 December 2015 and 11 May 2017 was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease of the plaintiff’s lumbar spine, in any way.
Question 4. If yes to any part of question 3, does any medical condition of the plaintiff’s lumbar spine found by the Medical Panel in answer to question 1 result from, or is it materially contributed to by, the injury to the plaintiff’s lumbar spine sustained over the course of her employment between approximately 4 December 2015 and 11 May 2017?
Answer: Not applicable. The physical injury incurred on 12 May 2017 is now fully resolved.”
18There is no dispute that the Panel Opinion must be adopted and applied by the Court, or that the Opinion must be accepted as final and conclusive by the Court.[1] It will be immediately clear that, when that Opinion is applied, the plaintiff’s claim for serious injury as currently framed must fail, which the plaintiff accepts.
[1] s 313 (4) of the Act
19It is against that background that the plaintiff makes this application to amend her serious injury application.
Plaintiff’s submissions
20That plaintiff submitted, via her counsel Mr Clarke, that in circumstances whereby the Panel concluded that she has an ongoing work-related injury, albeit a psychiatric condition and not a physical injury, it is in the interests of justice to allow her to rely on a claimed psychiatric condition. The result of not allowing her to amend is that she is shut out of pursuing a claim for a compensable injury as identified by the Medical Panel. That would be a perverse result in the context of a gateway provision.
21Pausing here, the Court had anticipated (based on the plaintiff’s written submissions filed in advance of the oral argument) that there may be argument about the power to amend the serious injury/originating motion, but no such argument arose. The parties agree that there is a power to amend.
22Next, the plaintiff submitted that there was no real prejudice to the defendant, as it would still be able to fairly defend any “serious injury” application based on a psychiatric injury.
23In short, the plaintiff submitted that the dictates of justice were such that the amendment should be allowed.
Defendant’s submissions
24The defendant submitted, via its counsel Ms Spencer, that on the peculiar facts of this proceeding – namely after a referral to a Medical Panel - the discretion to amend should not be exercised. It had made careful submissions to the Medical Panel in response to how the plaintiff had framed her “serious injury” application. It was now too late in the process to allow the amendment and significant weight should be attached to the real prejudice to the defendant that would occur if the amendment was allowed, a prejudice that could not cured by an award of costs.
25The defendant expanded the grounds upon which it resisted the application to amend. It submitted that the plaintiff had made a serious injury application and had elected to rely on a physical injury for the purposes of that application. The Medical Panel had determined that issue. That distinguished this application from other examples whereby amendment of a serious injury application/originating motion had been allowed. Counsel for the defendant, with force, described the current scenario as akin to the plaintiff seeking immediately before judgment to adjourn, amend and recast how a claim was put. This, it was submitted, would “lessen public confidence in the system”,[2] a relevant consideration that I will discuss in due course.
[2] Day 2, Transcript (“T”) 29, Line (“L”) 26
26In short, when all relevant factors were weighed, on the facts of this application the defendant said it was not in the dictates of justice to allow amendment at this stage of the proceeding.
Legal principles
27As previously mentioned, the parties agreed that the Court has the power to amend the serious injury application/originating motion to allow a claim for “serious injury” based on the psychiatric injury.
28The narrow issue in dispute is whether, at this stage of the proceeding, the discretion should be exercised in favour of the plaintiff.
29Counsel each referred the Court to the judgment and principles set out in Aon Risk Services Australia Ltd v Australian National University (“Aon”).[3] The principles in Aon are well known and can be distilled down to the proposition that amendment is not allowed as a matter of course. There are a range of considerations that a court will need to weigh in the balance in the exercise of the discretion to allow amendment. All matters relevant to the exercise of the discretion to allow an amendment should be weighed.
[3][2009] HCA 27 (5 August 2019)
30The plaintiff also referred to the ruling of J Forrest J in Ultra Thoroughbred Racing Pty Ltd (ACN 103 106 207) Trading as Baree Stud v Those Certain Underwriters at Lloyds London & Ors.[4] As J Forrest J said in Ultra Thoroughbred Racing, as Aon demonstrates, there are several factors relevant to an application to amend including –
(a) whether there will be a substantial delay caused by the amendment;
(b) the extent of any wasted costs;
(c) whether there is an irreparable element of unfair prejudice caused by the amendment;
(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;
(e) whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
[4][2011] VSC 370
31But, as J Forrest J said:
“It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party.”[5]
[5]Ultra Thoroughbred Racing at paragraph 9
32Rule 36.01(1) of the County Court (General Civil Procedure) Rules 2018 provides that:
“For the purpose of –
(a) determining the real question in controversy between the parties to any proceeding …
the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.”
33The discretion provided by Rule 36.01(1) is wide, but must, of course, be exercised by weighing the relevant factors I have already referred to, to determine what the interests of justice dictate. That much is not in dispute.
34The parties agree that the factual scenario before the Court is unique. Neither party could point to any previous example where amendment had been sought to include an injury found by a Medical Panel to be compensable, but not the subject of the initial “serious injury” application.
35It is relevant that the role and function of the Medical Panel was to form and give its own opinion on the medical questions referred to it for its opinion.[6]
[6]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
36Recently, in Baumgartner v Victorian WorkCover Authority & County Court of Victoria[7] the Court of Appeal said of a referral to a Medical Panel –
“There is no doubt that the medical panel regime marks a significant departure from some conventional aspects of the trial process. It enables a party to choose how a medical question, broadly defined, will be determined and involves a process of adjudication or determination by a panel of experts outside of the court, with the outcome binding in the judicial determination of the action.”[8]
[7][2022] VSCA 21
[8] Paragraph 67
37The defendant, in effect, relied on this significant departure from the conventional trial process as a reason why the amendment should not be allowed. The idea of Medical Panels was to provide for a process to resolve medical questions. To allow an amendment at this stage would be contrary to the intention that the Panel would determine the medical questions as framed by the parties. Further, the defendant also submitted that there would now be a substantial delay as the parties would need to start the “serious injury” process again by obtaining medical opinion directed to the claimed psychiatric injury. The Panel Opinion is not binding for an amended “serious injury” application – as it had not been asked a medical question about a psychiatric injury – but would inevitably find its way into evidence and that risks considerable delay and confusion, such that it was not fair to the defendant to allow the amendment.
Analysis
38The exercise of the discretion to amend involves weighing various considerations to determine whether the dictates of justice are such that the amendment should be allowed.
39In approaching the task at hand, I am mindful of the Civil Procedure Act 2010 and the overarching purpose set out in s7 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
40In this proceeding, the real issue in dispute is whether the plaintiff has a “serious injury” to satisfy a gateway provision to be entitled to the leave of the Court to bring a proceeding for damages.
41It is relevant, in my opinion, that I am dealing with the gateway stage of the proceeding. It is not a situation such as the scenario in Aon or Ultra Thoroughbred Racing where a party at a late stage sought to recast or reinvent how a substantive claim was put.
42Having considered the Panel Opinion, the plaintiff now seeks to amend the path that she wishes to take to try and access a gateway provision. True it is that until the Panel Opinion, she had chosen to confine herself to the physical injury gateway. But, in my view, that is a much different scenario to seeking to amend a substantive cause of action, where the parties have most likely engaged in a lengthy pre-trial process for a determination of substantive rights.
43Further, the current scenario is much different to seeking a different path immediately before a Court is to pronounce judgment. A Medical Panel Opinion is final and conclusive to determine the medical questions referred to it. But the adoption and application of an Opinion does not necessarily determine the proceeding. It is not uncommon that aspects of a “serious injury” application remain to be determined by the Court. A simple example is a Panel Opinion directed to work capacity does not determine an issue as to whether an injury produces a “very considerable” pain and suffering consequence.
44I also disagree with the defendant’s submission that this application to amend is now made at a stage of the proceeding that is analogous to the Court about to pronounce the ruling or make an order and the plaintiff saying, “hang on, hang on, I want to change”.[9] The current stage is the adoption and application of the Panel Opinion to the Medical Questions asked of it, that may, or may not, have the practical effect of resolving the proceeding. In fact, the Panel provided the Opinion on 30 August 2021. Obviously, the parties have spent time considering the practical consequences of the Opinion. The Court has not sought to pronounce a judgment or to make a ruling. If in fact it was made at a stage immediately before orders or a ruling was pronounced then, in my view, that would be an abuse of process and would lessen public confidence in the justice system, but here, we are not at that stage.
[9] T30, L13-17
45Indeed, on one view, leaving aside the final and conclusive nature of the Panel Opinion, the scenario before the Court is no different to the plaintiff obtaining a further medical opinion and then reconsidering how her “serious injury” application is framed for the purposes of the gateway provision.
46Next, I consider it relevant that to disallow the amendment will preclude the plaintiff from pursuing a potential common law claim, in circumstances where the Medical Panel found an injury related to her work with the employer but to have a psychiatric basis to it and not an organic basis.
47Next, the Panel Opinion is binding only for the question of injury to the lumbar spine. Self-evidently, the Panel was not asked to consider a medical condition of the plaintiff’s mind and so to that extent the Panel Opinion is not binding. Ultimately, it is a medical opinion that must be applied by the Court to answer questions put to the Panel and is no more than that.
48There is nothing in the Panel opinion that prevents the defendant from resisting the plaintiff’s claim for serious injury by reason of the psychiatric condition. It can obtain its own medical evidence. It can refer different medical questions to a Medical Panel. It can test whether any claimed psychiatric condition is related to employment with the employer or is “severe”. These are the usual issues that arise in a “serious injury” application and are issues that the defendant can still meet. It can have a fair trial of the issues in dispute, which of course have now been narrowed by the Opinion.
49Further, on one view, the defendant received from the Panel the opinion that it asked for, namely that the plaintiff has psychiatrically based pain syndrome, which is compensable. In that regard, it cannot be said to be taken by surprise.
50Pausing again, if the plaintiff had achieved “serious injury” for the lumbar spine condition, then she would have been entitled to bring a claim for damages for the totality of injury suffered by her in the compensable circumstances,[10] including the psychiatric consequences. In my view, it does not result in a harmonious scheme if a worker is found to have a compensable work-related injury but is shut out from relying on that injury for the purposes of a gateway provision, simply because she had, perhaps erroneously, relied on a different injury to the one diagnosed by the Medical Panel.
[10]Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179
51I accept that, by reason of allowing the amendment, there will be a prejudice to the defendant by way of a delay and inevitable expense. However, in my opinion, that can be ameliorated through an award of costs.
52In weighing all the relevant competing factors, I conclude that to prevent the plaintiff from pursuing a claim for “serious injury” based on an otherwise (at least as far as a Medical Panel was concerned) compensable psychiatric condition is not in the dictates of justice.
53Therefore, for the reasons given, I am prepared to allow the amendment sought on behalf of the plaintiff.
54I shall hear from the parties as to the appropriate form of orders and consequential costs orders.
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