Kingston v QBE Insurance Ltd
[2001] TASSC 83
•1 August 2001
[2001] TASSC 83
CITATION: Kingston v QBE Insurance Ltd & Anor [2001] TASSC 83
PARTIES: KINGSTON, Lindsay John
v
QBE INSURANCE LTD
STATE FIRE COMMISSION
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: FCA 21/2001
DELIVERED ON: 1 August
DELIVERED AT: Hobart
HEARING DATE: 23 July 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Procedure - Costs - Security for costs - Other matters - Consideration of factors relevant to an application for security for costs - Arguability of grounds of appeal.
Rules of the Supreme Court 2000 (Tas), r671.
Daley v Brooks & Ors B44/1992, applied.
Small v Burton; Re Insurance Associates Pty Ltd [1975] VR 776, referred to.
Aust Dig Procedure [672]
REPRESENTATION:
Counsel:
Appellant: Applicant in person
Respondent: A B Walker
Solicitors:
Appellant: Applicant in person
Respondent: Dobson Mitchell & Allport
Judgment Number: [2001] TASSC 83
Number of paragraphs: 11
Serial No 83/2001
File No FCA 21/2001
LINDSAY JOHN KINGSTON v QBE INSURANCE LTD
and STATE FIRE COMMISSION
REASONS FOR JUDGMENT COX CJ
1 August 2001
This is an application by the respondents to an appeal to the Full Court that the appellant give security for their costs of the appeal in the sum of $4,000.
The appellant instituted an action for damages for personal injuries against his employer, the second named respondent, in 1995. The action arose out of an injury by accident in the course of his employment on 31 March 1993. He claimed the injury was caused by reason of the negligence of the second named respondent by its servants or agents. The action was unsuccessful and it was dismissed on 27 October 1999 (unreported judgment 110/1999). He was ordered to pay costs which were taxed in the sum of $130,109.16. On 6 November 1998, he had been ordered to pay the costs of an interlocutory application in respect of that action and these were taxed at $6,102. He has not paid any of the sums ordered and was made bankrupt on 7 August 2000 on his own petition.
The present appeal arises out of workers compensation proceedings instituted by the appellant in respect of the same injury. On 17 February 2000, the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined the reference to it by the appellant. In it the Tribunal recorded:
"The worker was a station officer in the employ of the State Fire Commission. It is common ground that on 31 March 1993 the worker was participating in an high altitude exercise which involved him being lowered from a multi storey carpark building. In circumstances which are not relevant to this reference, the exercise went awry with the result that the worker suffered a fracture to his right leg. Following a lengthy recuperative period the worker resumed his employment in a non operational capacity. A claim for compensation made by the worker was accepted and compensation paid.
It is asserted by the worker that in September 1996 he became totally incapacitated for work as a result of a Post Traumatic Stress Disorder which he contends was related to his 1993 injury. The worker further contends that he subsequently delivered to the employer medical certificates indicating an ongoing incapacity for work because of his Post Traumatic Stress Disorder and a variety of accounts for the cost of medical and other services. The employer has not paid any compensation with respect to these certificates or accounts.
On 20 May 1999 the worker made reference to the Tribunal seeking determination upon his 'entitlement to weekly payments for periods covered by medical certificates between 13 September 1996 and 12 March 1998 received by the employer and medical expenses in respect to medical accounts received by the employer after 3 September 1996'. At a directions hearing I agreed to determine whether, as a preliminary matter, the worker has an entitlement to weekly payments of compensation upon his presentation of medical certificates in light of the decision of the Full Court in G L & V N Barber Pty Ltd v Ryan (1999) 8 Tas R 308.
Upon this preliminary matter, the worker told the Tribunal that during 1996 he was becoming easily emotionally distressed. He found that he was unable to concentrate, was lethargic, had interrupted sleep and was prone to nightmares. He also developed a fear of heights. In about September 1996 the worker consulted Dr John Saul, his general medical practitioner. On 13 September 1996 Dr Saul provided the worker with a medical certificate. That certificate states that the worker presented with Post Traumatic Stress and indicated the worker to be unfit for any work from 13/9/96 to 27/9/96. Subsequently, the worker made further visits to Dr Saul who continued to provide medical certificates indicating incapacity for work for varying periods, each because of Post Traumatic Stress Disorder."
The Tribunal took the view that the medical certificates did not require compliance with the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s35(1) which deals with service on the employer, although it found that they had been duly served, but determined that they were deficient because they were unclear and ambiguous and "thus did not satisfy s69(1) of the Act". That section provides that weekly payments of compensation are payable to a worker "where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board, signed by an accredited medical practitioner or an accredited person".
The Tribunal relied upon a decision of Underwood J in Muir v Dance (1997) 7 Tas R 1 for the proposition that a medical certificate for the purposes of s69 must be clear and free from ambiguity and cited from 5 - 6, where his Honour said:
"In the case of claimed entitlement to weekly payments, accord with the Act (as enacted when this claim was made) means:
· total or partial incapacity for work resulted from the injury in respect of which liability exists; and
· the existence of such incapacity is 'supported by a certificate ... from a medical practitioner'.
No form has been prescribed, so what are the essentials of such a certificate? It must be made by a medical practitioner. The Act defines medical practitioner and there is no dispute that the 'certificates' are 'from a medical practitioner'. With respect to certificates made to support discontinuance of weekly payments, it has been held that they must be clear and free from ambiguity. See Osmond v Kemp & Denning Ltd A44/1993; Gibsons Ltd v Jeffrey (1993) 2 Tas R 375; Hawkins v Mercury Walsh Ltd A22/1996. I see no reason why this fundamental proposition should not also be applied to a document claimed to be a certificate from a medical practitioner supporting the existence of incapacity for work. Whether or not the words of the certificate 'support' the existence of the facts necessary to establish entitlement to weekly payments, must be a question of fact in each case. It was not submitted that the two contentious certificates in this case were ambiguous or uncertain. They clearly state that there is total unfitness or incapacity for work during the relevant periods and in that sense, clearly support the existence of the claimed periods of incapacity."
It then considered the medical certificates provided by the accredited medical practitioner in this case. The Tribunal found as follows:
"An examination of the certificate dated 13 September 1996 indicates that:‑
•the certificate is upon the now obsolete Form 2 prescribed by Regulation 5 of the Workers Compensation Regulations 1998.
•a stamp upon the Form indicates Dr John Saul to be the certifying practitioner. A signature appears at the foot of the certificate
•the worker was examined on the 13 September 1996
•a provisional diagnosis was made of post 'post traumatic stress leave'
•the section of the form which makes provision for the worker's statement of the cause of his condition has been left blank but alongside that section there is written 'multiple related incidents precipitated by the accident on 31/3/93'
•the section of the form entitled, 'the injury or disease was stated to be caused by:' is completed with the words 'work related stress'
•the worker is unfit for any work from 13/9/96 to 27/9/96
•the portion of the form which provides for an indication whether the condition is consistent or inconsistent with the stated cause has been left blank"
The learned Commissioner constituting the Tribunal concluded:
"In this form, the certificate in my view creates a very significant ambiguity as to whether there does exist a relationship between the worker's post traumatic stress condition and that injury for which the employer has a liability to pay compensation. This being so, and given the clearly stated need for such certificates to be 'clear and free from ambiguity'', it is my view that the certificate of Dr Saul dated 13 September 1996 is deficient and does not satisfy the requirements for a certificate provided pursuant to Section 69(1).
Dr Saul's certificate of 13 September 1996 is the first of a total of ten certificates which are the subject of this preliminary hearing. However, all the subsequent certificates make reference to the first certificate and their own sufficiency is clearly dependent upon that first certificate being found sufficient for the purposes of Section 69(1). As I have found that the first certificate does not satisfy the requirements of a certificate provided for the purposes of that Section, it follows that a like finding should be made with respect to each of the subsequent certificates."
Notwithstanding that he found the certificates defective and did not of themselves entitle the appellant to payment of weekly compensation (the employer not having disputed the worker's entitlement pursuant to the provisions of ss81AA or 81A), the learned Commissioner adjourned the further hearing of the matter to enable the worker to prove the substantive issues as to his entitlement. The matter resumed in July 2000 and counsel for the second named respondent argued that because the medical certificates had been found by the Tribunal to be defective, there was no claim before the Tribunal and that it had no jurisdiction to make any determination of entitlement. The learned Commissioner rejected this contention and the employer and its insurer appealed on this point. The learned judge who heard the appeal upheld it on the basis that "jurisdiction exists for the purpose of determining whether or not there is a valid certification. If that certification is determined to be defective, then the issue is determined and the matter concluded." ([2001] TASSC 12 at par15.) The appellant was ordered to pay the costs of the appeal which were taxed at $2,205.22.
The appellant has filed a notice of appeal relying on two grounds. He is acting for himself and the notice of appeal is handwritten by him. The two grounds of appeal are:
"1That the learned trial judge erred in fact when he found that: paragraph 3 5/6: 'the employer neither paid compensation nor moneys due in respect of those accounts'.
2That the learned trial judge has erred in law in his judgment of Commissioner Chandler's decision."
As to ground 1, the learned primary judge did record at par3 of his reasons for judgment:
"The employer neither paid compensation nor moneys due in respect of those accounts, nor referred the matter in accordance with the Act, s81A."
In doing so he was relying on the Tribunal's findings of 17 February 2000 which included one that "the employer has not paid any compensation with respect to those certificates or accounts". As an appeal to the Supreme Court is confined to issues of law and the learned primary judge was not making findings but relying on factual findings made by the Tribunal, this is not a valid ground of appeal to the Full Court. The second ground of appeal claims an unidentified error of law and unless it is amended to identify such an error or errors, is doomed to failure.
Some of the considerations relevant to an application for security for costs are set out by Crawford J in Daley v Brooks & Ors B44/1992, upheld by the Full Court in A15/1993. At 3 of his Reasons for Judgment, Crawford J said:
"The Rules of Court, O76, r29 provides that security for the costs of an appeal shall not ordinarily be required, but the court or a judge may, in a proper case, order an appellant to give such security. I have no hesitation in concluding that this is a proper case for making such an order, for the following reasons:
1The appellant is impecunious. The respondents have no real prospect of recovering their costs of the trial which were ordered to be paid by the appellant, nor of recovering the costs from time to time ordered to be paid by the appellant throughout the appeal process which has occurred so far. Adding to those costs the costs of the appeal which are likely to be awarded against her if it fails, the total bill of the respondents will be very large and there is clearly a risk of considerable injustice to them if the appellant is permitted to proceed further with her case against them without providing security.
2A not insignificant sum by way of costs has been incurred by the respondents already because of the failure of the appellant or her legal advisers to manage and conduct her appeal in an orderly and efficient manner.
3It has in no way been suggested that the impecuniosity of the appellant has been brought about by the respondents, the court proceedings against them or the subject matter of those proceedings.
4No questions of law of any substance appear to be raised on the face of the grounds of the appeal. No element of public importance arises. The issues appear to relate to findings of fact made by the learned trial judge, some of which depended on the credit of witnesses, particularly Mr Heatley and the second respondent.
5Nothing was put before me to suggest that any particular ground of the appeal is likely to succeed. That is not to say of course that all are likely to fail.
6It is likely that further costs will be incurred unreasonably from the point of view of the respondents if the appellant persists with her desire to place fresh evidence before the Full Court. The grounds of appeal will need to be amended again."
The current Rule (r671) provides:
"671. Security for the costs of an appeal is not required unless the Court or a judge otherwise orders."
I do not regard this variation in expression as altering the relevant principles. In relation to this case, point 1 clearly applies. The applicant is impecunious and if his appeal fails, the respondents' chances of recovering further costs are remote. Nevertheless, the additional costs which are (realistically in my view) established at $4,000 are relatively small when compared to the outstanding costs of the common law action and the appeal from the Tribunal. Point 2 has no application in this case. As to point 3, the respondents argue that the cause of the appellant's impecuniosity is his failure in the common law action to establish negligence on the part of his employer rather than any specific action by them. He, however, contends that it can be related back to the injury he suffered while in the employ of the second named respondent and can at least be indirectly laid at its door. I think there is some force in what he says. Point 5 is apposite here because as matters now stand, neither ground of appeal can succeed, in my view. Point 6 has no application. Before dealing with point 4, I observe that in Small v Burton; Re Insurance Associates Pty Ltd [1975] VR 776, the Full Court held that ordinarily the court will regard the likelihood that the appellant will be unable to pay the respondent's costs of the appeal if the appeal fails as constituting special circumstances in which the appellant should be ordered to provide security for costs and that such an application must be made promptly by the respondent. However, the court should look at all the circumstances of each case and where an appeal involves points of law affecting a matter of public importance, the court will generally not order that the appellant provide security for costs, notwithstanding the impecuniosity of the appellant. The respondents cannot be criticised for any delay in lodging this application.
Having considered the materials before the learned primary judge, I have reached the conclusion that although not yet articulated, this appeal could involve points of law affecting a matter of public importance and in consequence I am reluctant to make orders which, in practical terms, will have the effect of preventing the appellant from agitating them. That he suffered a compensable injury in 1993 is not disputed and on the authority of G L & V N Barber Pty Ltd v Ryan (supra), a fresh claim for compensation in respect of that injury became available to him in 1996 when Dr Saul certified him incapacitated for work. His claim has been rejected by the ruling of the learned primary judge that this certificate was defective and insufficient to constitute a claim. That view proceeded from the premise that the learned Commissioner rightly characterised the certificate as defective for the purposes of s69.
Section 69 relevantly states:
"69 ¾ (1) Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person, the compensation payable to him under this Act is, " etc.
It seems to have been assumed by the Tribunal that the certificate needed to establish on its face a causal connection between the incapacity and an identified injury and that because the form the doctor partly filled in did not address that issue, it was defective and did not comply with s69. It is at least arguable, in my view, that s69 merely requires that a medical practitioner certifies that the worker is totally or partially incapacitated. There is not, to my knowledge at least, any form specifically "approved by the Board" and even if such form contained requirements for the certification of additional matters such as the nexus referred to by the learned Commissioner, it is arguable that such requirements are ultra vires. The learned Commissioner expressed the view that s35 had no application to the present case because of some observations of mine in G L & V N Barber Pty Ltd v Ryan (supra) with respect to s32 (the requirement of notice of the injury and the making of "a claim" for compensation within six months of the injury). He seems to have taken the view that the Act, Pt IV, which includes ss32, 34 and 35, had no application to fresh claims such as the one made by the appellant. With respect, that may not be the case. Although I remain of the view that s32 has no application to a fresh or subsequent claim if the initial claim has met its requirements, it is arguable that ss34 and 35 do apply. Section 34 provides:
"34 ¾ (1) A claim for compensation shall ¾
(a) be in a form approved by the Board;
(b)be accompanied by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person; and
(c) be given to ¾
(i)the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or
(ii) a person designated for the purpose by the employer.
(2) …
(3) A defect, omission, or irregularity in a claim for compensation or a medical certificate under subsection (1)(b) shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission, or irregularity relates to information which is not within the knowledge of, or reasonably ascertainable by, the employer or his licensed insurer."
Once again, I am unaware of any form being approved by the Board for the purposes of s34(1)(a) or (b), but the Governor-in-Council has by regulation made under s162 specified such forms and such a form appears to have been used by Dr Saul, though it was only partially filled in. It is at least arguable that s34 does apply to a claim such as the appellant's, that the certificate of incapacity the doctor gave, though inadequate for the purposes of s34, was nonetheless adequate for the purposes of s69 and that the defect, omission or irregularity in the claim made by the appellant might yet be excused by s34(3). That issue, however, was never addressed by the Tribunal because the learned primary judge held it had no jurisdiction.
The appellant has an understandable sense of grievance at the events which have occurred. As he said in his submission to me, it is not his fault that the medical practitioner failed to fill in completely what was thought to be the appropriate form. If the learned Commissioner was wrong in his characterisation of the form as defective for the purposes of s69, the appellant acquired no right to appeal that error because the Commissioner's decision did not reject his claim, but merely adjourned it so that the appellant could prove the nexus between his incapacity and the initial injury and thereby establish the respondents' liability. That adjourned hearing never eventuated because the respondents appealed successfully. True the appellant could have defended the appeal to the learned primary judge by arguing that point and it appears that his counsel did not do so but confined the argument to the consequences of a finding that the certificate was defective. Nevertheless, the appellant has been denied the opportunity to establish his right to compensation on a view of the Act which is arguably wrong.
In my view, it would be unjust to make the order sought without leaving this unrepresented appellant with an opportunity to seek to agitate this issue. I will adjourn the further hearing of this application for a period of not less than one month when it can be relisted at the suit of either party. If no application to amend the grounds of appeal is made within that time, I think the orders sought would be appropriate notwithstanding my reservations in respect of points 1 and 3 mentioned in Daley v Brooks & Ors (supra). However, if the appellant can formulate a clearly arguable ground of appeal asserting error in law, I would be disposed to grant him leave to amend his grounds and to give him the opportunity of arguing them before the Full Court notwithstanding his impecuniosity. I express the hope that the Legal Aid Commission of Tasmania or some practitioner acting pro bono will assist the appellant in considering whether, and if so, in what form, his grounds of appeal should be sought to be amended The application is adjourned sine die.