Koppula v The Royal Womens Hospital (Sandringham Hospital)
[2023] VSC 544
•12 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2022 00614
| ANIL KOPPULA | Plaintiff |
| v | |
| THE ROYAL WOMENS HOSPITAL (SANDRINGHAM HOSPITAL) | Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 September 2023 |
DATE OF JUDGMENT: | 12 September 2023 |
CASE MAY BE CITED AS: | Koppula v The Royal Womens Hospital (Sandringham Hospital) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 544 |
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PERSONAL INJURY – Application for summary dismissal – Where plaintiff seeks recovery of damages only for non-economic loss – Where Medical Panel determined plaintiff’s injury is not a ‘significant injury’ – Abuse of process – Civil Procedure Act 2010 (Vic) ss 62 and 63 – Wrongs Act 1958 (Vic) pt VBA.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Litigant in person | N/A |
| For the Defendant | Mr S Reid | Lander & Rogers |
HIS HONOUR:
Introduction
On 20 January 2018, Mr Anil Koppula, the plaintiff, and his pregnant wife were at the Royal Women’s Hospital (‘the Hospital’), the defendant. Mr Koppula’s wife that day had a healthy baby delivered by Caesarean section. Mr Koppula alleges that he was encouraged, or permitted, to observe the delivery, that in the course of doing so he saw his wife’s internal organs and blood, and that the experience caused the onset of a psychotic illness. He says that the Hospital breached a duty of care it owed to him and is liable to pay him damages. The Hospital admits that it owed to him a duty of care but denied that it breached it and does not accept that he suffered any injury. In his amended statement of claim dated 22 October 2022, Mr Koppula, who is self-represented, assessed his damages for psychological injury at $1 billion.
The Hospital has applied to have the proceeding summarily dismissed. It relies on the provisions of the Wrongs Act 1958 that preclude the recovery of damages for non-economic loss unless an injury is a ‘significant injury’ as defined in that legislation, and also on the Limitation of Actions Act 1958.
Mr Koppula’s amended statement of claim does not unambiguously limit his claim to a claim for non-economic loss. On 6 May 2022, there was a directions hearing. The Hospital raised, in open Court, the potential applicability of the Wrongs Act 1958 as a barrier to the recovery of any damages for non-pecuniary loss. The Judicial Registrar referred Mr Koppula to the Victorian Bar pro bono assistance scheme for advice in respect of pleading requirements, the contents of his statement of claim, and the operation of pt VBA of the Wrongs Act 1958. Mr Koppula received some advice from the pro bono assistance scheme in August 2022. No orthodox pleading or particularisation of any pecuniary damages emerged from this process.
Part VBA of the Wrongs Act 1958 applies to claims for the recovery of damages for non-economic loss.[1] It provides that a person is ‘not entitled to recover damages for non-economic loss ... caused by the fault of another person unless the person injured has suffered a significant injury’.[2] If a Medical Panel has made a determination under div 5 of pt VBA of the Wrongs Act 1958, then a psychiatric injury to a person is a ‘significant injury’ if a Medical Panel has determined that the ‘degree of impairment resulting from the injury satisfises the threshold level’.[3]
[1]Wrongs Act 1958 (Vic) s 28LC. The exceptions for workplace or transport accidents do not apply.
[2]Ibid s 28LE.
[3]Ibid s 28LF(2).
On 2 March 2023, the Hospital wrote to Mr Koppula, asserted that he had not provided any evidence of financial loss, and asked for discovery of, for example, tax documents. Mr Koppula responded by email the same day, the relevant part of which stated:
... I am writing to confirm that affidavit of special damages that is served reflect my statement of claim .... In nowhere of statement of claim I said I lost income or financial loss because of injury. See you later.[4]
[4]The actual email did not capitalise the ‘i’s.
The Hospital responded, still on 2 March 2023. It confirmed that Mr Koppula was not claiming damages for economic loss but observed that it appeared that he was still claiming the costs of ongoing psychiatric care, and asked for supporting documentation. There was no response to that communication. The next day, on 3 March 2023, there was another directions hearing in the proceeding. Mr Koppula probably indicated – his meaning is not absolutely clear - that he had already provided the documents that he wished to rely on. He was, nonetheless, directed to serve any amended particulars of special damages, loss of earnings and loss of earning capacity by 31 March 2023. On 4 May 2023, Mr Koppula served a document dated 30 April 2023 headed ‘affidavit of supplementary expert and report and final particulars of special damages.’ The document set out the effect that his illness has had on him, including how it led to the breakdown of his marriage, and attached various medical reports. The document did not articulate or quantify any claim for loss of earning capacity or for the cost of medical treatment or any other form of pecuniary loss.
On 16 May 2023, a Medical Panel, following an examination that took place on 11 April 2023, determined under div 5 of pt VBA of the Wrongs Act 1958 that ‘the degree of psychiatric impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.’
On 2 June 2023, there was another directions hearing. The significance of the Medical Panel’s decision was raised. Mr Koppula indicated that he disagreed with the Medical Panel’s conclusion. The Judicial Registrar informed Mr Koppula that there was ‘a window of time in which an application might be made for that determination to be reviewed’, and that the determination would ‘ordinarily be the thing that’s used to answer the question of whether you ... are able to claim damages for non-economic loss’. The Judicial Registrar made an order directed at Mr Koppula receiving some further advice from the Victorian Bar pro bono legal assistance scheme on ‘the Medical Panel determination’ and ‘its effect on [Mr Koppula’s] claim’.
The time by which an application to have the Medical Panel’s determination reviewed came and went with no application having been made by Mr Koppula. On 10 July 2023, the Hospital applied by summons for the summary dismissal of the proceeding.
The application came on for hearing before me on 11 September 2023. I specifically asked Mr Koppula whether he sought damages for, and only for, non-economic loss. He confirmed that this was the case.[5] He also confirmed, in answer to a query from me, that he had received advice from the Victorian Bar pro bono legal assistance scheme following the 2 June 2023 directions hearing. As noted above, that referral was for the purpose of his receiving advice on the effect the Medical Panel decision would have on his claims in this proceeding. It became apparent that the argument he wished to make at trial was that the Medical Panel’s assessment was wrong for various reasons.
[5]I asked him: ‘So just to put it down for you, you’re not saying you’ve lost wages or had to pay medical expenses, it’s for non-economic loss?’. He answered: ‘non-economic loss only, yes.’
The Medical Panel’s determination ‘must be accepted by a court in any proceeding … as a determination that the injury is not a significant injury’.[6] I am satisfied that Mr Koppula is not able to agitate the correctness of its decision in this proceeding. I am therefore satisfied that the legal effect of the Medical Panel’s determination is that Mr Koppula is simply unable, as a matter of law, to recover damages for non-economic loss. I am also satisfied that the time within which the determination may be reviewed has now passed. Mr Koppula has confirmed that he wishes only to claim damage for non-economic loss – a head of damages to which he has no legal entitlement. In those circumstances, the further prosecution of the claim is an abuse of process. The proceeding should be summarily dismissed, and I will make such an order.
[6] Wrongs Act 1958 (Vic) ss 28LZH(2) and 28LZO.
It is not necessary to consider the Hospital’s alternative arguments that the proceeding should be dismissed because it is it statute barred or that the pleadings should be struck out.
I will hear the parties on the question of costs.
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