Lewis v Brines Pty Ltd (in liq) and Anor (Ruling)

[2014] VCC 590

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-03607

MARK LEWIS	Plaintiff
v
BRINES PTY LTD (in liquidation)	First Defendant
and
WORKSAFE VICTORIA PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2013; 14 and 15 April 2014
DATE OF RULING:	13 May 2014
CASE MAY BE CITED AS:	Lewis v Brines Pty Ltd (in liq) & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2014] VCC 590

RULING
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – application by plaintiff to re-open case after completion of hearing and final addresses.

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; Petkovski v Galletti [1994] 1 VR 436

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Nowicki Carbone
For the Defendants	Mr B McKenzie	IDP Lawyers

HIS HONOUR:

1       The hearing of the plaintiff’s serious injury application commenced on 26 November 2013.  He sought leave to bring a claim for damages in respect of a shoulder injury suffered by him in the course of his employment in 2009.

2       During the opening address of counsel for the plaintiff, it was stated that the plaintiff would say that his current treating surgeon, Mr Carr, had told him that he would require, at some time in the future, surgery in the form of a shoulder replacement.  At the time, no medical report had been obtained from Mr Carr to that effect.  Discussion occurred as to the admissibility of such hearsay evidence.

3       On any view, the foreshadowed evidence concerning future surgery was important and might well have been decisive on the question of whether the plaintiff’s injury was a “serious injury” as that term is defined in the Accident Compensation Act (“the Act”).

4       Having obtained instructions, counsel applied for an adjournment of the hearing so that a report could be obtained from Mr Carr.  The adjournment application was opposed by the defendants.  They could demonstrate no prejudice other than as to costs.  I ordered that the matter be adjourned, part heard, until 14 April 2014.  I further ordered that the plaintiff pay the defendants’ costs thrown away by reason of the adjournment.

5       Prior to the completion of submissions concerning the adjournment application, I requested counsel for the defendants to outline the defendants’ case relating to the serious injury application.  He outlined the various issues he considered were involved.

6       It was clear from my discussions with both counsel that:

(a)   The plaintiff had suffered previous problems with his shoulder;

(b)   Insofar as his shoulder condition had been aggravated in the course of his employment with the first defendant, the principles enunciated in Petkovski v Galletti[1] would be relevant;

[1][1994] 1 VR 436

(c)   The defendants did not accept the plaintiff’s affidavit evidence that he had had no problems with his shoulder since 1998.  It was the defendants’ contention that the plaintiff had experienced significant problems with his shoulder over the years prior to the 2009 workplace incident;

(d)   In particular, it was made clear that the Court would need to make a comparison of the plaintiff’s shoulder condition before and after his workplace incident in order to establish whether the degree or extent of such aggravation amounted to a serious injury.[2]

[2]See Transcript of 26 November, pages 4, 12, 14, 16, and 18

7       In due course the matter came back before me on 14 April 2014 for the resumption of the hearing.  By this time a report had been obtained from Mr Carr and served on the defendants.

8       In addition, the plaintiff tendered a letter from a physiotherapy practice at which he had attended on occasions before his workplace injury.  That letter stated that patient records, including those of the plaintiff, had been lost when the practice premises were flooded some years before.

9       The letter from the physiotherapy practice was relied upon by counsel for the plaintiff to explain why there was no evidence from his treating physiotherapist relating to treatment prior to the workplace accident.

10      The plaintiff tendered a report from his general practitioner as at May 2009, wherein the doctor reported that he had seen the plaintiff on the day of the workplace incident, that the plaintiff had given him a history of five to six previous shoulder dislocations and that he had observed the shoulder was wasted in appearance.

11      During cross-examination, the plaintiff admitted that he had been treated by general practitioners at a medical practice in Hampton from soon after his birth until about 2008 (the year immediately prior to the workplace incident).  He identified a Dr Appleby from that practice.  No evidence was tendered from that Hampton practice.  No explanation was provided for the absence of evidence as to the plaintiff’s shoulder condition over the years prior to 2009.  In submissions, counsel for the defendants invited me to draw an inference that evidence from the Hampton practice would not have advanced the plaintiff’s case.[3]

[3]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916

12      The hearing was completed, with closing addresses from counsel, on 15 April 2014.  I reserved my decision.

13      On 24 April 2014, the plaintiff’s solicitors advised the Court that the plaintiff wished to seek leave to re-open his case so as to tender clinical notes from the medical practice in Hampton.  The solicitors for the defendants advised the Court that the application to re-open was opposed.  I directed the parties to file written submissions relating to the application.  Both parties did so.

14      A short affidavit sworn by Nardine Hanna, a solicitor for the plaintiff, was filed in support of his application.

15      In summary, the plaintiff submits that leave should be given because of the following matters:

(a)   The plaintiff’s solicitors only became aware of the identity of the medical clinic in Hampton (the Bayside Clinic) when the plaintiff was giving evidence on 14 April 2014;

(b)There was no opportunity to locate and peruse the records of that clinic before the hearing concluded on 15 April 2014;

(c)The solicitors had no knowledge that the clinic records relating to the plaintiff were still in existence;

(d)Those records were obtained by the solicitors on 22 April 2014 and were served on the defendants’ solicitors on 24 April 2014;

(e)The records are essential to the just determination of the proceeding;

(f)There is no prejudice to the defendants in allowing the plaintiff to re-open his case.

16      At no time during the hearing did the plaintiff seek an adjournment so as to provide an opportunity to identify and/or contact the Hampton practice, or to establish whether its records concerning the plaintiff were available to be tendered in evidence.

17      The defendants oppose the application to re-open.  They rely on the principles enunciated in Spotlight Pty Ltd v NCON Australia Ltd.[4]There, the Court of Appeal said:

“There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened.  The need for finality in litigation is one.  It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages.  Were applications to reopen to be allowed almost as of course, such applications would be regularly made.  That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined.  The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.”[5]

[4][2012] VSCA 232

[5](supra) at [17]

18      At first instance in Spotlight, Kenny J had set out four classes of cases in which a Court may grant leave to re-open.  The four classes were:

(i)    Where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

(ii)   Where there has been an inadvertent error;

(iii)   Where there has been a mistaken apprehension of the facts; and

(iv)   Where there has been a mistaken apprehension of the law.[6]

[6](supra) at [25]

19      The Court of Appeal agreed with her Honour with regard to those classes, whilst adding that the classes were not closed.[7]

[7](supra) at [26]

20      Counsel for the defendants submits that the plaintiff’s application fits into none of those classes.  I agree.

21      The plaintiff’s legal advisors would have known that in an aggravation case, the Court was required to make a comparison of the plaintiff’s before and after condition in order to determine whether or not the aggravation amounted to a serious injury.  That requirement upon the Court dates back to Petkovski, a 1994 decision.  There is nothing new about the proposition.  If the plaintiff’s counsel or solicitor had been in any doubt concerning this, such doubt would have been removed completely by the statements made by counsel for the defendants in Court on 26 November 2013.  The issue became even more stark during cross-examination of the plaintiff on 14 April 2014 when his evidence concerning the Hampton practice and Dr Appleby was given.

22      By taking steps to obtain a letter from the plaintiff’s former treating physiotherapist in time for the hearing in April 2014, his legal advisors demonstrated knowledge of the importance of explaining the absence of such evidence.

23      Although an affidavit was sworn by a solicitor for the plaintiff, no explanation was provided as to why steps were not taken to enquire of the plaintiff prior to the hearing as to the identity of any treating general practitioners prior to 2009.

24      Further, even when, on 14 April 2014, the plaintiff gave evidence of earlier treatment at the Hampton Clinic, no application was then made to stand the matter down to establish the identity of the clinic and the availability of the plaintiff’s records.  No application was made on 15 April 2014 notwithstanding the evidence of Ms Hanna of the plaintiff’s solicitors that she had spoken with a general practitioner at the clinic on that date.  The Court was not advised of such conversation or any intention to attempt to obtain the plaintiff’s records.

25      It was not until some time after the hearing that further attempts were made to obtain the records.  Even then, they were not served on the defendants’ solicitors for two days after their receipt from the clinic.

26      It is difficult to avoid the conclusion that the plaintiff’s legal advisors made strategic decisions:

(a)not to make enquiries of the plaintiff’s former general practitioners prior to the hearing; and

(b)not to apply for the matter to be stood down on 14 or 15 April 2014 to enable enquiries to be made.

27      There has been no explanation as to why instructions were not obtained from the plaintiff concerning the identity of his previous general practitioners and of the nature and extent of any treatment provided by them prior to 2009.  Such matters were obviously relevant to a case such as this.  One would have expected such instructions to have been sought well prior to the original hearing date in November 2013, and certainly immediately thereafter when the issue was specifically referred to by counsel for the defendants on that date.

28      On the evidence before me, I am satisfied that the application to re-open does not come within any of the four classes of cases described by Kenny J.

29      I am not satisfied that in the circumstances of this application, it is appropriate to give leave to the plaintiff to re-open his case.

30      The application is dismissed.

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