McGrath v Estar Lighting Pty Ltd & Anor (Ruling)

[2022] VCC 2247

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-22-03677

EDWARD McGRATH	Plaintiff
v
ESTAR LIGHTING PTY LTD	First Defendant
and
TABCORP WAGERING ASSETS (VIC) PTY LTD	Second Defendant

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JUDGE:	Her Honour Judge Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2022
DATE OF RULING:	14 December 2022
CASE MAY BE CITED AS:	McGrath v Estar Lighting Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2247

RULING (EX TEMPORE)
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Subject:CIVIL PROCEDURE

Catchwords:              Stay application by defendants – Strike out application by plaintiff – Application for order that plaintiff be deemed to have significant injury – Application for declaration the plaintiff is entitled to maintain claim for non-economic damages

Legislation Cited:      Wrongs Act 1958 – Wrongs (Part VBA Claims) Regulations 2015

Cases Cited:Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 – Ko v Hall [2020] VSCA 224

Ruling:The defendants’ summons dismissed. Paragraphs 10(b)(c) and (d) of the first defendant’s defence and paragraphs 10 and 11 of the second defendant’s defence are struck out. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota	Arnold Thomas & Becker
For the Defendants	Mr L Howe	Moray & Agnew Lawyers

HER HONOUR:

1This is an application by the defendants for a stay of the proceeding pursuant to s28LZMA of the Wrongs Act 1958.

2This is also an application by the plaintiff for orders that certain parts of the defendants’ defences be struck out, the plaintiff be deemed to have a significant injury pursuant to s28LW(4) or s 28LWE of the Wrongs Act and for a declaration that the plaintiff be entitled to maintain his claim for non-economic loss damages against the defendants. 

3If the plaintiff is deemed to have a significant injury pursuant to the relevant sections of the Wrongs Act, there is no requirement for declarations that the plaintiff be entitled to maintain his claim for non-economic loss damages.   The one follows from the other. Alternatively, if the plaintiff is not deemed to have a significant injury, the Court has no power to make the declarations sought at paragraph 5 of the plaintiff’s summons.

4The parts of the  defences the plaintiff seeks to strike out are those where the defendants do not admit that the plaintiff has sustained a significant injury and plead that the plaintiff is not entitled to pursue damages for non-economic loss until such time as he has complied with the provisions of the Wrongs Act.

5In effect, both summons require the Court to grapple with the same issue which is whether the certificate of assessment and prescribed information provided to the defendants by the plaintiff were valid within the meaning of the Wrongs Act and whether, as a consequence, the plaintiff is deemed to have a significant injury.

Legislative Provisions

6Section 28LE of the Wrongs Act provides that a person is not entitled to recover damages for non-economic loss for injuries caused by the fault of another person unless the person injured has suffered a significant injury.

7The Act defines what constitutes a significant injury and prescribes a procedure for a person injured to establish that the claimed injuries meet the required threshold.

8Section 28LZMA provides that a court may stay the proceeding until the claimant has served a certificate of assessment and any other information that is required to accompany the certificate when it is served.

Certificate of Assessment

9Section 28LN requires that a person must obtain a certificate of assessment from an approved medical practitioner which states whether the degree of impairment resulting from the injury satisfies the threshold level.

10The certificate of assessment must be in the form prescribed by the Wrongs (Part VBA Claims) Regulations 2015 (“the Regulations”).

11This requires a medical practitioner to complete and sign a certificate setting out the medical practitioner’s name, qualifications and contact details and certifying  that the medical practitioner has examined the claimant, the date of the examination and that the medical practitioner is or is not satisfied that the degree of impairment resulting from the persons injury, other than psychiatric injury, satisfies the threshold level. 

12The prescribed form provides a space under that information for the medical practitioner to provide a “Brief description of injury assessed”.  The form must then be signed and dated by the medical practitioner.

13Under the legislation, a respondent has 60 days to respond in writing after receiving a certificate.  If a respondent fails to respond in writing within 60 days, the respondent is deemed to have accepted the certificate of assessment and the plaintiff is deemed to have a significant injury.

14Alternatively, the respondent can take various steps including disputing they are a proper respondent, requesting further information or referring the claimant to the Medical Panel.  A respondent must make a referral to the medical panel within 60 days of receiving the certificate of assessment, or within 60 days of receiving further information pursuant to s28LWA or within 14 days of receiving a notice under 28LWB. 

Prescribed information

15A claimant who intends to rely on a certificate of assessment must serve a copy of the certificate of assessment obtained on the respondent.

Section 28LT

16Pursuant to s 28LT(2), the certificate of assessment must be accompanied by the prescribed information in the prescribed form.

17The Regulations set out at reg 7 the prescribed information that must be provided:

(a)   the name of the claimant;

(b)    the name of the claimant's legal representative (if applicable);

(c)   the address of the claimant or the claimant's legal representative;

(d)   the telephone number of the claimant or the claimant's legal representative;

(e)   the email address of the claimant or the claimant's legal representative;

(f)     the date of birth of the claimant;

(g)   the name of the respondent;

(h)   the address of the respondent;

(i)    the telephone number of the respondent (if known);

(j)    a statement of reasons explaining why the claimant asserts that the respondent is the proper respondent to the claim;

(k)   the name, address and telephone number (if the number is known) of any party (other than the respondent) who the claimant considers to be a proper respondent to the claim and reasons why the other party is also considered to be a proper respondent;

(l)    the date, time and location of the incident;

(m)     a description of the incident;

(n)   details of the injury suffered as a result of the incident;

(o)   details of any of the following categories of loss suffered by the claimant as a result of the injury—

(i)pain and suffering;

(ii)loss of amenity of life;

(iii)loss of enjoyment of life;

(p)   details of any report of the incident on which the claimant intends to rely, including the date of the report and the person to whom the report was made;

(q)   the name, professional qualifications, address, telephone number and email address of any medical practitioner who has treated the injury of the claimant.

Chronology of events

18On 24 May 2022 the plaintiff served the certificate of assessment dated 5 April 2022 and prescribed information dated 19 May 2022 on both defendants.  The certificate of assessment did not include the report of Mr Roger Westh and there is no requirement that it do so. 

19The plaintiff contends that the period in which the defendants could respond to the certificate of assessment to either request further information or refer the plaintiff to the medical panel elapsed on 23 July 2022.  No response was received and the plaintiff commenced these proceedings on 6 September 2022.

20On 26 October 2022 the plaintiff amended his statement of claim to include a claim that he had a deemed significant injury pursuant to Part VBA of the Act.

21The first defendant’s solicitor says she first received the certificate of assessment and prescribed information on 11 October 2022.  She also received a copy of the report of Mr Westh dated 12 April 2022 on that date. 

22The second defendant’s solicitor obtained the certificate of assessment and prescribed information on 12 September 2022.  The plaintiff forwarded a copy of Mr Westh’s medical report dated 12 April 2022 to the second defendant’s solicitor on 11 October 2022.

The defendants’ submissions

23The defendants submit the certificate of assessment does not comply with the requirements of Part VBA of the Act because the medical practitioner, Mr Westh, has not completed the section headed ‘Brief description of injury assessed’.

24The defendant says that to comply with s28LN the certificate must disclose what injury was assessed by the medical practitioner.  In Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels,[1] the Court held that a mandatory obligation under S28LT to provide prescribed information was designed to impose an obligation upon a person who has the necessary information to provide that information to the person who is called upon to respond to a complaint, and to enable the medical panel to deal with it efficiently. 

[1] Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels [2012] VSC 472.

25The party who has not complied with the mandatory provision of information cannot rely on that non provision to avoid a referral to the medical panel. In that case, the Court held that the means of compliance should not be left to inference or assumption.  The obligation imposed on the claimant was to provide sufficient information for another to deal with a claim. 

26The defendant says it is implicit in the wording of the legislation that the respondent must be informed of what injury has been assessed.  This is because the legislation requires the medical practitioner to state whether the degree of impairment resulting from the injury satisfies the threshold level.  The respondent must be entitled to know what ‘the injury’ is to which the medical practitioner is referring.

27The defendant says the Regulations are complimentary to s28LN. Section 5 of the Regulations states the prescribed form of the certificate of assessment under s28LN is Form 1 in Schedule 1. The form requires the medical practitioner to identify the injury assessed.

The plaintiff’s submissions

28The plaintiff says the certificate of assessment complied with the legislation.  The legislation requires only that the certificate be provided by an approved medical practitioner, state whether the degree of impairment resulting from the injury satisfies the threshold level and does not state the degree of impairment.  There is no requirement ,in the legislation, for the injuries assessed to be identified by the approved medical practitioner.

29The plaintiff says there is a distinction between the mandatory provisions of the legislation and the directory provisions. 

30The legislation imposes no mandatory obligation on the medical practitioner to state which injury was assessed, nor to comply with the prescribed form.

31This can be contrasted with the language used in s28LT which does impose mandatory obligations.  There are very clear consequences for a failure to comply with mandatory obligations under the legislation.

32The obligation to use Form 1 is imposed by the Regulations. Had parliament intended the use of Form 1 to form part of a mandatory obligation that would render a certificate of assessment invalid for non-compliance, it would have used clear and unequivocal language.

33In other parts of the Act there are clear consequences for a failure to comply. Tellingly the legislation is silent on the consequences of the failure to complete all parts of Form 1. 

34The intention of parliament was for the respondent to know that a medical practitioner considered the claimant’s injury met the statutory threshold.  Other information was available from the prescribed information and there is no dispute in this case that this was provided.  The injury assessed is necessarily going to be the injury claimed, or a subset of the injuries claimed, in the prescribed information.

35The respondent has all the information required to determine whether to refer the matter to the medical panel, regardless of whether or not the medical practitioner identifies the injury assessed.

36As the respondents have not referred the claimant to the medical panel for a determination, the plaintiff is deemed to have sustained a significant injury.

Analysis

Does the legislation require the approved medical practitioner to identify the injuries assessed?

37Determination of this question requires an exercise of statutory interpretation. Project Blue Sky v Australian Broadcasting Authority sets out the principles:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[2]

[2] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 388-389, [91].

38The starting point is the text.

39Ko v Hall, citing other High Court of Australia authorities, identified the surest guide to legislative intent is the language which has actually been employed.[3]  In this case the question is not so much whether the legislature intended the respondent to have information about what injury was assessed, as whether it was the intent of the legislature to render a certificate of assessment invalid where the medical practitioner did not identify the injuries assessed.

[3] Ko v Hall [2020] VSCA 224, [78].

40The requirements of the Certificate of Assessment imposed by s 28LN are that:

(a)   It must be prepared by an approved medical practitioner;

(b)   It must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment;

(c)   If not all the injuries are stable, it can only be provided if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.

41These are mandatory requirements and a certificate of assessment that did not comply with these would likely be invalid.

42Regulation 5 of the Regulations provides that the prescribed form of the certificate of assessment is Form 1 Schedule 1. This form was used in this case, however one part of it was not completed.

43The legislation is silent on the requirement for the medical practitioner to describe the injuries assessed.  This leaves open the question of whether the requirement to use Form 1 is dictionary only or, if it is mandatory, whether failure to complete the Form would render the certificate invalid.

44The purpose of the certificate of assessment is to inform the respondent of the basis upon which the person claims to have an entitlement to make a claim for non-pecuniary loss.  That is, that a person has obtained a certificate of assessment from an authorised medical practitioner attesting to that practitioner’s opinion that the person meets the statutory threshold.

45The prescribed information is intended to identify the claimant, the circumstances in which the injury is said to have arisen, the injury claimed and the categories of loss claimed.  Much of the prescribed information requires the claimant to identify why they consider the respondent to be the proper respondent to the claim.  The legislation provides a mechanism for the respondent to seek further information about this.  There is no corresponding mechanism for the respondent to seek further information about the injuries claimed or assessed.

46The information required to be provided in relation to the injury claimed is limited. The legislation imposes a significant burden on a respondent to make a decision to refer a claimant to the medical panel based on limited information. The legislation does not, for example, require the plaintiff to provide medical reports or records which would give a respondent a potentially better understanding of the nature of the injuries.  It does not require the approved medical practitioner to provide a report.  The legislature has made a decision to limit the information required to be provided by a claimant.

47The medical practitioner is able to identify the injuries assessed in the certificate. but is not required to do so under the legislation.  In my view the legislation therefore does not impose a mandatory requirement that the medical practitioner identify the injuries assessed in the certificate of assessment.  A failure to do so does not render the certificate invalid.

48Accordingly. I am satisfied that the certificate of assessment served on 24 May 2022 was a valid certificate and this triggered the clock to run for a referral to the medical panel.  The respondents failed to make the referral within 60 days.

49Pursuant to s28LW(4) the respondents, having failed to respond in writing to the certificate of assessment within 60 days are deemed to have accepted the assessment.  Pursuant to s28LWE(2), the respondents may not refer a medical question in relation to the assessment to the Medical Panel.

50The defendants’ summons is dismissed. Paragraphs 10(b)(c) and (d) of the first defendant’s defence and paragraphs 10 and 11 of the second defendant’s defence are struck out.