Nathan Hill v Catalent Australia Pty Ltd and Anor [2016] VCC 987

[2016] VCC 987

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-04693

Nathan Hill	Plaintiff
v
Catalent Australia Pty Ltd & Anor	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2016
DATE OF RULING:	14 July 2016
CASE MAY BE CITED AS:	Nathan Hill v Catalent Australia Pty Ltd & Anor [2016] VCC 987.
MEDIUM NEUTRAL CITATION:	[2016] VCC 987

REASONS FOR RULING
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Subject:  
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Legislation Cited:     
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Ruling:  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Popova
For the Defendant	Mr S Smith

HER HONOUR:

1 The defendant applies for referral of a number of questions, said to be “medical questions” to a Medical Panel, pursuant to the provisions of s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013[1] (“the WIRC Act”).

[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

2       The questions are as follows:

1. What is the nature of the plaintiff’s current medical condition relevant to the injuries referred to in paragraph 7 of the draft statement of claim, namely:

(a)          Injury to the spine, in particular the lumbar spine?

(b)Injury to the lower extremity, in particular his left leg and foot? (hereinafter referred to as “the alleged injuries”)

2. Do any of the medical conditions identified in response to question 1 result from or are they materially contributed to by the injury allegedly sustained:

(a)Throughout the course of the plaintiff’s employment with the First Defendant?

(b)        On 17 September 2008?

3. Are any, and if so which, of the medical conditions identified in response to question 1 permanent?

4. Does the plaintiff have:

(a)        A current work capacity?

(b)        No current work capacity?

5. If yes to question (4)(a), do any of the following constitute suitable employment:

(a)        Receiving and despatch clerk?

(b)        Production clerk?

(c)        Hand packer?

(d)        Product examiner?

(e)        In-process check operator? 

6. If yes to question 4(a) or any part of question 5, for how many hours per week can the Plaintiff perform such duties or employment? 

7. If no to question 4(a) or any part of question 5 or yes to question 4(b):

(a)Does the plaintiff’s incapacity for work result from or is it materially contributed to by any, and if so which, of the alleged injuries?

(b)        Is any such incapacity permanent? 

3 Section 274 of the WIRC Act relevantly provides that if a party to the proceeding requests that a “medical question” be referred to a Medical Panel, the Court must, subject to subsections (3), (4) and (5) of s274, refer that question for an opinion under Division 3. Relevantly, sub-paragraph (5) provides that a Court must not refer a medical question “if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”

4 The proceeding in this case is an application pursuant to s134AB(16) of the Accident Compensation Act 1985[2] (“the Act”) for leave to bring common law proceedings. Mr Hill seeks leave to issue common law proceedings for damages for pain and suffering and loss of earning capacity in respect of an injury to his back and left leg suffered during the course of employment and on a particular date.

[2]Accident Compensation Act 1985 (Vic).

5       Counsel for the plaintiff objected to referral of all but the first question. There were two principal grounds of objection.

6 Firstly, it was submitted, questions 2, 3 and 6 are not “medical questions” as defined in section 3 of the Act, because they do not fall fairly within any of the sub-paragraphs of s3 of the Act.

7       Secondly, it was submitted, questions 2 to 7 concern issues which are more appropriately determined by this Court. This is because the plaintiff’s credit is in issue and the question of his work capacity is better determined by a court after cross-examination of the various medical witnesses.

8 Counsel for the defendant made submissions in response which can be briefly summarised as follows. Firstly, although the wording of questions 2, 3 and 6 is not in exactly the same terms as in the relevant sub-paragraphs of s3 of the Act,[3] the issues addressed do fall within one or more of the sub-paragraphs of that section. For example, question 2 could fall within sub-paragraph (h) or (i) of the definition of “medical question”; question 3 could fall within sub-paragraphs (b) or j(ii), and question 6 could fall under sub-paragraph b.[4]

[3]Accident Compensation Act 1985 (Vic) s 3.

[4]Accident Compensation Act 1985 (Vic) s 3.

9       Secondly, it was submitted, the Medical Panel is not less appropriate than the court to determine questions 2 to 7. The plaintiff’s credit is not in issue in the sense that the defendant accepts that he has the symptoms he suffers and the restrictions he has. The issue in this case is whether he has a residual capacity for suitable employment. The Medical Panel will have all the relevant medical and vocational assessment reports, the surveillance footage of the plaintiff will only be relied on to show his movement and restrictions, and the Medical Panel may include an occupational physician who is qualified to assess his capacity for the proposed jobs.

10      In reply, counsel for the plaintiff submitted that the defendant’s assertion that there is no credit issue in this case is incorrect, as the plaintiff says in his affidavit, contrary to the conclusions expressed in the vocational assessment report, that he has problems with self-care and cannot do any work.

Legal Principles  

11      The relevant legal principles may be briefly stated as follows:

a) Each of the questions enumerated in the definition of “medical question” is taken to be “more indicative than definitive.”[5]

[5]Greeves v HIH Winterthur Workers’ Compensation (Vic) Ltd [2000] VSCA 68 at [30].

b) Provided that the issue is properly identified to the court and is fairly within one or other of the paragraphs of the definition of “medical question”, the court is bound to refer that question to a Medical Panel.[6]

[6] Ibid at [27].

c) The question must be relevant in the sense that the opinion which is sought of the Medical Panel will be or might be capable of assisting the court in resolving the dispute.[7]

[7]Isuzu General Motors Australia Ltd & Anor v Jordon (2000) 2 VR 212, 13.

d) Poor wording of a question will not prevent a suitably amended question from being referred, provided the issue itself falls within the definition of “medical question” and that an opinion on that issue will assist in the proceeding before the court.[8]

[8] Above n 4, at [30].

e) Where the medical questions concern the existence and extent of the plaintiff’s injuries and determination of these questions would depend substantially on the resolution of factual issues, a court may conclude that those factual issues were more appropriate for determination by a court. As the Court of Appeal noted in United Doormakers (Vic) Pty Ltd v Amendola[9]  

“…It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolved those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting – something which is not available to a Medical Panel.”[10]

[9] Unreported, VSCA, S APCI 2012 0162, 16 November 2012.

[10] Ibid at [20].

Findings and reasons

12 I assume for the purpose of this ruling that questions 1 to 7 fall fairly within one or more of the sub paragraphs of the definition of “medical question” in section 3 of the WIRC Act.

13      I consider that questions 1 and 3 are appropriate questions for referral to a Medical Panel. Questions concerning the diagnosis of the plaintiff’s condition and its permanence are regularly answered by a Medical Panel.

14      I consider that questions 4-6 deal with the plaintiff’s capacity for suitable employment. I accept that medical opinion is an important aspect of the assessment of work capacity for various areas of employment. However, I consider that there are other matters which underlie a determination of work capacity, including those of a worker’s credibility, his capacity for retraining, and his ability to carry out various tasks in employment, which are substantial and, to the extent that they are the subject of dispute, are better determined by a court.

15      Questions 2 and 7 concern causation. For the same reasons as outlined in the previous paragraph, I consider that the matters the subject of these questions are better determined by a court.

Conclusion

16      It is appropriate that questions 1 and 3 be referred to a Medical Panel. The defendant’s application to refer the other questions is refused.