Olsen v Wyndham City Council and Universal Concrete Constructions Pty Ltd (Ruling)
[2013] VCC 421
•27 March 2013
| 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-11-03262
| DARLENE OLSEN | Plaintiff |
| v | |
| WYNDHAM CITY COUNCIL | First Defendant |
| and | |
| UNIVERSAL CONCRETE CONSTRUCTIONS PTY LTD (ACN 065 489 894) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 15 and 22 February 2013 | |
DATE OF RULING: | 27 March 2013 | |
CASE MAY BE CITED AS: | Olsen v Wyndham City Council & Universal Concrete Constructions Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 421 | |
RULING
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Subject: PRACTICE & PROCEDURE
Catchwords: Imminent death – significant injury
Legislation Cited: Wrongs Act 1958 – s28LZN
Ruling: The plaintiff’s injury is a significant injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Metaxas | Clark Toop & Taylor |
| For the Defendant | Mr R Stanley | Ligeti Partners |
HER HONOUR:
1 The question for me to determine is the operation of s28LZN(2)(b) of the Wrongs Act 1958 (“the Act”)
2 On 15 February 2013, I determined that the plaintiff’s death was imminent pursuant to s28LZN(2)(a) of the Act. I adjourned the determination of s28LZN(2)(b) to enable the parties to provide submissions. I received submissions from the parties dated 20 and 22 February 2013. Counsel for the plaintiff and the first defendant made oral submissions.
3 The first defendant’s submission was that the determination of s28LZN(2)(b) be deferred to the trial judge of the damages hearing. The submission of the first defendant was that the Court must act judicially. The subsection does not permit a “rubber stamp” approach.
4 Because of the wording of s28LZN(2)(b), the Court may make a determination of significant injury if the Court is satisfied that –
(b)the injury, if assessed under Division 3, would be a significant injury.
5 The submission of the first defendant was that the Court must have regard to the assessment provisions set out in Division 3, in particular:
· Section 28LL(3), which requires that impairments from unrelated injuries or causes are to be disregarded in making an assessment.
· Sections 28LH, 28LI and 28LM require the assessment to be performed in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment.
· Section 28LJ requires that, when assessing psychiatric impairment:
“… regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.”
6 The first defendant submitted if I were to determine “significant injury” on the material before the Court, it would be denied natural justice, as the first defendant should have the opportunity to be heard.
7 Further, the first defendant submitted that the reports and certificates of Dr Jonathan Burdon and Dr Albert Kaplan contravene the requirements of Division 3.
8 In addition, the first defendant should have the opportunity to have the plaintiff examined.
9 I accept the submission of the plaintiff that a Certificate of Assessment in accordance with s28LN of the Act is sufficient to satisfy the Court of the requirement of s28LZN(2)(b) that “the injury, if assessed under Division 3, would be a significant injury”.
The Act
10 Part VBA of the Act establishes a framework for claims in relation to recovery of damages for non-economic loss (subject to certain irrelevant exceptions).
11 Section 28LF of the Act defines “significant injury”. Subsection (1)(a) provides:
“… injury to a person (other than a psychiatric injury) is a significant injury if –
(a)the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
… .”
12 Subsection (2)(a) provides:
“... psychiatric injury to a person is significant injury if—
(a)the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; … .”
13 Division 3 of the Act provides for the assessment of impairment, in particular who can assess impairment,[1] how the degree of impairment is to be assessed,[2] the prescribed methods of assessment,[3] and certificate of assessment.[4]
[1]Section 28LG
[2]Section 28LH
[3]Section 28LM
[4]Section 28LN
14 Section 28LN provides for a certificate of assessment that complies with the requirements of Division 3 of the Act. The purpose of the certificate of assessment under s28LN is to provide the Court with certification of the assessment of the injury under Division 3 of the Act. This is the only way under the Act that a Court can make such a determination in response to s28LZN.
15 Section 28LZN provides a simple and practical means for the Court to determine significant injury in the case of imminent death.
Conclusion
16 I do not accept that Dr Burdon’s assessment was not performed in accordance with Division 3. The nature and extent of the claimed injury was identified on the Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury as being “chronic obstructive airways disease”.
17 Under the Act I am entitled to rely upon the certificate provided by Dr Burdon. As such, I accept the plaintiff has a significant injury, being chronic obstructive airways disease.
18 In respect to the certificate of assessment of Dr Kaplan, the first defendant submitted, firstly, that the plaintiff’s psychiatric condition was unrelated to this claim. Secondly, that the psychiatric condition is likely to improve after the finalisation of this claim. Thirdly, that Dr Kaplan did not state in his report that he performed the assessment in accordance with the AMA Guidelines.
19 The first two submissions are not supported by the report provided by Dr Kaplan. I accept that Dr Kaplan did not refer to the AMA Guidelines in his report; however, that does not mean that he did not apply the Guidelines. Based on the submissions of the plaintiff dated 22 February 2013, I am satisfied that Dr Kaplan took into account the AMA Guidelines when preparing his report.
20 I reject the submissions of the first defendant that it is denied natural justice as it should have the opportunity to be heard and should be entitled to have the plaintiff examined for the purpose of s28LZN. The Act does not provide for these matters in the circumstances of imminent death.
21 Accordingly, I accept, that based on the certificates of assessment of Dr Burdon and Dr Kaplan, the plaintiff has satisfied the Court that the injury is a significant injury under Division 3 of the Act.
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