Rizk v Sigiad Security Services Pty Ltd

[2009] VCC 636

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-03117

ALBERT RIZK	Plaintiff
v
SIGIAD SECURITY SERVICES (VIC) PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2009
DATE OF RULING:	18 May 2009
CASE MAY BE CITED AS:	Rizk v Sigiad Security Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 00636

RULING

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Catchwords: ACCIDENT COMPENSATION – plaintiff commenced an application for serious injury pursuant to section 134AB of the Accident Compensation Act 1985 – application to refer medical questions to a Medical Panel – whether questions were “medical questions” as defined by section 5(1) – basis of referral: section 5(1), 45(1) and (1A).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Spittle	Hounslow & Associates
For the Defendant	Mr J Parrish SC	Herbert Geer
HIS HONOUR:

Introduction

1 Before the Court is an application made by the plaintiff to have medical questions referred to a Medical Panel pursuant to section 45(1)(b) and (1A) of the Accident Compensation Act 1985 (“the Act”).

2 The plaintiff commenced a proceeding by Originating Motion filed on 15 August 2007, applying for leave to commence a proceeding at common law pursuant to section 134AB(16)(b) of the Act.

3          The endorsement on the Originating Motion discloses that the plaintiff alleges that he suffered injury arising out of or in the course of his employment with the defendant on or about 22 March 2001.

The Medical Questions

4          Mr Spittle provided me with four questions which the plaintiff wants to have referred to a Medical Panel. They are:

Question 1:	What is the nature and extent of the compensable neck injury and injury to the shoulders suffered by the plaintiff on the night of 22nd-23rd of March, 2001 (“the alleged injury”)?
Question 2:	Did the alleged injury result in or materially contribute to the plaintiff's behavioural disturbance or disorder: namely depressive illness as pleaded in paragraph 6 (Particulars of Injury) of the draft Statement of Claim?
Question 3:	Does the plaintiff have a loss of body function to the neck and/or shoulders?
Question 4:	Did the alleged injury result in or materially contribute to the loss of body function identified in Question 3 above?

Section 134AB

5 Section 134AB(1) of the Act prohibits a worker from recovering any damages for non pecuniary loss and for pecuniary loss except where permitted by section 134AB.

6          Subsection (16) establishes the basis upon which a worker may recover such damages.

7          Subsection (37) defines the meaning of “serious injury” and subsection (38) provides that for the purposes of assessment of serious injury in accordance with subsection (16) and (19), a number of definitions apply, inter alia, paragraphs (c) and (d).

8 Section 45(1A) extends the referral of medical questions to a Medical Panel to applications for leave made under section 134AB(16)(b). It is in the following terms:

"(1A) This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b)—

(a)	so as to enable in accordance with subsection (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of medical question in section 5(1)); or
(b)	so as to require in accordance with subsection (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of medical question in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—

for the opinion of a Medical Panel."

9          “Medical Question” is defined in section 5(1) of the Act as follows:

"(a) a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or

(ab) a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or

(aba) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment; or

(abb) a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no current work capacity; or

(abc) a question as to whether a worker has a current work capacity and because of the injury, is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking; or

(ac) a question as to the medical service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service; or

(b) a question whether a worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury; or

(ba) if paragraph (b) does not apply, a question whether a worker's employment was in fact, or could possibly have been, a contributing factor to an injury or alleged injury, or to a similar injury; or

(c)	a question as to the extent to which any physical or mental condition, including any impairment, resulted from or was materially contributed to by the injury; or
(d)	a question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with section 91 and a question as to whether or not that impairment is permanent; or

(da) a question as to the amount of the total percentage referred to in section 89(3)(b); or

(e)	a question as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1); or
(f)	a question whether a worker's incapacity for work resulted from or was materially contributed to by an injury or alleged injury;
(g)	a question whether a proposal under section 99AAA for a co- ordinated care program, or an alteration of such a program should be approved or such a program should be cancelled; or
(h)	a question prescribed to be a medical question in respect of an application for leave under section 134AB(16)(b); or

(i) a question determined to be a medical question by a court hearing an application for leave under section 134AB(16)(b)."

10 Section 45(1)(b) of the Act requires the Court to refer medical questions to a Medical Panel where a party to the proceedings makes a request for such a referral.

11 Paragraphs (h) and (i) of the definition of “Medical Question” refer to questions specifically referable to section 134AB(16)(b). In the case of paragraph (h), it refers to a question prescribed to be a medical question, but it is clear that there are no such questions prescribed by the Act, and in the case of (i), it appears to only be relevant where a court is seized of and is hearing an application where, in the course of that hearing, the court considers it appropriate to refer a medical question to a Medical Panel.

12 Mr Parrish submitted that paragraph (i) would apply where a medical condition was said to be constitutional and not capable of constituting an injury as defined in section 5(1) by one party, whereas the other submitted that it was capable of being aggravated, accelerated or exacerbated. If the medical fraternity were divided then it would be open to a trial judge to refer a medical question to a Medical Panel, which step would be authorised by paragraph (i). It occurs to me that this is a correct analysis of the work that paragraph (i) is intended to do.

13        Mr Parrish referred me to Pope v WS Walker & Sons Pty Ltd,[1] in which Eames JA referred to the relationship between section 134AB and the power to refer medical questions to a Medical Panel. He said:

“The legislative acknowledgment that the character of proceedings under s 134AB is quite distinct from proceedings concerned with disputes about statutory entitlements is reflected, in my opinion, by the terms of s 45(1A) and the extended definition of ‘medical question’. By those provisions the County Court is given unique power when hearing a s 134AB application. If the court chose to refer a medical question to a panel the unfettered scope of the court’s power was made plain by the breadth of para (i) in the definition of medical question.

Although the breadth of medical question (i) would be such as to encompass any questions on the topics set out in the existing paragraphs of the definition in s 5 of ‘medical question’, the fact that power to refer questions under the existing paragraphs was expressly granted as well as additional power under paras (h) and (i) does not indicate that Parliament treated an opinion obtained for the purpose of a statutory benefits dispute as being of equal relevance to the hearing of a s 134AB application.

Before 2000 all of the existing medical questions from paras (a)–(g) could have been referred by the court to a medical panel with respect as to a dispute about statutory benefits, pursuant to the power under s 45(1), and it was statutory benefits claims with which s 68(4) was concerned. Thus, what is made clear by s 45(1A) is that the court now has power to refer all such medical questions (that is those under paras (a)–(g)) for the purpose of its hearing of a s 134AB application, but, in addition, exclusive power is given to pose medical questions under paras (h) and (i). Thus, the court hearing proceedings under s 134AB is given power which is no less, and is indeed greater, than that given to courts, bodies or persons concerned with statutory benefits disputes.”[2]

[1] (2006) 14 VR 435

[2]             at 444-445

14        It occurs to me that it was the intention of the legislature by amending the Act to include section 45(1A) to do just what Eames JA has referred to, and that is, to have medical questions relevant to a proceeding under section 134AB referred to a Medical Panel, and that the answer to the questions the subject of a referral are of equal relevance to the hearing of a section 134AB application as they would to a statutory benefits claim, and indeed binding on a trial judge.

Whether to Refer or Not?

15 Once a party requests a referral of medical questions, section 45(1)(b) requires the court to refer the medical questions to a Medical Panel, however, the question remains whether the medical questions submitted by Mr Spittle are in fact medical questions.

16        In Isuzu General Motors Australia Ltd v Jordan,[3] Phillips JA made the following observations which are of great assistance in taking the first step in determining whether the questions are indeed medical questions:

“So far as concerns the criteria adopted by Hedigan J in Greeves, it is unnecessary, I think, to consider the residual possibility of abuse. Perhaps the possibility is real but it may be left until it arises (if ever it does), for the other criteria are of more immediate interest. I agree with his Honour that a question must be referred to a medical panel under s 45(1)(b) (that is upon application by a party) if it is a ‘medical question’ as defined in s 5 of the Act and if it is relevant to the litigation then before the court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the courts,9 but nevertheless it is the court which, in the end, must adopt and apply the opinion in the determination of the litigation before it.”

[3] (2000) 2 VR 212

17 I now return to what the plaintiff needs to prove in order to obtain leave pursuant to section 134AB(16)(b) of the Act.

18        In Barwon Spinners v Podolak,[4] the Court of Appeal made a number of observations which are directly relevant to an analysis of what a plaintiff, for leave, must prove in order to succeed:

“… Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, ie, likely to last for the foreseeable future; and thirdly, are the consequences for the plaintiff such as to satisfy the ‘very considerable’ test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by para (a) of subs (37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the plaintiff relies to satisfy the ‘very considerable’ test will be otherwise.

Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description ‘permanent serious impairment’ if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the ‘very considerable’ test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives — permanent and serious (as defined) — and beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.”[5]

[4] (2005) 14 VR 622

[5]             at 639

19 A distillation of the elements of what constitutes serious injury from the relevant subsections of section 134AB, and the practical assistance to be gained by what was said by the Court of Appeal in Barwon Spinners v Podolak (supra) comes down the following:

• The occurrence of the injury arose out of or in the course of, or due to the nature of, employment.

• The injury resulted in an impairment of a body function.

• The impairment is permanent.

• The impairment resulted in consequences which are then tested against the definitions of serious injury in subsections (37) and (38).

20 Medical questions framed around each of those elements are relevant and are of assistance to the Court in resolving an application made under section 134AB.

21 I consider that in order to determine whether the questions submitted by Mr Spittle are medical questions, that the Court must look at sections 45(1)(b), (1A)(a) and (b), and the definition of “medical question” in section 5(1) through the prism of section 134AB and its elements.

22        The first question submitted by Mr Spittle seems to me to directly equate with paragraph (a) under the definition of “medical question”.[6] I cannot see that an answer to that question would be irrelevant and of no assistance to the Court in resolving an application made under section 134AB. However, the question requires extensive redrafting.

[6]             Paragraph (a) means "a question as to the nature of a worker's medical condition relevant to an injury or an alleged injury".

23        The second question submitted by Mr Spittle also seems to me to directly equate with paragraph (c) under the definition of “medical questions”.[7] However, this question also requires extensive redrafting.

[7]             Paragraph (c) means "a question as to the extent to which any physical or mental condition, including any impairment, resulted from or is materially contributed to by the injury".

24        Neither of the third and fourth questions fit within the definition of “medical question”. There is no direct medical question relevant to whether a worker has suffered a loss of body function and whether the injury resulted in, or materially contributed to, the loss of body function.

25        The only medical question which coincides with the third and fourth questions is paragraph (d), however, the expression “level of impairment” is used directly in connection with section 91 which serves a very different purpose, that is, the assessment of the liability to pay no fault compensation.

Conclusion

26 The first question I must ask and then answer is whether I am obliged under section 45(1)(b) to make such a referral when the plaintiff requests the referral? The answer to that question is yes.

27        Next, whether the answers to the questions will, or might be, capable of assisting the Court in the ultimate determination of the application to serious injury? The answer to that question is also yes.

28 The approach that I must take in determining whether the questions are in fact medical questions is to look at those questions through the prism of a serious injury application and determine whether any of the medical questions as defined in section 5(1) approximate to the inevitable questions which arise on the hearing of a serious injury application.

29 Having taken those steps and that approach, I conclude that I am required to make the referral because the questions are relevant to the determination of a serious injury application, however, it is only Questions 1 and 2 which appear to me to be medical questions as defined under section 5(1) of the Act.

30        Therefore, and subject to submissions limited to the form of the questions, I propose to make the referral based upon the thrust of Questions 1 and 2, but not Questions 3 and 4.

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