Sakellaris v Achievement Cleaning Services Pty Limited (Ruling)

[2013] VCC 1794

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-11-05571

PANAGIOTA SAKELLARIS	Plaintiff
v
ACHIEVEMENT CLEANING SERVICES PTY LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 11, 12, 13, 14, 15, 18, 19, 20 and 21 November 2013
DATE OF RULING:	8 November 2013
CASE MAY BE CITED AS:	Sakellaris v Achievement Cleaning Services Pty Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VCC 1794

RULING
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Subject:  EVIDENCE

Catchwords: Tendering of evidence of acceptance of claimed injury by authorised agent – acceptance of liability for surgery – admission of liability in terms of acceptance of injuries pursuant to s104B – whether admissible in common law proceedings

Legislation Cited:     Accident Compensation Act 1985, s104B

Cases Cited:Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Transport Accident Commission v Florrimell [2013] VSCA 247; Ansett Australia Ltd v Taylor [2006] VSCA 171; Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7) [2006] VSC 390; Maurice Blackburn Cashman v Brown [2011] HCA 22; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Pope v WS Walker & Sons Pty Ltd & Anor [2006] 14 VR 435; Driver v CSR Viridian Limited (Unreported VCC, 21 May 2013); David Larner v George Weston Foods Limited (Ruling No 2) (Unreported, VCC 15 March 2012)

Ruling:  Plaintiff’s application to lead evidence of the putative admissions refused.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie with Ms K Burgess	Zaparas Lawyers
For the Defendant	Mr D Curtain QC with Mr B McKenzie	Wisewould Mahony

HIS HONOUR:

1 In this matter I am asked to decide a preliminary point as to advice by plaintiff’s leading counsel that he would be seeking to tender before the jury evidence to the following effect: first, evidence of acceptance of the plaintiff's claimed injury by the authorised agent and, secondly, the acceptance of liability for surgery for right carpal tunnel syndrome which was performed approximately a year after the plaintiff ceased work and, thirdly, an admission of liability in terms of acceptance of injuries pursuant to s104B of the Accident Compensation Act 1985 (“the Act”) for the purposes of the impairment assessment.

2       In making the application, plaintiff’s counsel relies, inter alia, on the decision of Fokas v Staff Australia Pty Ltd,[1] a decision handed down by the Court of Appeal on 12 September 2013 where the Court had to consider the relevance of a respondent’s admission of liability pursuant to s104B(2) of the Act and its interrelationship with s134AB(38)(h) of the Act.

[1][2013] VSCA 230

3       In that case, it was recorded, at paragraphs 37 and 38, where Dixon JA said:

“The respondent contended that the admission was limited to the purposes under s 98C of the Act that resulted in payments for the soft tissue claim. Payment for the medial branch blocking procedures was not an admission of facet joint problems. Rather it was not desirable to encourage insurers not to pay for procedures that might dull the pain from the admitted injury. The admission could not be interpreted as extending to a causal relationship between the pain and the facet joint injury.

I am not persuaded by this submission, as I would not, in the absence of evidence explaining the basis for payment for the medial branch blocking procedures, accept counsel’s speculation as a probable inference. It is more probable in my view that the respondent approved that payment based on Dr Thomas and Mr Muir’s reports and would not have concluded from those reports that the procedure was recommended to dull the pain from a resolved soft tissue injury.”

4       On the following day, being 13 September 2013, a differently constituted Court of Appeal, in the matter of Transport Accident Commission v Florrimell,[2] had to consider the interrelationship of the acceptance of liability for medical procedures by the Transport Accident Commission as to whether it could constitute an admission of liability for the purposes of a serious injury application before the court. 

[2][2013] VSCA 247

5       At paragraph 44 of that decision, Tate JA stated (having been referred to Ansett Australia Ltd v Taylor):[3]

[3][2006] VSCA 171

“However, Ansett v Taylor was concerned only with the question whether the prior acceptance by the WorkCover Authority, under s 104B(2) of the Accident Compensation Act 1985, of a worker’s claim under s 98C for lump sum compensation for non-economic loss in respect of an injury resulting in permanent impairment established conclusively that the worker had sustained compensable injury. The court held that it did not so conclusively establish that a compensable injury had occurred, but such a prior acceptance should be regarded as having evidentiary value as amounting to a very significant admission by the Authority that the compensable injury was sustained.”

and at paragraph 45:

“In my view, those circumstances are far removed from the proposition that a payment by TAC for various procedures is to treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”

6       In my view, the statement by the Court in paragraph 45:

“For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis ...”

merely then provides possible bases upon which that information could be provided, and it is not intended to be an exhaustive list.

7 Accordingly, in my view, there is a tension between these two decisions as to the effect that may be elicited from the putative admissions made by various bodies within the structures of the Act and, similarly, within the Transport Accident Act.

8       In any event, Mr Curtain, Senior Counsel for the defendant, whilst conceding that there is an apparent tension between these two decisions, submits that the matter is to be decided by reference to the decision of a single Supreme Court judge, Cummins J, in the matter of Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7).[4]  In that decision, his Honour was asked to rule in a damages trial as to whether admissions could be elicited by the plaintiff to the following effect:

“The Plaintiff asks the Defendant to admit that the Plaintiff’s entitlement to payments of weekly compensation continues at the present time pursuant to s 93CC of the Accident Compensation Act 1985 because it has been determined on behalf of the Defendant that the Plaintiff has ‘no current work capacity’ and is ‘likely to continue indefinitely to have no current work capacity’ and further that the Plaintiff has participated ‘in assessments … .”[5]

[4][2006] VSC 390

[5]at paragraph 3

9       His Honour stated further, at paragraph 5:

“The arch of Mr Ingram’s submission was s 93CC Accident Compensation Act 1985 (‘the Act’) with the supports being s 20B(1)(c) and s 134AB. Mr Ingram submitted that the words ‘assessed by the Authority or self-insurer’ in s 93CC(1) and the words ‘when requested to do so from time to time by the employer or the Authority or self-insurer’ in s 93CC(3)(c) set up a scheme whereby the acts of the Authority in paying or enabling payment of a continuing sort to a worker are to be treated as acts of the employer which constitute an admission of relevant injury and incapacity. He called in aid the provisions of s 20B(1)(c) and of s 134AB to that end. He relied upon Ansett Australia Ltd & Anor v Taylor and Grech v Orica Australia Pty Ltd & Anor … .”

10      Thereafter, at paragraph 6 of the decision, his Honour said:

“As I said at T. 909 when I ruled upon the matter, I consider that the admission sought on behalf of the plaintiff is misconceived in law and unsupported in fact.”

11      His Honour went onto state, at paragraph 8:

“… the fact that the Authority pays a medical bill or makes a weekly payment does not constitute an admission by the defendant. Further, s 20B(1)(c) does not lie in aid to the plaintiff, as it concerns the powers of the Authority; nor does s 134AB, as it concerns the gateway. Although discrete sections of the Act equate the actions of one entity (such as the Authority) with another (such as an employer), those provisions are specific and for finite purposes; neither by provision or scheme is there an holistic conflation of entities or of their actions one with the other. Finally, the authorities relied upon by the plaintiff do not assist the plaintiff. Ansett Australia Ltd & Anor v Taylor concerned the interrelationship between s 98C and s 134AB, not the common law situation. Grech v Orica Australia Pty Ltd does not add anything on this point, dealing as it does with the interrelationship between s 134AB and s 134A.  … .”

12      It was conceded by both Counsel that there is no other higher Court authority contradicting his Honour Justice Cummins’ approach in that case. 

13      The plaintiff also relies upon the High Court decision in Maurice Blackburn Cashman v Brown,[6] where the High Court was dealing with questions of estoppel with respect to medical panel opinions and their extent.  Whilst not directly on point with this case, the High Court, in my view, made helpful comments which are relevant to this case.

[6][2011] HCA 22

14      At paragraph 34, the Court stated:

“At first sight, s 68(4) of the Act is cast in terms of very general application. Reference is twice made to ‘any court, body or person’. But the subsection is introduced by the expression ‘[f]or the purposes of determining any question or matter’. Those words should not be given a literal meaning. The meaning of the phrase that best accords with its context, and which should be adopted, is ‘for the purposes of determining any question or matter arising under or for the purposes of the Act’. … .”

15      Further, at paragraph 36, the Court stated:

"But none of these provisions detracts from the force of the observation that none of the causes of action on which the worker sues the employer is created by the Act. And because the relevant causes of action are not created by the Act, no question or matter arises in the action, to which the opinion of a Medical Panel could be said to relate, that can be described as a question or matter arising under or for the purposes of the Act."

16      Further, at paragraph 38, the Court stated:

“… But none of these provisions detracts from the force of the observation that none of the causes of action on which the worker sues the employer is created by the Act. And because the relevant causes of action are not created by the Act, no question or matter arises in the action, to which the opinion of a Medical Panel could be said to relate, that can be described as a question or matter arising under or for the purposes of the Act.”

17      Then finally, at paragraph 41, in support of their decision, the Court stated:

“These are reasons enough to conclude that the issue estoppels alleged in this case do not arise from the Panel’s opinion.  It is not necessary in these circumstances to consider the further questions agitated in argument about who should be regarded as the ‘parties’ immediately affected by a Panel expressing its opinion, who should be regarded as a privy of those parties, or whether the opinion expressed by a Panel about degree of impairment can or should be regarded as a ‘decision’ of some question arising between parties.”

18      For the sake of completion, the High Court considered the appeal in the matter of Wingfoot Australia Partners Pty Ltd v Kocak,[7] which decision was handed down on 6 November 2013.  The essence of that decision, in my view, was that the decision in Pope v WS Walker & Sons Pty Ltd & Anor[8] survives the decision of Maurice Blackburn Cashman v Brown,[9] such that in common law proceedings a medical panel opinion has no binding effect on subsequent common law proceedings not being a proceeding arising under the Act.

[7][2013] HCA 43

[8][2006] 14 VR 435

[9]Supra

19      I have been referred in submissions to what appears to be two conflicting decisions of the County Court, one, a ruling by his Honour Judge Jordan in a matter of Driver v CSR Viridian Limited delivered 21 May 2013, where his Honour permitted evidence of an admission of liability under s98C of the Act to be admitted before a jury. In that case, the defendant had pleaded that the plaintiff’s employment had not played a part in his injury, condition and symptoms save for perhaps being only a temporary aggravation.

20      His Honour referred to the case of Ansett Australia Ltd v Taylor[10] in support of his decision to allow the evidence in that case.  His Honour Judge Jordan had apparently not been referred to the earlier decision of Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7).[11]

[10]Supra

[11]Supra

21      The contrasting decision is of his Honour Judge Coish in David Larner v George Weston Foods Limited (Ruling No 2), a decision of this Court of 15 March 2012, where his Honour, in essence, found that admissions or putative admissions made pursuant to the Act had no place to play in the common law trial of the matter and his Honour in that case did cite in support the matter of Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7).

22      In all the circumstances, I accept the defendant’s submission that the ruling in Raeburn v Tenix Defence Systems (Ruling No 7) is the appropriate law to apply in this case and I will refuse the plaintiff’s application to lead evidence of the putative admissions as already indicated.

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