Sehic v Toyota Motor Corporation Australia Limited (Ruling)
[2016] VCC 40
•2 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00268
| SUADA SEHIC | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2016 | |
DATE OF JUDGMENT: | 2 February 2016 | |
CASE MAY BE CITED AS: | Sehic v Toyota Motor Corporation Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 40 | |
RULING
---
Subject:PRACTICE AND PROCEDURE
Catchwords: Serious Injury Application – defendant seeking referral of medical question to Medical Panel – application of the Workplace Injury Rehabilitation and Compensation Act 2013
Legislation Cited: Accident Compensation Act 1985; Workplace InjuryRehabilitation and Compensation Act 2013
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola (unreported) VSCA, 16 November 2012; Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Monteiro v Tiago Enterprises Pty Ltd (Ruling) [2012] VCC 362; Cardona v Bacchus Marsh Mega Fresh Pty Ltd [2015] VCC 1326; R v Smith (1995) 1 VR 10
Judgment:Relief granted to the defendant pursuant to s274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. Medical questions to be referred to the Medical Panel.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Paul Czarnota | Patrick Robinson & Co |
| For the Defendant | Ms R Kaye | Minter Ellison |
HER HONOUR:
1 During the course of her employment with the defendant as a process worker from October 1999, the plaintiff suffered spinal injuries and injuries to both shoulders. She later developed depression (“the work injuries”).
2 On 16 January 2015, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Accident Compensation Act 1985 to bring common law proceedings in relation to the work injuries.
3 This is an application by the defendant for the referral of certain questions, said to be medical questions,[1] to a Medical Panel pursuant to the provisions of s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).
[1]Defined in s3 of the WIRCA
4 Section 274 of the WIRCA provides:
“274 Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court’s own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b)if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party’s intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a) so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b) so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5)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.”
5 The proposed medical questions were set out in a Notice of Request pursuant to s274(1)(b) of the WIRCA dated 23 January 2016. Those questions related to the nature of the plaintiff’s current condition relevant to work duties and whether the plaintiff’s employment with the defendant from October 1999 onwards was a cause thereof.
6 Counsel for the plaintiff did not dispute the proposed questions were “medical questions” pursuant to the Act relating to diagnosis and causation.
7 The parties had been previously advised the s134B hearing was set down for 24 February 2016. The Court was, therefore, notified by the defendant of its intention to refer the matter to the Panel more than 14 days prior to the date listed for hearing, thus complying with s274(1)(b)(ii)) of the WIRCA.
8 Counsel for the plaintiff opposed the questions going to the Medical Panel on the basis of s274(3) and s274(5) of the WIRCA.
9 No affidavit material was relied on by either party and short submissions were made orally. Mr Jones’ various medical reports were provided to the Court, as were the proposed medical questions contained in the Notice of Request dated 23 January 2016 and a Joint Statement pursuant to s304(a)of the WIRCA with a schedule of attachments.
The law
10 It is a clear legislative intention to give a preference to Panel determinations on the plain reading of s274 of the WIRCA, because reference to the Panel is mandated unless the exceptions apply.[2]
[2]United Doormakers (Vic) Pty Ltd v Amendola (VSCA, unreported, 16 November 2012) per Priest JA at paragraph 11
11 In Wingfoot Australia Partners Pty Ltd v Kocak,[3] the High Court explained the function of the Medical Panel.
[3](2013) 252 CLR 480
12 In particular:
“The function of a Medical Panel’s neither arbitral nor adjudicative: it’s neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[4]
[4](Supra) at paragraph 47
13 The plaintiff’s first submission was that the proposed referral was an abuse of process pursuant to s274(3) of the WIRCA, in that the application was made late. It is accepted, however, that the referral was made within the time prescribed by the WIRCA.
14 Counsel for the plaintiff relied on the decision of Judge Misso in Cardona v Bacchus Marsh Mega Fresh Pty Ltd[5] where his Honour refused a referral where he found it “could have been made a lot earlier and at a time when the plaintiff’s solicitors had not committed themselves to a great deal of industry in the preparation of the plaintiff’s claim”.[6]
[5][2011] VCC 1483
[6](Supra) at paragraph 35
15 In that case, Judge Misso commented that the method he should employ to determine whether an abuse of power arose was one in which he was to examine the processes of the Court and determine whether they had been used fairly in order to avoid the erosion of public confidence in those processes.[7]
[7]See also Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362 at paragraph 5
16 It was submitted by counsel for the plaintiff that the defendant was aware from mid-2014 of the nature of issues in dispute and only advised of its intention to refer the matter to the Panel in December 2015, filing the formal request on 23 January 2016, one month before the proposed hearing date.
17 Further, in the present application, it was submitted the proposed referral would result in delay and that the ultimate resolution of the serious injury application would be delayed, with the plaintiff incurring further costs of up-to-date examinations before the matter ultimately came to hearing.
18 Whilst the plaintiff had provided a number of medical reports on service of the s134AB application in September 2014, Particulars of Injury detailing a spinal impairment, a bilateral impairment and a psychiatric impairment were served in late April 2015.
19 A settlement conference took place in December 2015, following which the defendant indicated its intention by letter dated 18 December 2015 to refer the matter to the Medical Panel. By that stage, there were a number of recent medico-legal reports that had been served by the plaintiff (Professor Bittar - 5 November 2015; Mr Myers - 22 September 2015 and Mr Brearley - 21 October 2015). Mr Jones, who had examined the plaintiff on behalf of the defendant, reported in November and December 2015.
20 Prior to service of those reports on the plaintiff’s behalf, the only medico-legal opinion as to causation was Professor Bittar’s report of 29 April 2013. Other reports which had been exchanged were from the plaintiff’s treating practitioners and did not address this issue in any detail.
21 Before the service of the late 2015 reports by the plaintiff’s solicitors, I accept that the state of the medical evidence in this matter was such that the defendant was not in a position to make an informed decision as to whether a referral to the Panel should be made.
22 In my view, there was no abuse of process in making the recent referral. The defendant was entitled to know the full ambit of the plaintiff’s application before referring medical questions to the Panel and did so within the time limits prescribed by the WIRCA.
23 As Judge Misso stated in Cardona:[8]
“A conclusion that the conduct of a party amounts to an abuse of process should not be arrived at lightly. Indeed, the authorities demonstrate that such a conclusion should be arrived at only in exceptional circumstances.”[9]
[8]Cardona v Bacchus March Mega Fresh Pty Ltd (supra) at paragraph 28
[9]R v Smith (1995) 1 VR 10 at 14 per Brooking J
24 I am not satisfied the circumstances in this case constitute an abuse of process.
25 Whilst there will be some delay and perhaps the need for up-to-date medical reports before the matter returns to the Court for determination of the substantive serious injury issue following the Panel’s decision, such costs will not be great and the recent introduction of the Serious Injury Expedited List will enable the matter to be re-listed at the earliest possible time to reduce legal costs and expenses.
26 Counsel for the plaintiff also submitted there were specific factors in the present application that invoked the operation of s274(5) of the WIRCA.
27 Section s274(5)) of the WIRCA provides:
“(5) 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.”
28 Both counsel agreed there was no suggestion of any relevant pre-existing condition suffered by the plaintiff and that this application did not involve issues of the plaintiff’s credit to any real extent.
29 However, counsel for the plaintiff submitted that the opinion of Mr Ian Jones, the orthopaedic surgeon relied upon by the defendant, should be subject to cross-examination in the Court and that this course was unavailable if the matter was considered by the Medical Panel.
30 It was submitted that Mr Jones, who concluded that the plaintiff’s work duties were not causative of her injury, did so on the basis of two DVDs which did not set out the full extent of the plaintiff’s work duties.
31 Having initially examined the plaintiff in August 2012, Mr Jones concluded the nature of the plaintiff’s work duties had the capacity to exacerbate her neck and lower back condition.
32 Later that year, having been provided with two DVDs which showed the type of duties the plaintiff performed with the defendant, Mr Jones did not believe those duties could have caused or aggravated the plaintiff’s spinal or shoulder conditions. Mr Jones confirmed this view following further examination in November 2015.
33 Counsel for the plaintiff submitted these DVDs showed only part of the duties the plaintiff was required to perform, as a result of which she suffered injury, and that there should be an opportunity for Mr Jones to be cross-examined at Court as to the full extent of those work duties and have the opportunity to give his opinion in relation thereto.
34 I do not accept that this is a reason to refuse the referral application. At the Medical Panel hearing, the plaintiff will be able to explain to the Panel the nature of the duties undertaken by her. Having heard this evidence, the Panel will be able to decide the issue of causation for itself, taking into account the film, the plaintiff’s evidence, and any other relevant evidence. Mr Jones’ opinion could then be considered, like any other report before the Panel in light of this further evidence.
35 Having found there to have been no abuse of process and that the proposed questions do not come within s274(5) of the WIRCA, I grant the relief sought by the defendant and order, pursuant to s274(1) of WIRCA, that the proposed medical questions be referred to the Medical Panel to provide an opinion in accordance with that Act.
- - -
0
8
0