Sorrell v Transport Accident Commission
[2009] VSC 505
•9 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4341 of 2009
| SARAH JANE SORRELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 June 2009. Last written submission filed 15 June 2009 | |
DATE OF JUDGMENT: | 9 November 2009 | |
CASE MAY BE CITED AS: | Sorrell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 505 | |
---
ACCIDENT COMPENSATION – Transport accident – Judicial review – Mandamus – Conditions for an effective and timely application by an injured person to the Transport Accident Commission for an impairment determination – Commission alleging that plaintiff out of time – Held that plaintiff made an effective application within time – No sufficient discretionary basis to refuse relief – Order in the nature of mandamus granted – Transport Accident Act 1986 ss 46A(1), (1AB), (1A), (1B), (2A).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Kennan SC and Mr A S Pillay | Maurice Blackburn & Co |
| For the Defendant | Mr Jason Pizer | The Solicitor to the Transport Accident Commission |
HIS HONOUR:
Overview
This proceeding was by agreement heard together with another similar proceeding against the defendant (“the TAC”) in which judgment has been given today: Namir Vukovic v Transport Accident Commission[1]. These reasons should be read after, and in conjunction with, the reasons for decision in Vukovic.
[1][2009] VSC 497.
As in Vukovic, the main question in this case is whether the plaintiff (through her solicitors) has made an effective application, within time, to the TAC pursuant to s 46A(1A) of the Transport Accident Act 1986 (“the Act”)[2] for a determination of the degree of her impairment resulting from a transport accident. The statutory consequences of an answer either way are the same as in Vukovic.
[2]As that provision stood at the relevant time, namely between 29 November 2000 and 28 February 2005.
Again, as in Vukovic, I would answer the question in the affirmative.
Accordingly, it is unnecessary to determine the plaintiff’s alternative claim (corresponding to Vukovic’s) based on s 46A(1) of the Act.
For the same reasons as in Vukovic, I would not uphold the TAC’s submission that relief should be refused on discretionary grounds.
Therefore, the plaintiff’s application for an order in the nature of mandamus requiring the TAC to make a determination of her degree of impairment succeeds.
The parties treated Vukovic as the principal vehicle for analysing the common questions of law and principle. The TAC did not submit with any vigor that it could succeed in the present case if it failed in Vukovic[3]. These reasons are attenuated accordingly.
[3]See transcript 134, 144.
The background facts
The plaintiff was born on 15 January 1980. She was involved as a passenger in a transport accident on 9 August 2002, when she was 22 years of age. She was 5 months pregnant at the time.
She suffered a fractured pelvis on one side in the accident and spent over 10 days in the Frankston Hospital. She was treated conservatively but almost immediately developed a very large lump of necrotic fat on her right thigh. The lump has remained ever since. She claims that, as a result, she walks with a limp and leans to her right side. She says that since the accident she has suffered substantial pain in her right hip, extending down the thigh to the knee, as well as constant pain in the lower back and right shoulder blade. She claims to use medication for the pain on a daily basis, both pain-killing and anti-inflammatory. She also claims that she takes anti-depressant medication. She says that she has a disfiguring red rash on her legs and that she is depressed, fearful and anxious, suffering nightmares, flashbacks and stress about anything associated with the accident. She asserts that she would appropriately be assessed as having a whole person impairment greater than 10% as a result of the accident.
The plaintiff is and at all relevant times has been represented by the same firm of solicitors as represented Mr Vukovic, namely Maurice Blackburn Cashman, now called Maurice Blackburn. They first contacted the TAC on her behalf by letter dated 30 March 2004. Further relevant correspondence passed between them and the TAC until 9 January 2009. I will come back to it. In the meantime I should identify the relevant legislative provisions.
The legislative provisions
A detailed description of the history of s 46A of the Act is set out in Vukovic. I will not repeat it.
As mentioned, the transport accident occurred on 9 August 2002. Injury manifested itself immediately. Accordingly, having regard to the relevant transitional provisions as discussed in Vukovic, the provisions of s 46A as in force between 29 November 2000 and 28 February 2005 are applicable. Only subsections (1) and (1A) of s 46A (as in force between those dates) are relevant. Subsection 46A(1)(b) does not apply, because the plaintiff was not a minor at any relevant time. For convenience, I will set out the remaining relevant provisions of ss 46A(1) and (1A):
“46A Degree of impairment
(1)The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at—
(a)if the person was not a minor when the accident occurred—
(i)18 months after the accident; or
(ii)when the injury stabilizes —
whichever last occurs; ...
(1A)If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport accident as at 18 months after a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period of 6 years after an injury resulting from the transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application.”
The chain of correspondence
The chain of correspondence in this case was similar to that in Vukovic. It is unnecessary to set it all out in detail. I will refer to salient parts of it in the following sections of this judgment.
The pleadings and the changing positions of the TAC
The originating motion in this Court was filed on 21 January 2009. Unlike in Vukovic, the TAC does not suggest that the proceeding was commenced out of time.
As in Vukovic, the plaintiff’s complaint as set out in the originating motion was framed by reference to the TAC’s then most recent position, as set out in a letter to the solicitors dated 9 January 2009 signed by Jason Williams in his capacity as Manager, Lump Sum Compensation, of the TAC. The letter contains a useful summary of the prior correspondence. It is worthwhile setting the letter out in full.[4] I will emphasise the admissions it contains, being admissions corresponding to those made in the equivalent letter in Vukovic. Under the heading “Impairment benefit for Sarah Sorrell”, the letter read:
[4]Omitting formal parts.
“I refer to your letter dated 3 November 2008 and to previous correspondence. I apologise for the delay in response.
In our view your client is out of time to request that her impairment be determined in accordance with S46A(1A) of the Transport Accident Act (TA Act). This letter sets out the chronology and the reasons why she is out of time.
Relevant chronology
Your client’s transport accident occurred on 9 August 2002.
On 30 March 2004 your office requested that we make a determination of the degree of impairment.
We acknowledge that your office first requested an impairment determination on 30 March 2004, which fell within the 6 year period. In response to that letter, the TAC considered your client’s request. After gathering medical evidence the TAC advised you by way of a letter dated 29 August 2006 that your client did not appear likely to be entitled to an impairment benefit and therefore a determination pursuant to Section 46A was not made.
We further informed you in that letter that your client’s possible entitlement to an impairment benefit remained open and we invited your office to provide any information that may indicate an entitlement.
The TAC in its letter of 29 August 2006 clearly advised your office that your client did not appear likely to be entitled to an impairment benefit. Although you were invited to provide further supporting material the key medical evidence was not provided until November 2008, which falls after the sixth anniversary of the accident contemplated in Section 46A(1A).
For the purposes of S46A(1A) of the TA Act, the 6 year period in which she was able to request an impairment determination ended on 9 August 2008.
As the TAC did not make a determination pursuant to Section 46A as we considered your client unlikely to be entitled, and given that no other subsequent request for an impairment assessment pursuant to Section 46A(1A) was received on or before 9 August 2008 (the 6 year mark), it is our view that your client is now out of time to request an impairment assessment.”
As in Vukovic, the grounds set out in the originating motion attacked the TAC’s position that the late filing of “key medical evidence” could and did undermine the maintainability of what the TAC had acknowledged to be the plaintiff’s timely application under s 46A(1A) of the Act. Once again, the TAC would have had no arguable defence to the originating motion had the TAC merely sought to defend the reasoning in Mr Williams’ letter of 9 January 2009.
However, in its written submissions filed just prior to the hearing, the TAC abandoned Mr Williams’ reasoning and took the same line as it had taken in Vukovic. That is to say, the TAC asserted that no effective application under s 46A(1A) had been made within time.
It is common ground that in the present case time began to run under s 46A(1A) on 9 August 2002 and expired on 9 August 2008. However the plaintiff contends that she had an application on foot under that subsection well before 9 August 2008 and indeed from the time of the solicitors’ first letter of 30 March 2004. In the alternative, as indicated in amendments to the originating motion made by leave granted at the hearing without opposition, the plaintiff contends that the TAC remains under an obligation pursuant to s 46A(1) of the Act to consider whether to determine her degree of impairment.
The TAC raises the same arguments as in Vukovic in relation to the conditions necessary for an effective, timely application under s 46A(1A). It denies that those conditions are satisfied. It denies any ongoing responsibility under s 46A(1). In the alternative, it asserts that relief should be refused on the basis the plaintiff could have sought relief at VCAT.
The proper construction of s 46A(1A)
The debate between the parties in Vukovic about the proper construction of s 46A(1A) was treated as equally applicable in the present case.
In that regard, I refer to and repeat the observations and rulings contained in Vukovic under the headings “Interpretation of s 46A(1A): conditions for an effective application for an impairment benefit” and “An answer to the problem: an application with deferred effect”.
For present purposes, I would summarise the relevant effect of those observations and rulings as follows. An effective application under s 46A(1A) can be made on a prospective and conditional basis. Great strictness is inappropriate in construing the relevant communications between the parties. Generally speaking, the effective date of any prospective, conditional application that may be discerned will be the date of the “not likely decision”.
The effect of the correspondence in the present case
As in Vukovic, I am satisfied that the correspondence between the parties in the present case included or gave rise to a timely, effective application under s 46A(1A).
As in Vukovic, the plaintiff had had a general claim, including a claim for impairment benefits, on foot with the TAC since shortly after her accident in August 2002. In their initial letter of 30 March 2004 her solicitors noted that it was then more than 18 months after the accident. They referred to her injuries and her 10 days in hospital. They concluded:
“We would be grateful if you would commence the impairment assessment process to determine our client’s entitlements. Your early attention to this matter would be greatly appreciated.”
There is no evidence as to any special or technical or (generally understood) limited meaning of the expression “the impairment assessment process”. On a natural reading, it has a broad meaning, encompassing everything that might be comprised in the statutory regime for assessing the impairment of a claimant. Indeed the word “process” suggests a staged series of events. Accordingly, given that the TAC had not yet made a “likelihood” decision under s 46A(1), this letter was well capable of being seen to give rise to a prospective, conditional application under s 46A(1A). The author of the TAC’s letter of 9 January 2009 plainly saw it as an application under s 46A(1A). Indeed, the letter of 30 March 2004 is even clearer in this regard than the opening correspondence in Vukovic.
The plaintiff’s solicitors wrote twice more (on 21 May 2004 and 21 June 2004) requesting the TAC to “commence the impairment assessment process to determine our client’s entitlements”. The first, brief reply by the TAC was sent on 1 July 2004. It enclosed a copy of a longer letter of the same date which had been sent direct to the plaintiff. It was in similar terms to the TAC’s corresponding letter to the client in Vukovic. It did not expressly deny that the TAC regarded the plaintiff as having on foot an application under s 46A(1A). Indeed, as in Vukovic, it made no reference to any statutory provisions at all. As in Vukovic, it did contain the erroneous statement that the TAC was “only required to arrange medical examinations to assess the level of impairment if it appears likely to the TAC that the person will have an impairment of more than 10%”. Significantly, however, as in Vukovic, the letter requested details of the plaintiff’s current treating doctors. Thus the emphasis was on the plaintiff’s condition as at the time relevant for a s 46A(1A) application, not the time relevant under s 46A(1). The emphasis on the plaintiff’s “current treaters”, “current condition” and “current status” was repeated in further correspondence between the TAC and the solicitors (see the letters of 3 September 2004, 19 October 2004, 29 October 2004 and 14 April 2005).
By a letter dated 14 April 2005 to the solicitors, the TAC invited the solicitors to provide any further available medical reports, particularly impairment reports, so that the TAC could consider these “when making its impairment determination”. It repeated this same language in a letter to the solicitors of 2 May 2005.
This language is more evocative of s 46A(1A) than of s 46A(1).
The TAC also wrote direct to the plaintiff on 2 May 2005, with a copy to the solicitors. The TAC informed her that it would use the medical report requested “to determine whether or not you have an entitlement under [the Act]”. Again, this language evokes s 46A(1A) rather than s 46A(1), although in the same letter the TAC also told the plaintiff that when the report had been received and considered the TAC would write to her again advising “whether it appears likely that you may be entitled to an impairment benefit”.
On 16 December 2005, the solicitors wrote to the TAC saying, among other things: “We request your views as to whether you have in fact given further consideration to the assessment of our client’s impairment”. This language of the solicitors seems to assume the current existence of an application under s 46A(1A). The TAC’s reply of 29 December 2005 did not do sufficient to disabuse the reader of that assumption. It told the solicitors that a report from the plaintiff’s GP, Dr Towie, was still awaited. Otherwise it merely contained the TAC’s standard paragraph as follows:
“If you have received or are in the process of obtaining reports or other information which you believe would clearly indicate a likelihood that your client has a degree of impairment of more than 10%, please send us a copy of such material or indicate when you expect to receive it.”
On 12 January 2006 the solicitors wrote again to the TAC noting “that we have not received your further advice as to the assessment of our client’s impairment”. They received a brief reply dated 16 January 2006, which was similar to the TAC’s previous letter of 29 December 2005, again containing the standard paragraph.
The solicitors wrote again on 17 May 2006. The language used was even more strongly indicative of an assumption that an application under s 46A(1A) was on foot. They said (my emphasis):
“We refer to your letter dated 16 January 2006 advising that you were still awaiting Dr Towie’s medical report before assessing our client’s entitlement to an impairment benefit.
We note that we have not yet received a determination as to our client’s impairment and seek your urgent response.”
The TAC’s reply of 24 May 2006 advised that upon receipt of Dr Towie’s report “we will further advise your office regarding your client’s entitlement to an impairment benefit”. Otherwise it merely repeated again the TAC’s abovementioned standard paragraph.
Ultimately, on 29 August 2006, the TAC wrote to the solicitors and the client to convey what its counsel now describes[5] as its “not likely decision”. Again, as in Vukovic, I accept this description, notwithstanding that, as in Vukovic, the letter says that the TAC will not arrange impairment examinations “at this stage” and also states that the plaintiff’s possible entitlement to an impairment benefit “remains open”.
[5]Transcript 141. See also the TAC’s exhibit 1, being a letter from the TAC to Ms Sorrell dated 12 March 2007 referring to the “not likely decision made on 29 August 2006”.
Overall, I would analyse this chain of correspondence in much the same way as I have analysed the correspondence in Vukovic. Indeed, the plaintiff’s position on the evidence is even stronger in the present case. As in Vukovic, the plaintiff’s interpretation is confirmed by the admissions in the letter of 9 January 2009, although I would arrive at the same conclusion without those admissions.
In my view, the correspondence demonstrates that the plaintiff did duly apply, prior to 9 August 2008, for a determination of her degree of impairment under s 46A(1A) of the Act.
The date of the application
Applying reasoning corresponding to the reasoning in Vukovic, the date of the application should be taken to be 29 August 2006.
Conclusion on main question
I am satisfied that the plaintiff duly made an application for an impairment determination under s 46A(1A) of the Act, with an effective date of 29 August 2006. It follows that, subject to any discretionary considerations, the plaintiff is entitled to an order in the nature of mandamus requiring the TAC to determine the degree of her impairment as at 29 August 2006.
The plaintiff’s alternative claim: a duty to consider making an impairment determination
I would deal with the plaintiff’s alternative claim in the same way as I dealt with the corresponding claim in Vukovic.
Discretion: alternative remedy
Again, for the same reasons as in Vukovic, I would reject the TAC’s submission that relief should be refused in the exercise of the Court’s discretion.
Orders
Subject to any submissions as to the appropriate form of order or as to costs, I propose to make orders as follows:
(1)There be an order in the nature of mandamus requiring the defendant to determine the degree of impairment of the plaintiff, pursuant to s 46A(1A) of the Transport Accident Act 1986 as in force immediately after 29 November 2000, on the basis that the date of the application within the meaning of that subsection was 29 August 2006.
(2)The defendant pay the plaintiff’s costs of this proceeding, including reserved costs.
0