Taggart v Bohlooli and Anor (Ruling)
[2021] VCC 1251
•3 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| MEDICAL LIST |
Case No. CI-18-05312
| THERESE TAGGART | Plaintiff |
| v | |
| NEDA BOHLOOLI | First Defendant |
| and | |
| TEENBEC PTY LIMITED (t/as CROYDON SPORTS INJURY CLINIC) (ACN 006 062 317) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2021 | |
DATE OF RULING: | 3 September 2021 | |
CASE MAY BE CITED AS: | Taggart v Bohlooli & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1251 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application by first defendant for leave to amend defence and preliminary determination
Legislation Cited: County Court Civil Procedure Rules 2018; Civil Procedure Act 2010 (Vic); Wrongs Act 1958 (Vic); Transport Accident Act 1986
Cases Cited:Price v Spoor [2021] HCA 20; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4; Dunin v Harrison (2002) 8 VR 596; Transport Accident Commission v Jewell [1995] 1 VR 300; Gennimatas v Transport Accident Commission (2002) 5 VR 547; Commonwealth v Verwayen (1990) 170 CLR 394; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Hynes v Hynes (2007) 15 VR 475; Transport Accident Commission v Iacuone [1998] VSC 192; Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Ruling: First defendant’s application to amend its defence granted. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Arnold Thomas & Becker |
| For the Defendants | Mr R Kumar | Lander & Rogers |
HER HONOUR:
1The plaintiff seeks damages in respect of an injury she claims she suffered on 19 January 2016 while egressing from a treatment table during physiotherapy treatment provided to her by the first defendant, at the second defendant’s clinic.[1] In this incident, the plaintiff claims she injured her lower back, for which she later required surgery.
[1]The plaintiff obtained a default judgment against the second defendant on 8 October 2020 but has not sought to have her damages assessed in accordance with that Order
2The plaintiff had previously been injured in a transport accident on 25 April 2013 (“the transport accident”). In this accident, the plaintiff suffered an injury to her cervical spine, for which, from time to time thereafter, she received treatment at the second defendant’s clinic. The Transport Accident Commission (“TAC”) funded this physiotherapy treatment, including the treatment provided on the date that the injury, the subject of this claim, occurred.
3The first defendant initially denied the plaintiff’s ability to claim for non-economic loss damages, on the basis that she had not sustained significant injury, as defined by the Wrongs Act 1958 (Vic). However, the first defendant now seeks to defend this claim on the basis that the plaintiff’s ability to recover common law damages is governed by the provisions of the Transport Accident Act 1986 (“the TAA”). In addition to seeking leave to amend its Defence in this way, the first defendant also seeks an order that there be a preliminary determination of this issue, pursuant to rule 47.04 of the County Court Civil Procedure Rules 2018 (“the Rules”).
4The plaintiff denies that the physiotherapy treatment provided on 19 January 2016 was for injuries she suffered in the transport accident, and thus submits that the provisions of the TAA do not apply to this claim. She also alleges that in the event that the TAA provisions do apply, the treatment provided constitutes an intervening act. In the alternative, the plaintiff submits that the first defendant is estopped from amending its Defence, as it had previously required the plaintiff to satisfy the statutory threshold under the Wrongs Act, by referring her to the Medical Panel. Notwithstanding those submissions, the plaintiff submitted that in the event that I am satisfied the amendment to the Defence should be allowed, it is not a matter suitable for preliminary determination as it involves a substantive factual dispute.
5For the reasons that follow, I will grant the first defendant leave to amend its Defence. However, as the success, or otherwise, of that Defence can only be determined after a full assessment of the factual circumstances, I am not presently satisfied that this issue should be determined as a preliminary point.
Chronology
6To understand the basis for the first defendant’s summons, and the plaintiff’s opposition, it is necessary for me to detail the factual background relevant to this claim. Such detail is obtained from the extensive affidavit material filed by both parties, namely: affidavits of the first defendant’s solicitor, Ms Loren De Bortoli, affirmed on 7 July, 20 July and 5 August 2021; affidavit of the plaintiff’s solicitor, Mr Matthew Fitzgerald, affirmed on 4 August 2021 and an affidavit of the first defendant affirmed on 16 August 2021
7On 25 April 2013, the plaintiff was injured the transport accident.
8On 28 October 2013, the plaintiff completed a Claim for Compensation in respect of this accident and claimed she suffered a “whiplash injury to neck”, “backache” and “shoulder stiff”. This claim was subsequently accepted by the TAC.
9On 24 November 2014, the plaintiff underwent a cervical fusion. This was paid for by the TAC.
10On 15 June 2015, the plaintiff requested a serious injury certificate from the TAC, in relation to a neck injury which she alleged was sustained in the transport accident. In her serious injury affidavit sworn on that day, the plaintiff deposed to symptoms in her neck, which she said also extended into her left arm and hand, as well as “electric shock like pains” which she said travelled down her back and in to her legs, feet and toes.
11On 26 June 2015, the TAC granted the plaintiff’s request for a serious injury certificate in relation to the injury sustained as a result of the transport accident.
12In December 2015, the plaintiff received a CT-guided back injection.
13On 19 January 2016, the plaintiff attended on the first defendant for physiotherapy treatment. Although it appears from tendered material that this was paid for by the TAC, there is a factual dispute as to what condition this treatment was for. The plaintiff claims it was not for her injuries suffered in the transport accident.
14The first defendant has provided an affidavit, in which she states the following in respect of the treatment session the subject of this claim:
“… I commenced treating the Plaintiff’s neck and thoracic area, where she also had symptoms. Patients with neck problems often have symptoms such as stiffness and reduced movement in the thoracic area, as well as in the neck. The neck and thoracic area are biomechanically related; as such, treatment for a neck problem may require treatment to both the neck and thoracic area.
The incident which is the subject of this claim occurred in the context of such treatment.”
15The plaintiff objects to the tender of this affidavit, and submits that if it were admitted, she seeks to reserve her right to cross-examine the first defendant in respect of its contents.
16On 7 March 2016, the plaintiff underwent an intervertebral disc microsurgical discectomy, spinal rhizolysis surgery and laminectomy surgery. This was paid for by the TAC.
17On 28 November 2018, the plaintiff’s Writ and Statement of Claim was issued in this matter.
18On 11 December 2019, the plaintiff provided the first defendant with the prescribed material and a certificate of assessment, pursuant to the requirements of the Wrongs Act.
19On 6 February 2020, the plaintiff’s solicitors served on the first defendant, copies of the plaintiff’s medical records.
20On 7 February 2020, the plaintiff was referred by the first defendant to the Medical Panel. This referral specifically referenced the plaintiff previously suffering injures in the transport accident.
21On 3 March 2020, the plaintiff’s Writ and Statement of Claim was served on the first defendant.
22On 26 May 2020, the plaintiff was examined by the Medical Panel.
23On 30 June 2020, the first defendant filed and served a Defence which alleged that, insofar as the plaintiff claimed damages for non-economic loss (as defined by the Wrongs Act), the plaintiff is not entitled to recover such damages as any injury sustained by the plaintiff is not a significant injury.
24On 9 July 2020, the first defendant issued numerous subpoenas in this matter, including one to the TAC.
25In late November 2020, the first defendant obtained a copy of the TAC’s records in respect of the plaintiff.
26On 19 January 2021, the Medical Panel delivered their determination, concluding that the plaintiff was suffering from persisting lumbar spine dysfunction following an aggravation of lumbar spondylosis, with radiculopathy, surgically treated, relevant to the claimed injuries. The Panel further determined that the degree of whole person impairment resulting from the injury to the plaintiff alleged in the claim did satisfy the threshold level.
27On 31 March 2021, the first defendant’s solicitors wrote to the plaintiff’s solicitors and stated that it considered the plaintiff was obliged to comply with the statutory gateway imposed by the TAA and not the Wrongs Act.
28On 14 April 2021, the plaintiff’s solicitors wrote to the first defendant’s solicitors and disputed that the TAA applied, and, in the alternative, submitted that the first defendant’s treatment constituted a novus actus interveniens.
29Further correspondence passed between the parties, as well as there being a directions hearing in this matter before Judicial Registrar Gurry on 8 July 2021. However, as the parties were not able to reach agreement on how the issues raised by the first defendant be resolved, on 21 July 2021, the first defendant issued a summons and sought the relief which is the subject of this ruling.
First Defendant’s submissions in respect of its proposed amended defence
30The first defendant’s primary submission was that its amendment was not technically required, as the TAA gateway, if applicable, was a threshold imposed by statute, which is sufficient to extinguish a plaintiff’s common law rights if not fulfilled. As such, it was different to that of a limitations defence, which is a bar to the remedy sought. In this regard, I was referred to the recent High Court decision of Price v Spoor,[2] in which it was noted that there is a distinction between provisions that offer a defence based on the expiration of a given time period, and those which extinguish the claim or title of a plaintiff.[3]
[2] [2021] HCA 20
[3] Ibid at paragraph [117]
31The first defendant submitted that notwithstanding its submission that it need not plead this particular defence, it was seeking to do so for the benefit of the parties and the Court as it identifies it as an issue in dispute.
32The first defendant submitted that an amended defence should only be refused if it is futile, obviously bad in law or has no real prospects of success.[4]
[4]O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [13]; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 at paragraphs [41] and [47]
33The first defendant submitted that s93(1) of the TAA applies in circumstances where, at the time the plaintiff suffered her injuries, the subject of this claim, she was receiving treatment for her transport accident injury, and that therefore there is a proper basis to its proposed amended defence.
34The first defendant referred me to the authority of Dunin v Harrison,[5] in which the Court of Appeal considered the connection between the transport accident and an injury suffered as a result of treatment. The first defendant acknowledged that this decision was made prior to the current amendments to the TAA, which require that the relevant injury is one “directly” caused by the driving of the motor vehicle.
[5](2002) 8 VR 596
35However, the first defendant submitted that there is a sufficient chain of causation in the circumstances of this case, such that the TAA applies. In further support of this submission, the first defendant also referred me to cases including Transport Accident Commission v Jewell[6] and Gennimatas v Transport Accident Commission.[7]
[6][1995] 1 VR 300
[7](2002) 5 VR 547
36Therefore, for those reasons, the first defendant submitted that it should be permitted to amend its Defence in the way proposed.
Plaintiff’s submissions in respect of the proposed amended defence
37The plaintiff objected to the proposed amendment on three grounds: that the first defendant ought be estopped; the proposed amendment is too late in time, and that the proposed amendment does not have any real prospect of success. I will deal with these in turn, and explain why, in my view, each ground must fail.
Estoppel
38The plaintiff submitted that the first defendant ought be estopped, as by its previous conduct in this proceeding, it had consented to the relevant jurisdiction, that being this case was governed by the Wrongs Act and not the TAA. It was submitted that the first defendant ought be barred from amending its Defence now, as any defence under the TAA should have been pleaded in a timely manner and it was not, such that the plaintiff has now suffered detriment. In support of this submission, the plaintiff relied upon The Commonwealth v Verwayen.[8]
[8] (1990) 170 CLR 394
39However, I accept the first defendant’s submission in reply, being that as the TAA gateway is a substantive requirement that goes to jurisdiction, it is not a matter that a defendant can be estopped from pleading. Any prejudice suffered by the plaintiff from the first defendant’s failure to plead this earlier in time, can possibly be cured with a cost order.
Lateness of the proposed amendment
40The plaintiff submitted that it was contrary to the Civil Procedure Act and the principles outlined in AON Risk Services Australia Pty Ltd v Australian National University[9] to permit such an amendment at this late stage. The plaintiff emphasised that no reason was offered for this defence being raised only now, when the first defendant had extensive material about the transport accident available to it during 2020.
[9] (2009) 239 CLR 175
41The case management of this Court is focused on promoting and ensuring the just resolution of the real issues in a proceeding and the timely disposal of the proceeding at a cost affordable to the parties.
42I am satisfied that the facts of this case raise a real issue as to whether the plaintiff’s claim for damages is governed by the TAA gateway. I accept that this potential issue could have been identified by either party, and possibly resolved, far earlier in time than now. I note that both parties are represented by experienced litigators. If the TAA gateway is found to apply, it is indeed arguable that this is a matter that the plaintiff herself should have addressed earlier in time.
43Notwithstanding my and the plaintiff’s frustration at the late timing of this proposed amendment by the first defendant, I am not satisfied this is a sufficient basis to shut the first defendant out from making this amendment. As I have previously stated, any prejudice suffered by the plaintiff arising from the first defendant’s failure to plead this earlier in time, can possibly be cured with a cost order.
No real prospect of success
44The plaintiff contends that the proposed amendment has no real prosect of success. It was submitted therefore, the amendment should not be allowed, pursuant to rule 23.01 and in accordance with the principles outlined by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[10] I note this authority was in relation to a summary judgment and the Court of Appeal considered what was required under s63 of the Civil Procedure Act. The Court concluded that the term “no real prospect of success” is more liberal than the “hopeless” or “bound to fail” test.
[10] (2013) 42 VR 27
45I note that the principles contained in Lysaght are consistent with the authorities which the first defendant referred me to.
46There were several grounds relied upon by the plaintiff to support its contention that the proposed amendment had no real prospect of success. These submissions were essentially two-fold – the first was that the plaintiff’s injury was not directly caused by the driving of a motor vehicle and therefore the TAA gateway does not apply. In support of this, the plaintiff also referred to Dunin v Harrison,[11] as well as the decisions of Hynes v Hynes[12] and Transport Accident Commission v Iacuone.[13]
[11]Supra
[12] (2007) 15 VR 475
[13] [1998] VSC 192
47It is not necessary for me reconcile this issue now, nor is it necessary for me to consider the very detailed submissions of both parties in respect of the applicability of the TAA gateway. I am satisfied that a determination of the relevant facts is required before any decision in respect of the applicability of the TAA gateway can be made.
48In the alternative, the plaintiff submitted that if the Court was satisfied that the TAA applies, then first defendant’s treatment constituted a novus actus interveniens. Further, it was contended that from the perspective of the negligent driver in the plaintiff’s transport accident, it was not reasonably foreseeable that the plaintiff would have suffered injury in the way that she now claims. In support of this, the plaintiff referred me to the High Court decision in Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd,[14] and submitted that this case stood for the proposition that when there are two injuries with two unrelated acts of negligence and two separate and distinct torts, it is untenable to argue that the first tortfeasor is liable in whole or in part for the second unrelated tort and consequent damage.
[14](1975) 132 CLR 323
49I note that Dillingham Constructions was decided prior to the High Court’s decision in Mahony v J Kruschich (Demolitions) Pty Ltd,[15] which held that the original tortfeasor can be held liable for damage suffered as a result of a subsequent tort, if that tort and its consequences are themselves foreseeable. In Mahony, it was expressly held that where an injury is exacerbated by medical treatment, the exacerbation can be regarded as a foreseeable consequence, as the original injury carried with it a risk that medical treatment might be negligently given.
[15](1985) 156 CLR 522
50In response to this submission, the first defendant noted that in the current pleadings, there were no specific allegation by the plaintiff of:
(a) any gross negligence on the part of the first defendant; nor
(b) any act or omission of the first defendant which is outside the bounds of what any reputable medical practitioner might prescribe; nor
(c) any act which was so obviously unnecessary or improper that it was in the nature of a gratuitous aggravation of the injury or extravagant from the point of view of medical practice.
51However, given that I am permitting the first defendant to amend its Defence, it can be anticipated from the plaintiff’s submissions that, in addition to possibly filing a Reply, she will seek leave to amend her Statement of Claim to raise such allegations.
52While there is some merit in the plaintiff’s submission that the first defendant’s Defence will fail for the reasons detailed above, the submissions do not compel me to find that there is no real prospect the first defendant will be successful in its proposed defence. Far from being fanciful, and dependent upon the facts to be determined, I consider there is a real prospect of such a defence succeeding.
53In view of the above, I will grant the first defendant leave to amend its Defence in the manner sought.
First defendant’s submissions in respect of the preliminary point
54Having ruled that the proposed amendment be allowed, it is now necessary for me to consider whether this defence be heard and determined as a preliminary point, under rule 47.04. This rule allows the Court to order that:
(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;
(b) different questions be tried at different times or places or by different modes of trial.
55The advantages of a preliminary hearing, in an appropriate case, were discussed by Justice J Forrest in Wadley v Ron Finemore Bulk Haulage Pty Ltd.[16] In this case, there was an issue as to whether a Victorian worker, who was injured in New South Wales, was disentitled to compensation under New South Wales law. Justice Forrest ruled that as that jurisdiction issue was a genuinely discrete issue, which required limited evidence, it was “in the interests of both justice and the efficient conduct of court business to determine this point before the liability and quantum of the trial”.[17]
[16] [2013] VSC 5
[17] Ibid at paragraph [27]
56In its written submissions, the first defendant noted that it sought the invocation of rule 47.04 in its summons, on an understanding that there would be agreement between the parties that at the time the plaintiff was receiving, or was to receive the physiotherapy treatment the subject of this claim, she was doing so in respect of a transport accident injury. However, it was conceded by the first defendant that the affidavit material filed in response to the summons, indicated that there was factual dispute between the parties in respect of both matters, and therefore, the Court may be reluctant to order the determination of a preliminary question.
57To determine whether the plaintiff’s injury arose directly out of the transport accident, I consider it is likely to require evidence from the plaintiff, the first defendant and possibly other lay and expert witnesses.
58The plaintiff submitted that it may be premature to consider the request for a preliminary hearing, until such time as the plaintiff has had the opportunity to consider whether to file and serve a Reply, as the factual dispute may then become clearer. That may be so; however, on the material before me, and having considered the lengthy submissions of counsel, I am not persuaded to order that there be a preliminary determination of this issue.
Transferral to the Medical List
59In addition to the ruling above, in accordance with rule 34A.11, I also order that this matter be transferred to the Medical List. The plaintiff alleges, inter alia, that the defendants were negligent for failing to provide physiotherapy treatment safely and failing to provide assistance to and from the treatment table.
60The Medical List consists of any proceeding that includes a claim for damages in respect of death or bodily injury resulting from medical or the like treatment or advice given in respect of any physical or mental condition.[18] It is appropriate for any further pre-trial management and orders to be made in accordance with the expectations of that List.
[18] Rule 34A.04(4) of the County Court Civil Procedure Rules 2018
Costs order
61The plaintiff seeks the costs of, and associated with, the proceedings to date, on an indemnity basis. This order is sought on the basis of the first defendant’s delay in raising this proposed amended defence and previously referring the matter to the Medical Panel. It submitted that the first defendant has failed to explain why it litigated in the way that it did in 2020, and failed to explain what led to its change of position in 2021, namely the invocation of the TAA gateway defence. In accordance with the CPA and the principles outlined in AON,[19] the plaintiff submitted the first defendant should be liable for such costs.
[19] AON Risk Services Australia Ltd v Australian National University (supra)
62The first defendant submitted that pursuant to rule 63A.17, costs of an amendment are ordinarily the parties’ costs in the proceeding. However, a party which opposes leave to amend on a misconceived basis may be ordered pay the costs of the application.[20]
[20] ThyssenKrupp Materials Handling Pty Ltd v Trans Global Projects Pty Ltd (No 1) [2014] FCA 817
63In respect of the plaintiff seeking the costs of the proceedings, the first defendant submitted that until the question of the proper gateway has been determined, it cannot be known whether the costs incurred in the Medical Panel referral were unnecessary. I accept that this is so.
64I also accept that if it is determined that the TAA gateway applies, it follows that both parties have been conducting this litigation on an erroneous basis. I note that the plaintiff initiated the proceedings and provided the first defendant with the prescribed material and a certificate of assessment, pursuant to the requirements of the Wrongs Act.
65For those reasons, I consider that it is premature to make a costs order at this stage. I will reserve the costs of both the summons and the amendment.
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