Taseska v Carus (No 2)
[2017] VSC 707
•24 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABLITY LIST
S CI 2015 04680
| SILVANA TASESKA | Plaintiff |
| v | |
| HENRY JOSEPH CARUS | First Defendant |
| HENRY CARUS & ASSOCIATES (The Trustee for HCA Trust ABN 97 872 505 795) | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 November 2017 |
DATE OF JUDGMENT: | 24 November 2017 |
CASE MAY BE CITED AS: | Taseska v Carus & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 707 |
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PRACTICE AND PROCEDURE – Application by the defendants for summary judgment – Failure to comply with previous orders regarding pleading – Whether proceeding should be dismissed by reason of plaintiff’s failure to properly articulate claim – Whether abuse of process arises out of plaintiff’s statement of claim – Application of Civil Procedure Act 2010 (Vic), ss 62, 63 and Supreme Court (General Civil Procedure) Rules 2015, Order 23 – Summary judgment granted in respect of some claims on the basis that they are an abuse of process, or have no prospects of success.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendants | Mr C G K Madder | DLA Piper Australia |
HER HONOUR:
In this proceeding, Ms Taseska, who is self‑represented, brings claims for negligence and/or breach of duty against her former solicitor, Henry Carus and his firm, Henry Carus & Associates (‘Carus’). The claims arise out of her engaging Carus to act for her in two personal injuries proceedings in this Court against her former employer (‘MSS Security’). Details of Ms Taseska’s claims and the outcome of the personal injuries proceedings can be found in the judgment of J Forrest J of 20 May 2016.[1] In short, J Forrest J dismissed Ms Taseska’s claim for psychological injury (‘stress claim’) on the grounds that MSS Security had not breached any duty of care owed to her, and awarded $250,000 for damages for pain and suffering arising out of an injury to her knee (‘knee claim’). Further, on 18 August 2016 J Forrest J found that Carus was entitled to a ‘fruits of judgment’ lien over the damages payable to Ms Taseska by MSS Security.
[1]Taseska v MSS Security Pty Ltd [2016] VSC 252.
The procedural history of this proceeding, and the claims originally made by Ms Taseska in this proceeding, are set out in some detail in a previous ruling I delivered on 16 March 2017 in response to a summons originally issued by Carus on 16 December 2015, and amended on 30 January 2017 (‘16 March ruling’).[2] Also before me on that occasion was an application by Ms Taseska to file and serve an amended statement of claim.
[2]Taseska v Carus [2017] VSC 113. The authorities relevant to whether Ms Taseska’s claims should be dismissed on the grounds that their pursuit would be an abuse of process are also canvassed in this judgment.
On 16 March 2017, I made the following orders (‘16 March orders’):
1. The statement of claim dated 3 September 2015 be struck out.
2.There be judgment for the defendant in relation to the claims in relation to and said to arise out of the failure of the defendants to disclose to her the undisclosed offer (‘undisclosed offer claims’), and the claims for psychological/psychiatric injury by reason of the conduct of the defendants (‘psychiatric injury claims’).
3.The plaintiff’s application by her summons filed on 16 January 2017 to file and serve an amended statement of claim in the form which is exhibit ‘MKC-4’ to the affidavit of Michael Kevin Cain sworn 27 January 2017 is refused.
4.Any application by the plaintiff to file and serve an amended statement of claim must be filed and served by 13 April 2017, and must:
(a)not include the undisclosed offer claims and the psychiatric injury claims;
(b)in relation to any claim for loss of the value of the stress claim and the loss of value of the knee claim (including any failure to apply for serious injury certificate with economic loss), specify what conduct of the defendants was said to be negligent, and how that conduct affected the outcome of each of the stress claim and the knee claim; and
(c)in relation to the allegations concerning the payment of impairment benefits, specify whether it is alleged that the defendants have failed to pass on impairment benefits payable to her, or whether the defendants failed to obtain higher benefits, or both?
5.For the avoidance of doubt, these orders and the reasons delivered this day do not preclude the defendants from asserting that Ms Taseska’s claims should be dismissed (or not allowed to proceed, as the case may be) on the grounds that they are an abuse of process.
In the 16 March ruling, I held, relevantly, as follows:
(a)insofar as Ms Taseska’s claims relate to the defendants’ failure to disclose the undisclosed offer, I agree that by reason of the outcome of the personal injuries proceeding, Ms Taseska has suffered no loss by reason of the loss of the opportunity to accept the undisclosed offer. As such, her claims in that regard have no real prospects of success. Further, by reason of the passage of events, it is not necessary for me to determine whether an issue estoppel arises out of the decision of Wood AsJ on 26 June 2015;
(b)I agree that Ms Taseska’s claim for psychological and/or psychiatric injury said to have arisen out of the defendants’ conduct is not capable of being pursued by reason of the determination of the medical panel. I do not accept Ms Taseska’s submissions that the medical panel decision was somehow invalid. She is bound by the determination of the medical panel;
(c)insofar as Ms Taseska’s claims focus upon the conduct of the defendants in preparing the case for trial (including, among other things, their failure to make a serious injury application in respect of past and future economic loss, and their refusal to hand over the file) it is not possible, in the absence of a proper pleading, to conclusively identify whether Ms Taseska’s claims are an abuse of process; and
(d)in relation to the question of Ms Taseska’s claims with respect to impairment benefits, the evidence is a little confusing. It is unclear whether Ms Taseska is alleging that impairment benefits were paid by the insurer, but she never received the money, or that she should have received a greater payment if the defendants had not breached their duty, or both? Once again, a proper pleading will illuminate matters.
This is not a case such as Knorr v CSIRO (No 3)[3] where the Court ought reach the view that the plaintiff is incapable of preparing a pleading disclosing a real cause of action, at least not at this stage. Further, in the absence of any res judicata or issue estoppel, the Court must be cautious to dismiss a proceeding on the grounds that it is an abuse of process in the absence of some real clarity about the conduct is said to have caused the plaintiff loss and damage.
[3]Ibid [33]–[34].
Further, in relation to whether Ms Taseska’s claims in this proceeding amount to an abuse of process, I stated as follows:
While it is possible, from the terms of the proposed amended statement of claim and the affidavit in support of her application, to form the impression that Ms Taseska does seek to re‑litigate the personal injuries proceeding, there needs to be much greater clarity by Ms Taseska as to how she actually puts her case (albeit recognising the particular burden she suffers as a self-represented litigant). Only then is it possible to identify with the requisite degree of satisfaction that the conduct is so closely connected with the conduct of a concluded trial such as to give rise to, say, a defence of advocate’s immunity, or, that by seeking to re‑litigate the outcome of a concluded proceeding, that allowing the claim to continue would bring the administration of justice into disrepute, and therefore the claim is an abuse of process.[4]
[4]Ibid [36].
As for the adequacy of her statement of claim, I observed as follows:
To elaborate further on the above, inherent in the proposed amended statement of claim and Ms Taseska’s affidavit is an allegation that if the defendants had not been negligent in preparing for trial (whether it be by failing to make an application for serious in jury certificate for economic loss in respect of the knee claim, or by failing to make a more timely application to amend her statement of claim), Ms Taseska would have achieved a better outcome at the trial of the personal injuries proceedings than she did. The proposed amended statement of claim fails to make the necessary connection between the defendants’ alleged conduct and her failure to achieve what she says is the full value of her claims in the personal injury proceeding.[5]
[5]Ibid [38].
On 19 July 2017, Ms Taseska filed a summons seeking leave to file an amended statement of claim, although the proposed amended statement of claim was filed on 1 June 2017. For reasons beyond the control of the parties and/or the Court, the hearing of the summons was listed for 3 October 2017, and was subsequently adjourned to 8 November 2017 owing to the late service of Carus’ written submissions. On 21 September 2017, Carus filed and served a summons seeking the following orders:
1.Pursuant to Section 62 and/or 63 of the Civil Procedure Act 2010 (Vic) and/or pursuant to Order 23(1) of the Supreme Court (General Civil Procedure) Rules, and/or the Court’s inherent jurisdiction, there be summary judgment for the Defendants.
2.Further or alternatively, the proceeding against the Defendants be struck out in its entirety pursuant to Order 23(2) of the Supreme Court (General Civil Procedure) Rules 2015 and/or pursuant to the Court’s inherent jurisdiction on the grounds that the proceeding is an abuse of process.
3.The Plaintiff pay the Defendants’ costs of the Application and the costs of the proceeding.
4.Such further or other Orders as the Court sees fit.
In short, Carus submits:
(a) that Ms Taseska’s proposed amended statement of claim fails to comply with the terms of the 16 March orders;
(b) in particular, paragraph 4(b) of the 16 March orders, that the claims in the proposed amended statement of claim have no real prospects of success; and
(c) given that Ms Taseska’s current proposed statement of claim is the fourth iteration of her claim against Carus, I could not be satisfied that Ms Taseska will ever be able to properly articulate her claim. In relation to the last point, counsel for Carus relied upon a number of authorities where a Court has refused leave to re-plead on this basis.[6]
[6]See Udowekno & Ors v Chief Executive Officer of the Board of Directors of St George Bank – a division of Westpac Banking Corporation & Ors (No 2) [2011] NSWSC 1122; Knörr v CSIRO & Ors [2012] VSC 529 [25]–[29]; and on appeal [2014] VSCA 84, esp [53]–[55]; [58]; MacFadyen & Ellis v Bank of Queensland (No 2) [2014] VSC 653 [42]–[46].
In her affidavit sworn in support of her application on 19 July 2017, Ms Taseska deposed, in summary, as follows:
(a) the proposed amended statement of claim explains all of the financial losses said to have been suffered by her as a result of the negligence and/or breach of duty of Carus;
(b) at the time she prepared the previous version of the statement of claim (the subject of the 16 March orders), dated 9 January 2017, she had not had sufficient time to prepare an adequate pleading, because she only received Carus’ file (‘file’) in December 2016, which amounted to some 19 boxes of documents;
(c) she exhibited a number of documents said to support the contentions in her statement of claim (some of which had previously been provided to the Court in the hearing leading up to the 16 March ruling);
(d) she believes there are a number of documents missing from the file, and referred to an internal Carus file note referring to a ‘clean up’ of the file;
(e) she deposed that documents required to be completed subsequent to mediations were not in the files, such that the personal injury proceedings should not have been set down for trial; and
(f) she deposed:
There are also many other documents that had to be explained by the defendants, there are some notes that have been given to me by the defendant (sic) which were taken on the mediations and have been changed and altered.
Carus relied upon two affidavits affirmed by Ms Alexandra Derham of DLA Piper Australia, the solicitors for Carus. In her affidavit sworn on 21 September 2017, Ms Derham deposes, in summary, as follows:
(a) she referred to the 16 March ruling and paragraph 4 of the 16 March orders;
(b) she referred to the (late) service upon her firm of Ms Taseska’s current application; and
(c) she deposed as follows:
Notwithstanding the many allegations and assertions made by the Plaintiff in the Proposed Amended Statement of Claim, there is no pleading which shows that anything the Defendants did or did not do as caused her to suffer a loss in the context of the underlying claims having been determined finally by J Forrest J in the Court of Appeal, and none of the pleadings disclose a valid cause of action in line with judgment and Orders of the Honourable Associate Justice Daly dated 16 March 2017.
On 2 October 2017, Ms Derham affirmed a further affidavit which exhibited two documents, as follows:
(a) a letter from Carus to Ms Taseska dated 1 December 2011, which enclosed a costs agreement, and, relevantly, stated as follows:
We advise we have sought Counsel’s advice in relation to your current proceedings issued at the Supreme Court for the psychiatric injuries you sustained during the course of your employment with the Defendant.
We note at the statutory conference prior to issuing proceedings at the Supreme Court, the Defendant offered $150,000 plus retention of benefits plus costs and this was rejected. Later on, a formal Statutory Offer of $nil was made by the Defendant and a Statutory Counter Offer of $800,000 plus retention of benefits plus costs was put by yourself, after you had dismissed your former solicitors.
You attended to our office after the Statutory Counter Offer was made and with little time to issue proceedings to protect your common law rights. Yet, we did so on time.
We have since been able to come to a better understanding of your claim and its prospects of success. We believe the claim has merits but we are very concerned your exposure to legal costs.
It is our opinion and one shared by our Counsel that the Statutory Counter Offer you made is unrealistic and that you have no prospect of obtaining an award of damages that will be at least 90% of that Statutory Counter Offer.
If that does eventually occur, then all your legal costs in running this proceeding will need to be paid from any damages awarded. You are therefore looking at a substantial legal bill of between $100,000 to $150,000 or higher, depending on how long this matter takes to resolution.
With this information at hand, we are now able to provide you with a costs agreement that fairly reflects the risks you now face with legal costs, and ask that you sign same and return it.
Please note we have worded the costs agreement to deal only with the present proceedings, and a separate general costs agreement will be sent in relation to your other work related claims.
When you consider your costs exposure, we believe we should use all efforts to achieve an early settlement, and if you think otherwise please advise.
Should you have any questions in relation to the costs agreement, please do not hesitate to contact our Henry Carus. As otherwise, we look forward to a return of a signed copy in the enclosed self addressed stamped envelope and thank you in anticipation.
(b) a typed file note of a conversation between Henry Carus and Amanda Poh concerning Ms Taseska’s claim, which included the following statement:
Need to send letter to client with updated costs agreement to reflect costs. Because she put in a counter offer of $800,000 that we strongly believe she will not get it or even 90% of that, she will lose her costs. Would strongly recommend an early settlement.
Ms Taseska filed and served a further affidavit on 3 November 2017. While this affidavit exhibited a number of documents, the affidavit was largely responsive to the written outline of submissions filed and served on behalf of Carus on 2 October 2017. She deposed, in summary, as follows:
(a) she stated:
At this stage of the proceedings the defendant has no bases (sic) to ask for my case to be dismissed there is still evidence that the defendant is holding in there (sic) possession and not giving it to me;
(b) Carus has not complied with a Notice for Discovery served by her;
(c) the undisclosed offer referred to in the proposed amended statement of claim is a different offer than that referred to in the 16 March ruling;
(d) the proposed amended statement of claim explains all of the negligent conduct of Carus, and the financial losses caused to her by them;
(e) at this stage it is not possible to determine what happened with the impairment benefits claim, as there is evidence that Carus did work on all impairment benefits claims, and Carus has never produced any documents in relation to the impairment benefits claim;
(f) she exhibited various documents which were said to support her contention that MSS Security had made an offer of $720,000 with respect to the stress claim. These documents include, among others:
(i) a file note made by Amanda Poh, a solicitor, on 16 July 2013 which stated:
‘Def not going to offer anything more than $720 for her psych claim.’
(ii) Ms Taseska’s own statutory counteroffer of $800,000 plus retention and costs; and
(iii) terms of settlement between Ms Taseska and MSS Security dated 6 October 2010 whereby MSS Security agreed to make ongoing weekly payments of compensation to Ms Taseska.
(g) she stated:
the case against the defendants is not abuse of process, there is evidence that I had a strong case for the psychiatric injury claims against MSS Security and also to the misconduct and negligence by the defendants I lost the cases and sustained substantial financial losses;
(h) in support of her contention that she had a strong claim against MSS Security on the stress claim, she exhibited a number of documents, some of which emanated from lawyers previously engaged by MSS Security. These documents include, among others:
(i) an advice from a solicitor at Herbert Geer to the WorkSafe Vic Legal Team dated 31 March 2011, which referred to the initial assessment of the value of the stress claim by the worker being between $700,000 and $875,000;
(ii) part of an email advice from a barrister to Herbert Geer dated 6 October 2010 to the effect that, for the purposes MSS Security’s liability to make weekly payments of compensation, both the knee injury and the psychiatric injury were work related;
(iii) an email from a solicitor from Herbert Geer to CGU (the claims agent for MSS Security) dated 1 February 2011 stating, among other things, that past economic loss in respect of the stress claim was calculated to be $100,000, with future economic loss likely to be in excess of $500,000, and advising that Ms Taseska be provided with a serious injury certificate for both pain and suffering and economic loss with respect to the stress claim;
(iv)a memorandum of advice from Mr Richard Forsyth (a barrister representing Ms Taseska at the time) on 1 April 2011, reporting on a settlement conference, considering liability and quantum issues with respect to the stress claim, and advising that the settlement range was $375,000 to $400,000 plus ‘keep’ (ie, retention of weekly payments).
(i) she asserted that MSS Security were keen to settle the personal injuries proceedings, but Carus refused to negotiate and provide MSS Security with all the necessary information;
(j) while she stopped work because of the psychiatric injury, she would in any event have had to stop work due to the knee injury, which was severe;
(k) if Carus had made an application for a serious injury certificate for pecuniary loss with respect to the knee claim she would have been in a position to make a claim for future earning losses in respect of her knee injury;
(l) she asserted that there is still evidence and documents in the possession of Carus which would have helped her in the personal injuries proceedings and this proceeding; and
(m)there is evidence that Carus failed to prepare a calculation of the Fox v Wood component of her damages prior to the first trial of the personal injuries proceedings in 2013.
In relation to Ms Taseska’s claim that Carus’ refusal to provide the file to her after the retainer ended in September 2013, Ms Taseska deposed as follows:
After the resignation of the defendant’s if they supplied the files to me I would off been able to better understand the cases, I would off been able to read all the interrogatory questions that were done from the defendant (MSS Security) which would off help me to write better questions for the witnesses to ask them on the witness stand.
I would off been able to better understand which witnesses would off been crucial for my cases and which witnesses I had to Subpoena to the Court proceedings.
Without the file I was unable to understand properly the cases, I was unable to see and understand what the defendant (MSS Security) how the defendant were pleading the cases.
I did not know anything what was going on in the cases, I lost the opportunity to negotiate and mediate with the defendant (MSS Security).
I only knew what happened and how I got injured just my side of the story, I did not know the rest of the story. I was denied the opportunity to broadly see the evidence witnesses reports, interrogatory questions and answers and all other documents that would of help me to understand the case and properly prepared the cases for trial.
I was denied the opportunity to properly prepare the cases for trial due to the defendant’s refusing to supplied me the files after they resignation in 2013.
If the defendant’s given me the files in 2013 after they resignation, I would off been able to properly prepare the cases for trial or ever retain another law firm to properly represent the cases in Court, I would have been awarded all my earning losses.
If all the evidence from the witnesses were given by the defendant’s to the plaintiff the proceedings would off been successful in Court and the I would off be awarded all her earning/financial losses that I have sustained due to my injuries.
I propose to dispose of the parties’ applications as follows:
(a) I will grant Ms Taseska leave to file the proposed statement of claim, subject to the provision of further and better particulars in accordance with these reasons, insofar as the proposed amended statement of claim makes allegations concerning Carus’ failure to apply for a significant injury certificate for pecuniary loss said to have arisen out of the knee claim, such leave to be effective from 1 June 2017, the date that the proposed amended statement of claim was filed with the Court; and
(b) I will defer the question of whether summary judgment ought to be granted, or leave be given to replead, in respect of Ms Taseska’s claims that Carus’ failure to provide her with her file hampered her ability to prepare for the trial of the stress claim until after Ms Taseska files and serves an affidavit which:
(v) lists each of the documents on the Carus file which:
(A) she did not have in her possession prior to December 2016; and
(B) would have been tendered into evidence at the trial of the stress claim component of the personal injuries proceeding, or would have been of assistance to her in preparing for trial;
(vi)identifies any witness who could have been called or subpoenaed to give evidence at trial who did not give evidence at trial in relation to the stress claim, and summarise the evidence she expected that witness or witnesses would have given; and
(vii) by reference to the findings of J Forrest J in his judgment, explain how the additional documents and/or witnesses would have led to a different result in the stress claim.
(c) otherwise order there be judgment for Carus on the remaining claims in the proposed amended statement of claim, on the basis that they have no real prospects of success.
With the assistance of the written outline of submissions filed on behalf of Carus, the claims in the proposed amended statement of claim can be disaggregated as follows:
(a) the undisclosed offer claim, being a claim that Carus had failed to disclose to her an offer of $720,000 made by the defendant in the personal injuries proceedings to resolve the proceedings;
(b) the loss of value of the stress claim (which was dismissed by J Forrest J), on the basis that Carus failed to file an amended statement of claim in a timely fashion, and failed to provide Ms Taseska with all of the documents she needed to prepare her case for the trial before J Forrest J in February 2016;
(c) the loss of value of the knee claim, by reason of Carus’ failure to prepare the case properly, failure to provide her with the documents on the file, failure to subpoena crucial witnesses, and failure to plead that she needed total knee replacement surgery;
(d) further, with respect to the knee claim, Carus obtained a serious injury certificate for pain and suffering only, such that she lost the opportunity to make a claim for pecuniary loss; and
(e) Carus’ failure to lodge a claim for impairment benefits for her workplace related knee injury and psychological injuries.
In relation to the undisclosed offer claim, Ms Taseska notes that this claim is a different claim than the claim upon which I granted judgment for Carus in the 16 March orders. As noted in paragraph 11 above, she relied upon a number of documents to support her contention that MSS Security made an offer to settle the proceedings, in the sum of $720,000.[7]
[7]Ms Taseska does not specify whether the offer was $720,000 ‘all-in’, or $720,000 plus costs.
I agree with the submissions made on behalf of Carus that the undisclosed offer claim is completely speculative, and the documents relied upon by her to support this allegation, including the documents referred to in paragraph 12, do not support any such allegation. All these documents show is that at some stage lawyers representing both Ms Taseska and MSS Security estimated MSS Security’s potential financial exposure with regard to the stress claim to be in the order of $700,000 to $900,000. I infer that this was on the presumption that Ms Taseska was successful in establishing liability on the part of MSS Security in respect of the stress claim, which she did not do at trial. Indeed, the letter reproduced at paragraph 11(a) above showed that Carus was quite concerned about Ms Taseska’s costs exposure on the stress claim.
In his written outline of submissions, counsel for Carus submitted that the proposed statement of claim, insofar as it concerns the stress claim, fails to comply with paragraph 4(b) of the 16 March orders, insofar as Ms Taseska fails to allege:
(a) how Carus and/or counsel ought to have pleaded the Statement of Claim in respect of the trial originally heard by Cavanough J;
(b) what documents she now has, but did not have in the trial before J Forrest J;
(c) how those documents that she now has but did not have could have affected J Forrest J’s decision; and
(d) what witness or witnesses Ms Taseska says would have been ‘crucial’, and how such witness or witnesses could have affected J Forrest J’s decision.
In relation to the loss of value of the stress claim, I agree that the proposed amended statement of claim fails to comply with paragraph 4(b) of my orders, in that it does not adequately plead the link between Carus’ alleged conduct and Ms Taseska’s failure to succeed upon her stress claim. In her affidavit of 3 November 2017 and her oral submissions at the hearing, Ms Taseska appears to be edging closer to a proper articulation of her claim, save that I do not understand how Carus’ failure to amend the statement of claim in respect of the stress claim had any bearing upon its outcome whatsoever. However, my proposed disposition of the application will defer further consideration of the pleading issues and any issue as to whether these claims are an abuse of process issue for the time being. Given that Ms Taseska lost the stress claim on liability issues, I can see that it may be at least arguable that if Ms Taseska had access to her file she may have had a better understanding of the issues in the case, and may have identified relevant witnesses. As on the previous occasion, it is difficult to determine whether there is an abuse of process until there is greater clarity in what is actually being alleged. I am not yet convinced that Ms Taseska is incapable of carrying out the task I have set for her.
However, the same reasoning does not apply to the alleged loss of value of the knee claim, where Ms Taseska has completely failed to identify how any restrictions on her ability to prepare for trial led to a worse outcome than she achieved. She was successful on the liability issue, and a careful review of J Forrest J’s reasons showed that there was no absence of any relevant medical evidence: indeed, her award (noting that his Honour is an extremely experienced common law judge) was based upon the medical evidence most favourable to Ms Taseska, including the evidence that she would need a total knee reconstruction in the future. The award also exceeded the last offer made by MSS Security in relation to both the stress claim and the knee claim. In the absence of any indication whatsoever from Ms Taseska as to how any information from Carus’ file would have assisted in the presentation of her case concerning the knee claim, and given the detailed reasons given by J Forrest J in his judgment, not only does the proposed statement of claim fail to comply with the terms of the 16 March orders, I am fortified in the tentative view I expressed in the 16 March ruling that Ms Taseska’s claims with regard to the knee claim are an abuse of process, in that they seek to impermissibly re-litigate the trial of the knee claim,[8] and thus judgment ought to be entered for the defendant in respect of that claim.
[8]See Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 [26].
As for the serious injury certificate issue, the following observations can be made:
(a) it could not be said that any claim that Carus was negligent in failing to apply for a serious injury certificate with pecuniary loss in respect of the knee claim is subject to any issue estoppel, or is otherwise an abuse of process;
(b) in her affidavit of 3 November 2017 and in her oral submissions, Ms Taseska put the claim in the following way: even though she stopped work as a result of psychological issues, if these issues had not intervened, she would have to have stopped work prematurely in any event, as a result of her knee injury;
(c) J Forrest J’s statement to the effect that she returned to work after the knee injury does not rise to a binding estoppel in relation to whether Ms Taseska suffered pecuniary loss as a result of the knee injury; and
(d) the proposed amended statement of claim refers to the serious injury certificate issue at paragraph 74(cc), but does not plead the material facts which support the contention that, if Carus had applied for a serious injury certificate with pecuniary loss he would have been successful in obtaining one. However, this deficiency ought to be able to be remedied relatively easily, by developing the statements made by Ms Taseska concerning that issue in her affidavit sworn on 3 November 2017.
As for the impairment benefits issue (both in respect of the knee claim and the stress claim), these allegations go nowhere. As noted by counsel for Carus in his submissions, if Carus had applied for and obtained for Ms Taseska impairment benefits for the knee claim, they would have been ‘netted off’ the award of damages awarded to her by J Forrest J pursuant to s 134AB(25) of the Accident Compensation Act 1986 (Vic), such that Ms Taseska has suffered no loss. As for the stress claim, as noted by counsel for Carus, Ms Taseska is still entitled to make an application for an impairment benefit with respect to her work related psychological injuries. However, I note in a letter exhibited to Ms Taseska’s affidavit of 3 November 2017,[9] which is a letter of advice from Herbert Geer to a claims agent dated 1 February 2011, there is the following statement:
The Medical Panel assessed the worker as having a 25% primary psychiatric impairment, thus no lump sum payment has been made pursuant to s 98C.
[9]Exhibit L.
So, while Ms Taseska’s curiosity has no doubt been stirred by the apparently inconsistent evidence available concerning whether or not applications had been made by Carus for impairment benefits, and the outcome of any such applications, Ms Taseska’s claims in that regard go nowhere. There should be judgment for the defendants in respect of the impairment benefits claim.
Finally, for completeness, I do not accept Ms Taseska’s submissions that there has been any default on the part of Carus with respect to discovery. She has been provided with 19 boxes of documents, indeed, the entire file. I accept the assurances of counsel for Carus that while formal discovery (that is, the filing and service of a sworn affidavit of documents) has not been made, in practical terms, all relevant documents have been provided to Ms Taseska.
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