Tuohey v Freemasons Hospital
[2011] VCC 1212
•30 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-08-02149
| PATRICK TUOHEY | Plaintiff |
| v | |
| FREEMASONS HOSPITAL | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 May 2011 |
| DATE OF RULING: | 30 May 2011 |
| CASE MAY BE CITED AS: | Tuohey v Freemasons Hospital |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1212 |
RULING
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Catchwords: Meaning of s.28F(2) of the Wrongs Act 1958 – Opinion sought of the Court of
Appeal pursuant to s.76(1) of the County Court Act 1985.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Michael Wilson SC | Holding Redlich |
| For the Defendant | Mr John Noonan SC | Minter Ellison |
| HIS HONOUR: |
1 In this proceeding, the plaintiff claims damages in respect of injuries suffered by him on 3 May 2005 in the course of his treatment as an in-patient in a hospital managed by the defendant located in Clarendon Street, East Melbourne.
2 In the course of a directions hearing conducted in the matter, the parties made a joint application that the trial in the proceeding be adjourned and that an issue which arises in the proceeding as to the interpretation of s.28F(2) of the Wrongs Act 1958 be referred to the Court of Appeal for its determination pursuant to s.76(1) of the County Court Act 1985.
3 The issue which arises relates to the way in which the provision of s.28F(2) of the Wrongs Act should be interpreted in circumstances in which a loss of earning capacity is associated with an injury notwithstanding that a capacity is retained to earn income, the quantum of which exceeds three times the amount of average weekly earnings.
4 The issue arises in the following circumstances:
(i)
The plaintiff alleges that the injuries he has sustained have occasioned a loss of capacity to work which has been, and will continue to be, productive of a substantial loss of earnings to him;
(ii)
It is agreed between the parties that during the period subsequent to the happening of his injury the plaintiff’s earnings have, for the most part, exceeded $2,836.50 per week (this being the figure which is agreed by the parties as equating to the amount referred as “three times the amount of average weekly earnings as at the date of the award” in s.28F(2) of the Act).
(iii)
It is submitted on behalf of the plaintiff that s.28F(2) operates so as to fix the sum which the plaintiff is entitled to claim with respect to both past and future economic loss, at a figure no greater than $2,836.50 per week; regardless of the extent of any retained capacity which he possesses to earn income; so long as the plaintiff is able to establish that his retained income earning capacity is less than the capacity which he would have possessed but for his injury.
(iv)
It is submitted on behalf of the defendant that the proper interpretation of s.28F(2) is that it precludes the plaintiff from maintaining any claim for compensation for past or future economic loss in the circumstances which exist in the present case; namely, where the plaintiff’s retained capacity to earn income is such that it involves the capacity to earn a weekly income greater than $2,836.50 per week.
5 I am informed by the parties that the trial in this matter will occupy at least two weeks and that the issue which arises as to the way in which s.28F(2) of the Act should be interpreted is of such significance that there is no prospect of the parties being able to resolve the case without the question being determined. Further, both parties have advised me that dependent upon my ruling upon the issue, the party adversely affected would appeal the point.
6 In the circumstances of the present case, it is my opinion that it is in the interests of justice that I accede to the parties’ request that pursuant to s.76(1) of the County Court Act 1985, I should refer for the opinion of the Court of Appeal the following questions:
(1)
What is the correct interpretation of the expression “the Court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the death or injury) have exceeded an amount that is three times the average weekly earnings” in s.28F(2) of the Wrongs Act 1958?
(2) Does s.28F(2) of the Wrongs Act 1958 require the Court to disregard:
(a)
the amount by which the difference between the plaintiff’s “without injury” earnings and the plaintiff’s “with injury” earnings exceeds the sum of $2,836.50?
(b)
the amount by which the plaintiff’s “without injury” earnings exceeds the sum of $2,836.50?
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