United Doormakers (Vic) Pty Ltd v Amendola

[2012] VSCA 331

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0162

UNITED DOORMAKERS (VIC) PTY LTD	Applicant
V
ANTHONY AMENDOLA	Respondent

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JUDGES:	WARREN CJ and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2012
DATE OF JUDGMENT:	16 November 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 331
JUDGMENT APPEALED FROM	Anthony Amendola v United Doormakers (Vic) Pty Ltd (County Court of Victoria, Judge O’Neill, 15 August 2012)

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APPLICATION ON SUMMONS

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M F Wheelahan SC with Ms M Norton	Thomsons Lawyers
For the Respondent	Mr A G Uren QC with Mr A D B Ingram	Clark Toop & Taylor

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Court of Appeal
459 Lonsdale Street, Melbourne, Vic, 3000

WARREN CJ:

1. I invite Priest JA to deliver the first judgment.

PRIEST JA: 

1. By summons dated 29 August 2012, the applicant seeks leave to appeal from orders made by a judge of the County Court on 15 August 2012.  I would refuse the leave sought.

1. On 3 August 2012, the applicant made application for an order under s 45 of the Accident Compensation Act1985 (‘the Act’) that certain medical questions be referred to a Medical Panel. Primarily on the basis that the questions fell within the exemption found in s 45(1D), the judge refused the application.

1. It is unnecessary to recite the facts in great detail. As is required by s 134AB(16)(b) of the Act, on 1 August 2011 the respondent (the plaintiff) filed an Originating Motion seeking leave to bring common law proceedings against the applicant (the defendant) to recover damages for alleged injuries suffered in the course of his employment between 21 April 2008 and 6 February 2009. In that proceeding, leave is sought with respect to ‘serious injury’ as described in s 134AB (37)(a), and it is sought with respect to both pain and suffering and loss of earning capacity. In essence, the respondent’s injuries are said to have resulted from ‘manual handling duties’, and include an incident when he fell from a ladder causing spinal pain; another when he suffered back pain when leaning forward in the production area; and a third when his foot was caught in a piece of equipment causing twisting of his back and resulting pain. Proposed causes of action include negligence and breach of duty.

1. Assessment of the origin and extent of the respondent’s injuries is complicated by two incidents pre-dating his employment (one involving being ‘dumped’ in surf and the other a motor vehicle accident) which may have caused back problems; unrelated health issues (in particular, a bowel problem which caused left leg pain);  and a motor vehicle accident on 18 February 2009, which may have exacerbated his spinal symptoms.  

1. The applicant proposed that six questions be determined by the Medical Panel.  Those questions fell into two main categories.  Question 1 enquires as to the respondent’s medical condition relevant to alleged injuries to his lumbar spine, left lower limb and any psychological or psychiatric injury;  and questions 2 to 6 enquire as to the plaintiff’s capacity for employment.

1. Although he held ‘reservations about at least some of the questions’ fitting within the statutory definition of ‘medical question’, the judge approached the matter as if they did.  He expressed the view that ‘the real matter to determine is, given the imprimatur contained in s 45(1)(b), whether such questions should not be referred “if it appears to the court that the formation of an opinion by the Medical Panel … will depend substantially on the resolution of factual issues which are more appropriately determined by the Court than the Medical Panel”.’

1. The gravamen of the judge’s reasons refusing the application for reference to a Medical Panel was that the questions ‘go to the heart of the determination by a court as to whether a plaintiff achieves the “serious injury” level both in respect of pain and suffering and economic loss’.  The ‘resolution of those matters is best determined by a court rather than a Medical Panel, and substantially so’. Determination of the questions will ‘substantially depend’ on several ‘factual issues’ which the judge set out. The exemption in s 45(1D) was thus engaged.

1. Section 5 of the Act defines ‘medical question’. So far as is relevant, it provides:

medical question means—

(a)a question as to the nature of a worker's medical condition relevant to an injury or alleged injury;  or

(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated;  or

(aba)a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment;  or

…

(h)a question prescribed to be a medical question in respect of an application for leave under section 134AB(16)(b); or

(i)a question determined to be a medical question by a court hearing an application for leave under section 134AB(16)(b).

1. The referral to the Medical Panel is sought under s 45(1)(b) of the Act, which reads:

(1)      If the court exercises jurisdiction under this Part, the court—

…

(b) subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—

(i)a party to the proceedings requests that a medical question or medical questions be referred;  and

(ii)that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.[1]  

[1] Emphasis added.

1. It seems plain enough that, so long as a proposed question is properly a ‘medical question’, and the other requirements of the section are met, then – subject to ss 45(1B), (1C) and (1D) – a judge has no discretion other than to refer the question to the Medical Panel.

1. In this case, the judge based his refusal to refer the questions on what he described as the ‘exemption’ in s 45(1D):

(1D)The court must not refer a medical question if it appears to the court that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.[2]  

[2] Emphasis added.

1. By s 45(1A), the section applies generally to applications brought under 134AB(16) of the Act. It provides:

(1A)This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b)—

(a)so as to enable in accordance with subsection (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of medical question in section 5(1)); or

(b)so as to require in accordance with subsection (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of medical question in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—

for the opinion of a Medical Panel.

1. By the proposed grounds of appeal, and the submissions made in support of them, the applicant contends that the judge erred in his construction of s 45(1D). Several errors of principle are claimed. First, it is submitted that the primary judge’s analysis was on the factual questions that fell for determination on the serious injury application. (An example is said to be the judge’s reference to the respondent’s earlier and subsequent injuries, disentanglement of the causes of injuries being irrelevant to the medical questions.) Secondly, the judge considered whether the matters in issue in the serious injury application would be most appropriately dealt with by a court or the Medical Panel. This is said to be ‘an incorrect focus’, since s 45(1D) requires a trial judge to consider whether the medical questions sought to be referred will depend substantially on the resolution of factual issues that might best be determined by a court. Thirdly, the judge made an irrelevant qualitative assessment of ‘the justice before a court, as compared to justice before a medical panel’. An overarching submission is that the limited nature of the ‘discretion’ in s 45(1D) indicates that the legislature intended there to be a ‘presumption’ that medical questions be appropriate for determination by a Medical Panel ‘in all but exceptional circumstances’.

1. The respondent submits that the judge’s decision was not one in the exercise of discretion, but was one of fact – it appeared to him that the formation of an opinion by the Medical Panel depended substantially on the resolution of factual issues, those factual issues being more appropriate for resolution by a court. It is argued that the judge did not confuse the factual issues relevant to the medical questions with those in the serious injury application. It was relevant for the judge to consider the factual issues likely to arise in the serious injury application with a particular focus on those raised in the proposed questions, in order to determine where the factual issues were more appropriately determined. The respondent disputes that the judge made a qualitative assessment of the justice before a court, as compared to justice before a medical panel. Moreover, the respondent disagrees with the submission is that the limited nature of the ‘discretion’ in s 45(1D) indicates that the legislature intended there to be a presumption that medical questions be appropriate for determination by a Medical Panel in all but exceptional circumstances.

1. Since an application under s 45(1) of the Act is interlocutory in nature, an appeal to this Court may only be brought by leave.[3]  

   [3] Section 74(2D) of the County Court Act 1958.

1. The applicant relies principally on six factors which, it submits, should attract a grant of leave. First, the judge misinterpreted the nature of the ‘discretion’ under s 45(1) to refuse a request for referral of medical questions to the Medical Panel. Secondly, the decision was contrary to the clear legislative intention that medical questions on serious injury applications under s 134AB(16)(b) be referred to a medical panel. Thirdly, the effect of that claimed misinterpretation is to render the right of a party to have questions referred to a Medical Panel ‘virtually meaningless’ in an application under s 134AB(16)(b), because the decision limits the circumstances for such referral. Fourthly, other judges of the County Court are likely to follow the decision. Fifthly, serious injury applications are heard almost exclusively in the County Court, and the only opportunity for correction of the judge’s errors is by the grant of leave. Sixthly, no appeal ‘on this ground’ would lie from final orders on the serious injury application, as it could hardly be argued that the decision to have the medical questions determined by a judge rather than a medical panel would itself constitute a substantial injustice bearing on the final orders.

1. Guidance for the occasion for the grant of leave to appeal with respect to an interlocutory decision is provided by the oft-cited case of Niemann v Electronic Industries Limited,[4] where it was held that leave should not be granted unless the original decision was wrong, or at least attended with sufficient doubt to justify a grant of leave; and in addition, where a substantial injustice would be done by leaving the decision unreversed.  However, as Phillips JA said in Secretary to the Department of Premier and Cabinet v Hulls:[5]   

[A]lthough in argument what was said in Niemann was referred to as laying down ‘principles’ or ‘rules’, that is not so.  What was said should be taken to do no more than provide guidelines:  cf. Norbis v Norbis (1986) 161 C.L.R. 513. The discretion to grant leave, which is conferred by the statute in untrammelled terms, cannot be fettered, and should not be fettered, by judicial decision.  From time to time a case will arise in which any preconceived guidelines will be found not wholly sufficient.  In the end, whether leave is granted or not must always depend upon the justice of the case, as it appears to the court from whom leave is sought.

[4] [1978] VR 431.

[5] [1999] 3 VR 331, 335.

1. Moreover, as was said by Callaway JA in X v Director of Public Prosecutions:[6]

The critical point, and the ratio decidendi of Niemann's case, is that the requirements are cumulative.  Even if the decision below was wrong, it will be allowed to stand if there is no risk of substantial injustice.  To take a different view would be to disregard the legislative policy of discouraging interlocutory appeals except where they are necessary in the interests of justice, cf Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd. [1969] VR 401 at 407-408.

[6] [1995] 2 VR 622, 626.

1. I find the factors relied upon by the applicant as justifying a grant of leave unpersuasive.  To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concerned the existence and extent of the respondent’s injuries, and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by a court.  It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel.  Very often the most illuminative evidence on such matters flows from cross-examination in a adversarial setting – something which is not available to a Medical Panel.  The judge’s approach thus does not seem to me to be erroneous;  or, at least, sufficiently dubious to justify a grant of leave.

1. But even if I am wrong about that, I would still refuse leave. There is much to be said for the proposition that this case turns on its own facts, and will thus be unlikely to be influential in other cases where it is sought to invoke s 45(1). Moreover, if left to stand, the decision does not finally determine the ultimate controversy between the parties. Hence, in my opinion, there cannot be said to be the risk of substantial injustice to the applicant by leaving the decision undisturbed.

1. I do not ignore the applicant’s submission that the right of a party to have medical questions referred under s 45(1)(b) will be rendered ‘virtually meaningless’ by the decision. But I think that submission somewhat overstates the position. It seems to me that referral under s 45(1)(b) will be entirely apt in those cases where resolution of the proposed medical questions will not turn on disputed facts. Further, I doubt that in future cases of this kind judges of the County Court will consider themselves fettered by the ruling made by the judge in this case based on the facts peculiar to it.

1. For these reasons, I would refuse leave to appeal.

WARREN CJ:

1. I agree with Priest JA.  I would add some further remarks.  The Court was taken to Gerlach v Clifton Bricks.[7]  In my view the authority does not apply in this case as the judgment below was not plainly wrong. 

   [7] (2002) CLR 478.

1. I would also observe that the judge at first instance is very experienced in the jurisdiction.  That experience in these types of matters is relevant to how the cases proceed and to assessing the desirability and suitability of the evidence in a particular case to be tested in the adversarial context.  

1. Finally, I would observe that this case and his Honour's decision turned on the facts of the case.  I would have difficulty in seeing precedential value for decisions in other cases.  

1. (Discussion re costs)

1. The Court will order that:

1.Leave for appeal is refused and the summons is dismissed. 

2.The applicant pay the respondent’s costs of the application.

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