Zepackic v Prime Ceramics Property Services Pty Ltd (in liq)
[2015] VCC 197
•2 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-06069
| SLAVKO ZEPACKIC | Plaintiff |
| v | |
| PRIME CERAMICS PROPERTY SERVICES PTY LTD (in liquidation) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January and 2 February 2015 | |
DATE OF JUDGMENT: | 2 February 2015 | |
CASE MAY BE CITED AS: | Zepackic v Prime Ceramics Property Services Pty Ltd (in liq) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 197 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right knee, left knee and back – pain and suffering – election to receive lump sum under Accident Compensation Act, s98C – Accident Compensation Act, s104B(11A) (repealed) applied – rights to pursue common law claim extinguished
Legislation Cited: Accident Compensation Act 1985, s134AB, s104B(11A); Compensation (Common Law and Benefits) Act 2000, s17; Accident Compensation and Other Legislation (Amendment) Act 2006, s18(6).
Judgment: Plaintiff precluded from recovering damages for pain and suffering in respect of a right knee injury sustained in the course of, or due to the nature of, his employment with the defendant on or about 1 September 2002 pursuant to s104B(11A) of the Accident Compensation Act 1985 as at 29 May 2006.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC | Verduci Lawyers |
| For the Defendant | Mr M Hooper | Thomson Geer |
HIS HONOUR:
1 On 20 August 2012, the defendant in this proceeding consented to the plaintiff having leave to proceed to recover damages for pain and suffering with respect to a right knee injury suffered in the course of his employment between 24 July 2001 and 1 October 2002, together with a back injury. By Writ issued 10 December 2012, the plaintiff formally sought damages with respect to those injuries, together with a left knee injury.
2 By way of Summons dated 5 January 2015, the defendant seeks summary judgment or, alternatively, that there be a stay of judgment with respect to the plaintiff's claim for pain and suffering damages in respect of his right knee injury. In essence, the defendant seeks a declaration that the plaintiff is precluded from recovering damages for pain and suffering in respect of a right knee injury sustained in the course of, or due to the nature of, his employment with the defendant, Prime Ceramics Property Services Pty Ltd, on or about 1 September 2002 pursuant to s104B(11A) of the Accident Compensation Act 1985 (“the Act”) as it was as at 29 May 2006.
3 In its terms, s104B(11A) of the Act states:
“If a worker confirms in writing to the Authority or self-insurer under this section that he or she wishes to receive compensation in respect of the relevant injury or injuries under section 98C or 98E, he or she is precluded from subsequently recovering damages for pain and suffering in respect of that relevant injury or injuries.”
4 There is no issue in this Summons before me that the right knee injury in the Statement of Claim is other than the relevant injury pursuant to the subsection.
5 The primary facts relied upon in this matter are set out in the affidavit of Georgina Hedges, sworn 5 January 2015. In that affidavit, it is alleged as follows:
“2In this proceeding the plaintiff seeks damages for pain and suffering only. The particulars of injury sub-joined to paragraph 8 of the amended statement of claim plead injury to the plaintiff’s lower back, right knee, and left knee, as well as psychological injuries.
3The plaintiff completed a Worker's Claim for Impairment Benefits Form signed by him and dated 14 June 2004 in which he claimed impairment benefits under the Accident Compensation Act 1985 for injury to his ‘Right Knee’. …
4The insurer of the defendant, the Victoria WorkCover Authority (VWA), accepted liability for the right knee injury and assessed the plaintiff’s whole person impairment at 20%, resulting in an entitlement of $33,740 pursuant to s98C of the Accident Compensation Act 1985. Now produced and shown to me and marked GH-2 is a copy of a letter dated 21 April 2005 sent to the plaintiff’s then solicitors, Slater & Gordon, by the VWA’s authorised agent Cambridge Integrated Services Victoria Pty Ltd (Cambridge), which includes the Worker’s Response Form signed by the plaintiff on 9 May 2005.
5As shown in the Response Form, the plaintiff accepted the VWA’s assessment of his entitlement, but at that time in May 2005 he elected not to receive a payment under s 98C.
6On 28 April 2006 Slater & Gordon wrote to the plaintiff requesting his instructions on whether to elect to receive a lump sum payment of $33,740 under s 98C, or to instead proceed with a serious injury application under s 134AB and a common law claim. … .
7On 12 May 2006 Slater & Gordon wrote to the plaintiff confirming his instructions that he did not wish to proceed with a common law claim and had elected to receive the lump sum under s 98C, and advised him that by doing so he was extinguishing his right to proceed with a common law claim. … .
8On 29 May 2006 Slater & Gordon, on behalf of the plaintiff, wrote to Cambridge, on behalf of the VWA, by letter sent by fax stating that the plaintiff now elected to receive the payment of $33,740 compensation under s 98C. … .”
6 It is common ground that s104B(11A) was inserted by s17 of the Accident Compensation (Common Law and Benefits) Act 2000. Section 104B(11A) was repealed with effect from 1 June 2006 by s18(6) of the Accident Compensation and Other Legislation (Amendment) Act 2006.
7 By a Further Amended Defence filed under leave and dated 11 August 2014, the defendant pleaded, pursuant to paragraph 11:
“The plaintiff is precluded from recovering damages for pain and suffering in respect of any injury to his right knee by reason of the operation of s104B(11A) of the Accident Compensation Act 1985 in effect as at 29 May 2006 (‘the Act’).
Particulars:
(a)The plaintiff lodged a claim for impairment benefits pursuant to s98C of the Act in relation to an injury to his right knee received by the Authority on or about 23 December 2004. A copy of the claim form is in the possession of the defendant and may be inspected by appointment.
(b)On 21 April 2005 the defendant notified the plaintiff of the outcome of his claim pursuant to s98C. A copy of the notification dated 21 April 2005 is in the possession of the defendant's solicitors and may be inspected by appointment.
(c)On 29 May 2006 the plaintiff notified the defendant that he wished to receive compensation in respect of the injury to his right knee under s98C. A cop of the letter of advice dated 29 May 2006 is in the possession of the defendant's solicitors and is available for inspection.”
8 By an Amended Reply granted under leave and dated 28 August 2014, the plaintiff pleaded, inter alia, at paragraph 3:
“He does not admit paragraph 11 and seeks further that by reason of the following matters it is unconscionable of the defendant to now rely on the provisions of s104B(11A) of the Accident Compensation Act 1985 and is estopped from doing so:
(a)The plaintiff lodged a serious injury application in respect of the injuries, the subject of these proceedings on 17 June 2009.
(b)The plaintiff's serious injury application was refused on 15 October 2009.
(c)The plaintiff issued an application in the County Court under s134AB of the Accident Compensation Act 1985 seeking serious injury determination on 20 October 2009.
(d)The plaintiff's application was heard on 26 August 2010. The defendant opposed the application and it was dismissed on 1 September 2010.
(e)The plaintiff filed a notice of appeal in the Court of Appeal on 14 September 2010.
(f)The Court of Appeal allowed the plaintiff's appeal on 1 July 2011.
(g)The plaintiff's application under s134AB(4) of the Accident Compensation Act 1985 was reheard on 20 August 2012 and leave to issue these proceedings for the recovery of pain and suffering damages was granted.
(h)Statutory process then commenced whereby the defendant made a statutory offer pursuant to s134AB(12)(b) of the Accident Compensation Act 1985 on 9 November 2012.
(i)The plaintiff made a statutory counteroffer pursuant to s134AB(12)(c) of the Accident Compensation Act 1985 on 15 November 2012.
(j)The plaintiff issued the writ in these proceedings on 10 December 2012.
(k)By an order made 24 April 2013 the plaintiff obtained leave nunc pro tunc to begin and proceed with these proceedings pursuant to s500(2) of the Corporations Act 2001.
(l)The writ was amended to refer to the fact of the defendant's liquidation order being made on 18 June 2013.
(m)By 22 May 2014 the defendant served the proposed amendment to its defence relying on the plaintiff's acceptance of the compensation entitlement in respect of his right knee as precluding the plaintiff from recovering damages for pain and suffering in respect of that injury by reason of the operation of s104B(11A) of the Accident Compensation Act 1985. The first mention by the defendant of such reliance occurred about 10 days beforehand in a conversation between the plaintiff's counsel and the defendant’s counsel.
(n)The plaintiff has seen numerous medical practitioners and obtained reports for the purposes of the application for a serious injury certificate and for the application to this court under s134AB(4) and for this proceeding.
(o)The defendant could have taken the point of the effect of the plaintiff’s acceptance of the compensation entitlement on the hearing of the serious injury application sought earlier.
(p)The plaintiff was entitled to consider that the defences raised by the defendant in its defence were those it intended to rely on, the more so as more time went by and the matter progressed as it did without any mention of the point now alleged and in reliance on that being the case to proceed with his s134AB(4) applications and appeals and with the present proceeding.”
9 In the case before me, the applicant/defendant submits that as a matter of elementary statutory interpretation, that the plaintiff, having confirmed in writing to the VWA that he wishes to receive compensation in respect of his right knee injury under s98C or s98E, he is precluded from subsequently recovering damages for pain and suffering in respect of that right knee injury.
10 Accordingly, it is submitted, that any judgment in his favour as currently pleaded with respect to that right knee injury would be rendered nugatory, and he has in fact and in law surrendered his right to pain and suffering damages by electing to receive compensation pursuant to these two sections.
11 Senior Counsel for the plaintiff submits that ss(11A) in its terms does not go to the jurisdiction of the Court and it would be inequitable to allow the defendant to rely on this provision given the circumstances outlined above.
12 Section 134AB(25)(b) of the Act that was applicable at the relevant time states:
“(25)If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect of proceedings referred to in sub-section (1), the amount of the judgment, order for damages, settlement or compromise must be reduced by—
…
(b)to the extent that it is in respect of non-pecuniary loss, the amount of compensation (if any) paid under section 98C and 98E.”
13 Accordingly, it would appear that parliament had contemplated a situation where a judgment could be validly entered on the part of the plaintiff in circumstances where he had been paid compensation under s98C and s98E. However, when one looks at ss(1) in its terms, it relates to a plaintiff's entitlement to seek damages for injuries suffered in the course of his employment “on or after 20 October 2009”.
14 It appears to me that it is consistent with both these subsections that parliament intends that ss(25) should operate after 20 October 1998 but not in the relevant period from 2000 to 2006. I accept the submission of counsel for the defendant that the terms of ss(11A) are plain in their simple meaning and the effect of ss(11A) is that the worker must make an election to either receive the compensation pursuant to s98C or s98E and then forego a further claim to common law damages or, alternatively, forego the present payment of the entitlement and to see what eventuates pursuant to ss(25) of s134AB.
15 Insofar as an estoppel can operate in favour of the plaintiff in the face of such a provision, I should note here that the mistake, which is freely admitted by defence counsel, having been made by the defendant, was induced by the plaintiff or one or other of his solicitors by virtue of the fact of making a subsequent clam, having elected to receive the said compensation on or about 29 May 2006.
16 I can readily accept the plaintiff may face consequential disadvantages as outlined in the pleading in the Amended Reply but it appears to me that the plain reading of ss(11A) means that he is precluded from recovering from any damages in respect of the relevant injury which, as I have already stated, is agreed to be the same injury as pleaded in this Writ.
17 Accordingly, I will make the declaration that the plaintiff is precluded from recovering damages for pain and suffering in respect of the right knee injury sustained in the course of or due to the nature of his employment with the defendant on or about 1 September 2002 pursuant to s104B(11A) of the Act as at 29 May 2006.
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