Batshon v Sydney Trains

Judgment

1. HIS HONOUR: My earlier judgment in this matter was delivered on 30 June 2020: see Batshon v Sydney Trains [2020] NSWSC 831. After hearing Mr Batshon's appeal, I formed the view that it was appropriate to receive further submissions. The proceedings thereafter came before me on 29 July 2020 for argument upon the question of whether or not Mr Batshon should be given leave to amend his summons and what should follow if he were. Sydney Trains opposed the grant of leave to amend but contended that the appeal should be dismissed in any event.
2. I had indicated at [12] in my decision that Mr Batshon's solicitor attached submissions in support of his request to be examined by the Medical Appeal Panel. I included those submissions in terms in the body of my decision. For reasons that will become apparent, I propose to repeat the relevant portion of those submissions here: ITEM 4.3 - SUBMISSIONS IN SUPPORT GROUND 1 3.1 Pursuant to Item 11.6 of the Guidelines diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment. 3.2 Accordingly it is submitted that if the Applicant's impairment was assessed on the basis of an incorrect diagnosis he should be re-assessed by an AMS who is a member of the Medical Appeal Panel. (Emphasis added.)
3. When the matter returned to me for further submissions, Mr Dodd of counsel for Sydney Trains maintained that Mr Batshon had not in fact attached a submission to his original application addressing why he should be re-examined by an Authorised Medical Specialist who is a member of the Appeal Panel and that my reference in the judgment to him having done so was wrong. In order that Mr Dodd's submissions can be fully understood, the following transcript excerpt may be of assistance: "HIS HONOUR: Perhaps I'll just address this to you, Mr Dodd. In reviewing this matter and producing my judgment, it struck me there was a possibility, as you will appreciate, that Mr Batshon might want to argue that the appeal panel hadn't provided an indication of why they chose not to examine him when his request to do so was, can I use the expression, in the mix. You don't have to comment upon whether or not you agree with my view about that, but if he were to apply by leave to amend, what would your view be in relation to that? DODD: Well, it's opposed your Honour. And in opposing it I have to draw your Honour's attention to what I will be submitting is a fundamental error in your Honour's approach to this case. HIS HONOUR: Do that now. DODD: Thank you your Honour. And it reflects exactly on the point that your Honour raises with me and is raised in your Honour's judgment. Can I take your Honour to paragraph 12 of your Honour's judgment. Your Honour there says that Mr Batshon's solicitor attached submissions in support of his request to be examined by the medical appeal panel. Your Honour then sets out in paragraph 14 those submissions. That is the entirety of the submissions that were put in support of the appeal. HIS HONOUR: Yes. DODD: We don't have to go hunting for them, your Honour, is the point. What you won't find anywhere in paragraph 14 are any submissions in support of the question to be examined by the medical appeal panel. And in that respect, in my respectful submission, with the greatest respect to your Honour, paragraph 12 is simply wrong. Your Honour will recall perhaps in the course of the hearing of this matter we noted that, if I can use the expression 'the box was ticked on the form', that is a form that's prescribed under regulations, et cetera. It then goes on to say as your Honour relates in your Honour's judgment failure to provide submissions may result in that request not being considered. And your Honour indeed no submissions were filed to support that application for Mr Batshon to be re- examined. HIS HONOUR: So just - I'm just reminding myself. The box was ticked saying we would like to be examined and submissions saying why that should occur are attached, but they don't deal with it. DODD: No your Honour, no. With respect, there was on the form nothing other than the box being ticked. And there being printed on the form under the box to attach submissions and 'failure to provide submissions may result in this request being rejected', or words to that effect, and there was nothing either further on the form nor in the submissions that your Honour replicates at paragraph 14 of submissions being made for this man to be re-examined by the medical appeal panel. Now, if that's - if my analysis, your Honour, is correct that your Honour at paragraph 12 has erred just on a matter of fact in the case, then the balance of what your Honour has raised and the reason for your Honour not proceeding to judgment but proceeding to this directions hearing today is misconstrued [sic], in my respectful submission. So it is not something that was, save for tick the box, raised before the medical appeal panel."