Ceri v Secure Parking Management No. 2 Pty Ltd & Anor [2019] VCC 640

4 The second defendant exercised its statutory right to refer the plaintiff to a Medical Panel, which, after examining her, determined that the plaintiff did not satisfy the threshold level, and accordingly, that she did not suffer a significant injury.

5 The first defendant now seeks to rely upon the Medical Panel's determination, and contends that, pursuant to s28LZH, the plaintiff is precluded from maintaining her claim for non-economic loss damages against either defendant in this proceeding. However, the plaintiff disputes this submission and seeks a declaration that she has a "significant injury" in respect of her claim against the first defendant, on the basis that the deemed entitlement in respect of the first defendant, is not extinguished by virtue of the subsequent Medical Panel decision.

6 The first defendant initially submitted that this matter should be determined by the trial judge at the commencement of the hearing, which is currently listed for 8 July 2019. However, in circumstances where the matter was listed for an urgent Directions Hearing, and where both parties affected by this ruling were represented by counsel, I considered it preferable to narrow the issues in dispute in a timely and cost-efficient manner, and thus determine the matter myself. One of the issues for determination in this matter is the ambiguity in respect of the manner in which the different sections and divisions of Part VBA were intended to interact. While there was no transcript of the oral hearing of this Directions Hearing, I have been assisted by written submissions from both counsel. Having carefully considered those submissions, for the reasons which follow, I am satisfied that the Medical Panel determination only has effect in respect of the second defendant, such that the plaintiff is entitled to recover non-economic loss damages from the first defendant in this proceeding.

Relevant sections of Part VBA of the Wrongs Act

7 Part VBA of the Wrongs Act was introduced in 2004, as part of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic).

8 In deciding this application, there are several sections relevant to my decision. They are as follows:

Section 28LE - Restriction on recovery of damages for non‑economic loss

"A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury."

"(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if -

(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; or

...

(3) For the purposes of this Part injury to a person is deemed to be significant injury if -

(a) an agreement is given under Division 4 to waive the requirement for assessment in respect of the injury; or

(aa) the injury is deemed under section 28LZG(10) or 28LZGA(4) to be significant injury; or

(b) the court makes a determination in respect of that person under section 28LZN.

... ."

Division 4

Section 28 LR - Can a respondent bind any other respondent?

"An agreement under this Division by a respondent to a claim that the assessment is not required because the injury is significant injury does not bind any other respondent."

"(1) The respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the required information under section 28LT.

...

(4) If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment."

Section 28WLE - Referral of medical question to Medical Panel

"(1) The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part -

(a) within 60 days after receiving the certificate and the required information under section 28LT; or

...

(2) The respondent may not refer a medical question in relation to the assessment to a Medical Panel if the respondent has accepted the assessment or is deemed to have accepted the assessment under this Division.

... ."

"This Division sets out the powers and procedures of a Medical Panel in relation to a medical question referred to it under Division 4."

Section 28LZB What if there is more than one referral in relation to an assessment?

The Convenor may direct that referrals by 2 or more respondents to the Medical Panel that concern the same assessment be consolidated.

Section 28LZH - Effect of determination as to threshold level

"(1) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.

(2) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part."

"(1) This section applies to a claimant who brings a proceeding in a court in respect of a claim for damages for non-economic loss to which this Part applies in respect of injury to a person caused by the fault of another person.

(2) The claimant must file in the court before the determination of the claim -

(a) if the claimant intends to rely on a certificate of assessment under this Part, a copy of that certificate; or

(b) if the claimant intends to rely on the written agreement of any respondent under Division 4 to waive the requirement for assessment in respect of the injury, a copy of that agreement.

(3) If a Medical Panel has made a determination as to the threshold level under Division 5, the claimant must also file in the court a copy of the certificate of determination of the Medical Panel.

(4) If the respondent is deemed to have accepted an assessment under this Part, the claimant must also file in the court a statement to that effect.

(5) If the injury is deemed under section 28LZG(10) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under section 28LZG(5).

(6) If the injury is deemed under section 28LZGA(4) to be significant injury, the claimant must also file in the court a statement to that effect, together with the certificate of the Medical Panel under that subsection."

9 On 28 August 2017, Dr David Kennedy provided a medical report and a Certificate of Assessment in this matter, stating that the plaintiff suffered a permanent impairment of more than 5 per cent whole person impairment.

10 On 5 September 2017, by registered post, the plaintiff's solicitors served Dr Kennedy's Certificate of Assessment on both defendants, pursuant to s28LT of the Act. In addition, the plaintiff's solicitors provided the "prescribed information" as required by s28LT(2) of the Act.

11 On 27 November 2017, the plaintiff's solicitors wrote to the first defendant's solicitors, stating that the first defendant was deemed to have accepted the assessment, on the basis that the plaintiff had not received a response from the first defendant to the Certificate of Assessment and prescribed information.

12 The second defendant did not accept the assessment, and instead, within the prescribed time, referred a medical question in relation to the assessment to a Medical Panel for determination in accordance with s28LWE.

13 On 8 January 2018, the plaintiff issued proceedings in this case against both defendants.

14 On 5 June 2018, a Medical Panel determined that the degree of impairment resulting from the plaintiff's physical injuries did not satisfy the threshold level.

15 The parties are in agreement that the plaintiff is not entitled to claim non-economic loss damages against the second defendant.

16 The first defendant does not dispute that it failed to respond to the plaintiff's Certificate of Assessment within 60 days, such that it is therefore deemed to have accepted the assessment. However, the first defendant submits that, notwithstanding s28LW(4), s28LZH of the Act compels this Court to accept the Medical Panel determination, such that the plaintiff is also prohibited from claiming non-economic loss damages against the first defendant in respect of this claim.

17 The plaintiff's primary submission was that there is no conflict between s28LW(4) and s28LZH(2), on the basis that s28LZH only applies to claims in which there has been a referral to a Medical Panel under Division 5. In circumstances where the first defendant was deemed to have accepted the assessment, and made no such referral to a Medical Panel, the plaintiff contends that s28LZH does not therefore apply in relation to her claim against the first defendant.

18 The first defendant submitted that the wording in s28LZH(2) obliges a court "in any proceeding on the claim" to accept a Medical Panel's determination that the injury is not a significant injury for the purposes of that Part of the Act.

19 I accept that the plaintiff's damages Writ constitutes a proceeding.

20 The first defendant submitted that while the term "claim" is not defined in the Act, the term "claimant" is defined in s28LB to mean:

" a person who makes or is entitled to make a claim for damages that related to the injury to a person caused by the fault of another person."

21 Section 28LZM applies to "a claimant who brings a proceeding in a court in respect of a claim for damages for non-economic loss to which the Part applies."

22 The plaintiff's prescribed information provided in accordance with s28LT(2) referred to both defendants, the same accident circumstances and the same claimed consequences. The first defendant submitted that this was the "claim" referred to in s28LZH(2) of the Act, and that this section was therefore applicable to all defendants under that particular claim.

23 While such an argument may initially appear to be convincing, such a ruling would ignore the existence of a previously deemed significant injury, and would therefore subsequently disentitle a plaintiff from claiming non-economic loss damages as against a defendant who was previously deemed to have accepted the assessment. As a general principle, if a common law right is to be extinguished, it must be done so expressly, with clear words of statute.

24 The common law entitlement for an injured person to claim non-economic loss damages was extinguished by this Act, save for an entitlement created under Part VBA of the Act. In this case, the plaintiff's entitlement to claim non-economic loss damages in respect of the first defendant was enlivened after a period of 60 days in which the first defendant failed to respond to the plaintiff.

25 The plaintiff urged me to find that she was deemed to have a significant injury as against the first defendant, and that such an entitlement cannot subsequently be extinguished by virtue of the second defendant's referral to a Medical Panel. In short, the plaintiff submitted that "there cannot temporarily be a significant injury that is taken away by a Division that has no application to the dispute between the plaintiff and the first defendant".

26 It was submitted that the plaintiff is entitled to recover non-economic loss damages against the first defendant, provided she file a statement with the court that the first defendant was deemed to have accepted her Certificate of Assessment, (as required by s28LZM(4) of the Act).

27 Part VBA of the Act clearly contemplates situations in which there are multiple respondents to a claim, as evidenced by numerous sections in this Part.

28 Section 28LWC of the Act provides that one respondent's acceptance of an assessment under Division 4, cannot bind any other respondent.[1]

29 Section 28LZM sets out the requirement of a plaintiff to file with the court, documentary evidence as to how it is the plaintiff is entitled to claim non-economic loss damages in respect of "an injury caused by the fault of another person." Section 28LZM(2)(b) provides for the plaintiff to file a copy of the written agreement, upon which it intends to rely, of "any respondent" under Division 4 to waive the requirement for assessment in respect of the injury. I consider this section to demonstrate that this Part contemplates situations in which there is more than one respondent to a claim, and the possibility of there being more than one gateway through which the plaintiff is entitled to recover non-economic loss damages as against each respondent.

30 It is also clear that this Part contemplates situations in which there may be more than one referral to a Medical Panel. It permits the Convenor of a Medical Panel to consolidate referrals, if two or more respondents refer in respect of the same assessment.[2] However, such consolidation would not be possible if multiple referrals concerning the same assessment are made at different times, and in particular, if a subsequent referral is made by another respondent, after there has already been a Medical Panel determination in respect of the same assessment. While such a situation may be rare, it is possible that there could be two different findings by two separately convened Medical Panels - one in which a plaintiff is found to satisfy the threshold, and one in which it is not. In such a situation, I consider both sub-sections of 28LZH would apply to the relative respondent who referred the matter, in circumstances where sub-sections 28LZH(1) and 28LZH(2) are not put as alternatives, or separated by the word "or".

31 In view of this finding, I am satisfied that s28LZH(2) is to be read narrowly - that is, in relation to a referral made under Division 4 by a particular respondent. In this case, the second defendant, acting on its own behalf. In such circumstances, the determination of the Medical Panel would not therefore have any application to the first defendant in this case.

32 If I am wrong, however, in respect of s28LZH having no application as between the plaintiff and the first defendant in this case, it is necessary for me resolve the apparent conflict between s28LW(4) and s28LZH(2).

33 In resolving the ambiguity between these sections, both parties urged me to consider the purpose of the legislation. The plaintiff referred me to the High Court decision of Project Blue Sky Inc v Australia Broadcasting Authority[3] in which it was said that:

"A legislative instrument must be construed on the prima facie basis that provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language which maintaining the unity of the statutory scheme."[4]

(Footnotes omitted.)

34 The first defendant submitted that the primary purpose of this Part of the Act, was to prevent people with insignificant injuries from recovering non-economic loss damages. In support of this proposition, I was referred to Premier Bracks' Second Reading Speech for the Wrongs and Limitation of Actions Acts (Insurance Reform) Bill, in which he said:

"After careful consideration ... the government has decided to implement a threshold for access to general damages - that is damages for non-economic loss ... the bill therefore provides that that general damages are only recoverable where a claimant has suffered 'significant injury'." (p. 1782)

...

"Section 28LE restricts the recovery of damages for non-economic loss in proceedings to persons who have suffered significant injury ... The reasons for the restriction on the courts' ability to award damages for non-economic loss is to restrict the costs to the community of claims for minor injuries through establishing a more reasonable balance between the impact of victims on injuries caused through another's negligence and the amount of damages they receive." (p. 1786)

35 Further, in relation to what the Parliament intended by s28LZH, Mr Bracks said as follows:

"Section 28LZH requires a court to accept a determination by a medical panel of a threshold level for the purpose of determining the threshold to the recovery of damages for non-economic loss. Section 28LZI provides that there is no appeal on the merits to a court from an assessment or determination by a medical panel.

The reason for requiring a court to accept the medical panel's determination and to prevent appeals on the merits from medical panel assessments and determinations is to streamline the procedure for determining the threshold for recovery of damages for non-economic loss and to ensure that the courts do not, over time, substitute non-medical criteria in place of the opinions of panels of medical experts on medical matters."

36 I was also referred to the Court of Appeal decision in Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors [5], in which it was said that :

"In our view, this submission mischaracterises both the nature of the function performed by a panel under the Wrongs Act and the effect of the panel's decision. The panel is not deciding any question of legal right, nor is it determining any 'issue' as between the person who wishes to sue for non-economic loss and the person against whom action is proposed. Nor does the panel's decision 'extinguish rights'. The entitlement to sue is limited by the legislation. The right to sue for non-economic loss has been taken away, by statute, from all persons other than those who have suffered significant injury (as defined)."[6]

37 The plaintiff maintained its principal submission that Division 5 of Part VBA has no application to the plaintiff's claim in respect of the first defendant, as under Division 4, the plaintiff was deemed to suffer a significant injury pursuant to s28LW(4) of the Act. The plaintiff then submitted that I consider the purpose of Division 4 of Part VBA; that being the speedy resolution of disputes in relation to significant injury. This proposition was said to be supported by a decision of Justice Kaye in Mikhman v Royal Victorian Aero Club & Ors,[7] in which he said,

...it is relevant that Division 4 and Division 5 of Part VBA prescribe a series of time limits, within which each particular step, in the statutory scheme, is to be carried out. The evident intention of the statute is to provide for a speedy resolution of the threshold question as to whether a claimant, in a particular case, has sustained a "significant injury". [8]

Each of the foregoing provisions indicate a statutory intention that the time limits, prescribed for each of the steps to be taken leading to the assessment of impairment by a medical panel, must be strictly complied with. They are part of a statutory scheme, in which the timetable is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of impairment of a claimant."[9]

39 I accept it was the clear intention of parliament that only those claimants with a significant injury be entitled to recover non-economic loss damages. However, I also accept that the statutory timetable and the deeming provision in s28LW(4) was introduced by parliament to ensure that respondents respond to an assessment in a timely manner.

40 As at 27 November 2017, the plaintiff had a significant injury in accordance with the Act. The parliament intended that a person with a significant injury is entitled to claim non-economic loss damages, and that such a claim should proceed in a timely manner. I consider it would frustrate those intentions if I were to accept the submissions of the first defendant in this case.

41 In support of her application, the plaintiff relied upon a decision of her Honour Judge Morrish in Hart v Director of Housing & Anor.[10] In that case, the plaintiff sought damages in relation to injuries she sustained when she fell down a flight of stairs in public housing. Ms Hart had initially sued the Director of Housing which, pursuant to s28LW(4), was deemed to have accepted the Certificate of Assessment served upon it. After issuing proceedings against the first defendant, Ms Hart subsequently joined a second defendant to the proceeding.

42 The second defendant then referred a medical question in relation to the impairment assessment to a Medical Panel. That Medical Panel subsequently determined that Ms Hart did not satisfy the requisite impairment threshold. As is the situation in the case before me, the first defendant then sought to avail itself of the Medical Panel's determination that the plaintiff did not have a significant injury, and was not therefore entitled to recover non-economic loss damages.

43 Morrish J acknowledged the conflicting provisions within the Act and, after considering the competing submissions, ultimately determined that the plaintiff was entitled to recover non-economic loss damages from the first defendant. Her Honour concluded that it would be inconsistent, unfair and illogical to have a significant injury removed by virtue of a subsequent event, which would not have occurred had the referring party never been joined to the proceeding.

44 In this current application, the plaintiff urged me to follow the decision in Hart, emphasising the importance of judicial comity and consistent decision making in respect of the same legislative provisions.[11]

45 Whilst acknowledging the importance of judicial comity, the first defendant submitted that I was not bound to follow the decision in Hart, and that I should not do so if I had formed a contrary legal view as to the interpretation of the two legislative provisions. Further, the first defendant submitted that the facts of this case are distinguishable from those in Hart, such that I should make a contrary ruling. It was submitted that in Hart, the Writ was originally issued against only one defendant, with a second defendant subsequently joined at a later time. I accept that a large part of Morrish J's reasons dealt with the principles and consequences of joinder in a proceeding. In this case, the first defendant contended that there was no joinder, but one proceeding, with two defendants from the outset.

46 Even if I were to accept the submissions of the first defendant, that the facts of the case before me are distinguishable from those in Hart, I consider there to be a further insurmountable difficulty faced by the first defendant. This issue was also considered by Morrish J in Hart and is irrelevant to the issue of joinder. Under s28LZM of the Act, there is no ability for the first defendant to file the Medical Panel determination with this court. The section only contemplates a claimant filing a Medical Panel determination with the court.

47 The first defendant submitted that it would "fly in the face" of s28LZM(3) if the Medical Panel's decision was not filed by the claimant. I do not accept this submission. As noted previously, each sub-section in s28LZM, is directed at the claimant informing the court as to the basis upon which the plaintiff is entitled to claim non-economic loss damages, as against each respondent. If there is no entitlement to recover non-economic loss damages, then there is nothing to file, as there is no claim for such damages to be made. I can see no obligation on a plaintiff to file a Medical Panel determination that she does not seek to rely upon.

48 In this case, the plaintiff can file a statement with the court pursuant to s28LZM(4) in respect of the first defendant, but she has nothing to file in respect of the second defendant, as she has accepted that there is no entitlement to claim non-economic loss damages against the second defendant. There is no provision in the Act for a defendant to file a Medical Panel determination it seeks to rely upon. I consider this to constitute a further reason for which the first defendant is prevented from relying upon the Medical Panel determination in this case.

49 In its submissions, the first defendant also relied upon s28LF of the Act, which, in defining what constitutes a significant injury, makes no reference to an injury deemed under s28LW(4).

50 However, I accept the plaintiff's submission, that as against the first defendant, a Certificate of Assessment was issued by Dr Kennedy. In circumstances where the first defendant did not then refer a question to the Medical Panel, the plaintiff has a significant injury pursuant to s28LF(1)(aa) of the Act.

51 For the reasons detailed above, I am satisfied that the plaintiff is entitled to claim non-economic loss damages as against the first defendant in this case.

[3] [1998] HCA 28; (1998) 194 CLR 355

[5] [2013] VSCA 58

[7] [2012] VSC 42

[10] [2013] VCC 142

[11] Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 at [52]