//
[2012] VCC 1247
General information, not legal advice.
County Court of Victoria
2012-08-31
Original judgment source is linked above.
1 This is an application by the Plaintiff for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 ('the Act') made by Originating Motion issued on 5 March 2101. Leave is sought in relation to damages for both pain and suffering and loss of earning capacity.
**2 A preliminary issue has arisen whereby a determination is required as to the permissible scope of the Plaintiff's application.
3 An affidavit of Apostolos Paul Zaparas Solicitor sworn 23 August 2012, together with exhibits, was filed on behalf of the Plaintiff.
4 An affidavit of Gino De Biase Solicitor sworn 23 August 2012, together with exhibits, was filed on behalf of the Defendant.
5 The Defendant claims that the Plaintiff is limited in its application to pain and suffering consequences only.
6 In my view, for reasons more fully set out below, the Plaintiff is entitled to seek leave to bring proceedings for the recovery of damages in respect of serious injury, relying upon consequences in respect of both pain and suffering and loss of earning capacity.**
**7 By letter dated 9 November 2011, the Plaintiff's solicitors lodged an application under s 134AB(4)(a)(i) of the Act (the 'Initial Application') with the Victorian Workcover Authority (the 'Authority') seeking a determination as to serious injury. The Initial Application was in the form required by s 134AB(5) and indicated that a serious injury was being claimed only in relation to pain and suffering consequences. In particular:
a) In Form A, the Plaintiff had marked 'Yes' alongside consequences for 'pain and suffering' and 'No' alongside consequences for 'loss of earning capacity;' and
b) In the draft Statement of Claim, under the Particulars of Claim, appears the statement:**
(c) The plaintiff makes no claim for loss of earnings or loss of earning capacity.
**8 The Plaintiff had signed all required documents and consents, as part of the Initial Application.
9 On about 19 December 2011, the Plaintiff's solicitors identified that a mistake had been made in the documentation, which did not therefore reflect the Plaintiff's instructions.
10 By letter dated 20 December 2011, the Plaintiff's solicitors wrote to the Authority as follows:**
Due to an oversight the application was submitted for pain and suffering only when it should have been submitted for both pain and suffering and loss of earning capacity. We confirm the applications for both pain and suffering and loss of earning capacity. We enclose amended form A and draft statement of claim.[1]
**11 The amended Form A was identical to the Form A in the Initial Application, except that there was now a cross in the box "Yes" for loss of earning capacity on page 4.
12 In the amended Statement of Claim, paragraph (c), under particulars of claim, was replaced by new paragraphs (c), (d) and (e), which provided for a claim for loss of earnings in employment.
13 In response, by letter dated 22 December 2011,[2] solicitors for the Authority stated to the effect that the proposed amendments amounted to a further application which is precluded by s 134AB(21).
14 By letter dated 27 February 2012,[3] solicitors for the Authority advised of its determination pursuant to s 134AB(7) that:**
15 By letter dated 27 March 2012, the solicitors for the Authority advised:
Further to our letter dated 1 February, we confirm your application to limit it to pain and suffering. You are not entitled to seek leave for the recovery of damages in respect of pecuniary loss. We are of the view that you do not satisfy those requirements. We attach a notice. [which related to costs entitlements].
We're instructed that in the event you agree that your client is not entitled to bring a claim for leave to bring proceedings for damages for loss of earning capacity, the Authority will consent to an order entitling the plaintiff to pain and suffering damages only.
**16 By Originating Motion dated 29 February 2012 and issued in this Court on 5 March 2012, the Plaintiff sought leave to commence common law proceedings for the recovery of damages for a serious injury (the Leave Application').
17 By facsimile transmission dated 27 March 2012,[4] solicitors for the Authority advised the Plaintiff's solicitors that:
a) in their view the Leave Application was limited to the pain and suffering consequences of the Plaintiff's injury; and
b) in the event that the Plaintiff agrees that she is not entitled to bring a claim for loss of earning capacity, then the Authority will consent to an order which would entitled her to proceed with a claim for pain and suffering damages only.
18 The facsimile also enclosed a Notice pursuant to s 4 Part A of the WorkCover (Litigated Claims) Legal Costs Order 2010 to the effect that the Authority is satisfied that the injury suffered by the Plaintiff in the course of employment, satisfies the requirements of s 134AB(38)(b)(i) but not the requirements of s134AB(38)(b)(ii). In consequence, the Authority is liable for professional costs awarded to the worker's legal practitioner, according to the table in the Costs Order which deals with an application for pain and suffering only.**
**19 The scheme under s 134AB of the Act provides a complex series of pathways for a worker seeking to issue proceedings for the recovery of common law damages, as a result of suffering an employment related serious injury. I will only refer to those provisions which are relevant to this case.
20 Section 134AB(1)(a)(iii) provides that an application for the recovery of damages may only be made as permitted by and in accordance with this section. In this case, in accordance with s 134AB(4)(a)(i), the Plaintiff accepted an earlier determination of impairment and then made an application to the Authority seeking a determination as to serious injury.
21 Subsection 134AB(5) provides to the effect that an application must be in a form approved by the Authority and accompanied by specified documents and consents. The application must also include all information and medical reports then in existence, which the worker may seek to rely upon, including in any subsequent proceeding.
22 Subsection 134AB(5AA) provides to the effect that while the application is on foot, the worker authorises the Authority to assemble information and material relevant to his or her application and that authority subsists until the application and any proceedings brought in accordance with the section, following the application, are heard or determined or it is withdrawn.
23 Subsection 134AB(5A) provides that the application to the Authority needs to be served on each person against whom the worker claims to have a cause of action.
24 For the purpose of this case, ss 134AB(7) provides:**
The Authority or self-insurer must within 120 days ...of receiving the application advise the worker in writing:
(a) that the worker is deemed to have a serious injury; or
(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self insurer will issue a certificate under subsection 16(a).
**25 If the worker is deemed to have a serious injury, then ss (8) provides that the advice from the Authority [under ss(7)(a)] is to be accompanied by all relevant medical reports and affidavits known to the employer or authority, upon which they intend to rely in any proceedings brought by the worker in accordance with this section or in any related proceedings.
26 Subsection 134AB(9) provides to the effect that if the Authority fails to advise the worker within 120 days of making the application, then the worker is deemed to have suffered a serious injury.
27 Accordingly, the scheme provides that when the worker makes an application, the Authority thereafter has 120 days in order to obtain further medical material, pursuant to the authority signed by the worker for that purpose; assess the application; and make a determination. If the Authority fails to make a determination within the prescribed 120 days, then the worker, by operation of the Act, automatically has a serious injury. There is no provision extending time to the worker.
28 Subsection (11) renders material which has not been exchanged in accordance with these provisions, inadmissible in proceedings in accordance with this section.
29 Pursuant to s 134AF of the Act, Ministerial Directions have been issued with respect to the procedures under s 134AB. These Directions can and do include directions about the provision of information by affidavits and must be complied with by the person to whom the direction applies.
30 In particular, Direction 5 of the Ministerial Directions sets out what the contents must be, of the application to the Authority and the supporting documents; and attaches a Form A, approved by the Authority, for the purpose of making the application. The worker is required to, inter alia, specify the injury or injuries relied upon and state whether the worker relies upon consequences with respect to pain and suffering and/or loss of earning capacity.
31 If the worker has failed to comply with the Ministerial Directions, the Authority may issue a Notice under Direction 15.1, specifying in what way the supporting documents do not comply. The application will then be suspended for the purpose of time running, until the Authority gives notice that the worker has complied with Direction 5.
32 Section 20C provides that the Authority shall exercise its powers and perform its functions under the Act subject to the general direction and control of the Minister; and any specific directions issued by the Minister.
33 If, pursuant to ss (7), the Authority has: (a) said that the worker is not deemed to have a serious injury; and (b) said that it will not issue a certificate under ss (16)(a); then ss (16)(b) provides that an application to the court must be made within 30 days after the worker receives the advice under ss (7).
If a worker makes an application under subsection (4) in respect of an injury, the worker must not make a further application under that subsection in respect of that injury.
**35 In my view the following questions are raised by this preliminary application:
a) When is an application, for the purpose of s 134AB(4), made or completed?
b) Is a worker entitled to make amendments to an application prior to a determination being made by the Authority pursuant to s 134AB(7)? and
c) What constitutes a further application for the purpose of s 134AB(21)?**
**36 Consistent with the principles of statutory interpretation endorsed by the High Court and referred to below, it is appropriate to focus upon the context, general purpose and policy of the provisions enabling an application to the Authority; and their consistency and fairness, in the context of the overall scheme provided under s 134AB.
37 The s 134AB(4) application is merely the start of the process. The detailed provisions, both in the Act and in the Ministerial Directions, are designed to facilitate a relevantly informative application, which can then be assessed efficiently, fairly and expeditiously by the Authority. These are not intended to operate as penal provisions but as enabling provisions. Accordingly, the provisions must be interpreted in a way which will facilitate the making of an application by a worker; and not in a way which will obstruct such application at the earliest stage.
38 The Defendant's submissions, outlined below, focus upon certain express provisions and seek to give them the narrowest interpretation. While superficially attractive in its simplicity and clarity, in my view such an approach is fundamentally misconceived. In particular, it produces a result which is inequitable to the worker, without identifying any injustice to the Authority or undermining of the legislative scheme generally, which is thereby avoided.**
**39 The Defendant's position is simply stated. The Leave Application is confined to the scope of the Initial Application, namely a claim for pain and suffering consequences only, by reason that:
a) The scheme provided under s 134AB requires that the Leave Application made under s 134AB(16)(b) mirror the Initial Application made under s 134AB(4);
b) Section 134AB together with the Ministerial Directions are highly prescriptive in terms of the documents and information which must be lodged the time limits which must be observed; and the consequences for failing to comply; and
c) The purported amendments made to the Initial Application, amounted to a further application which is prohibited by s 134AB(21).
40 In essence the Counsel submitted that the Plaintiff is bound by the Initial Application, which in this instance was expressly limited to pain and suffering only. The Act does not permit an amendment or a further application in relation to the same injury.
41 Counsel submitted that an application to the Authority, made under s 134AB(4) and the accompanying procedures is a prerequisite to the worker bringing common law proceedings and to that end, will determine which particular route will be available to the worker. Counsel referred to a number of specific provisions which connect the initial application under s 134AB(4) with any subsequent application to the court under s 134AB(16)(b):
a) Subsection (16)(b) provides that the application to the court must be made within 30 days of the worker receiving advice under ss (7);[5]
b) The ss (4) application must be accompanied by all medical reports and affidavits then known to be in existence and upon which the worker intends to rely in any subsequent proceedings under s 134AB;
c) The authority to release information required of the worker under ss 5(b) cannot be revoked until all proceedings brought in accordance with s 134AB have been completed or the worker has otherwise withdrawn the application [ss(5AA]; and
d) Certain medical reports and other materials will be inadmissible in proceedings brought in accordance with s 134AB, unless disclosed in the initial s 134AB(4) application or as otherwise provided under ss (11).
42 Defendant's Counsel submitted to the effect that the prescriptive nature of these provisions is designed to ensure that the application contains all relevant information, to enable the Authority to make a determination and to ensure that only cases involving a real dispute then come to court.
43 Counsel drew upon the principles of statutory construction enunciated by the High Court in Project Blue Sky v Australian Broadcasting Authority[6]**
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways(NSW) v Agalianos, Dixon CJ pointed out that "'The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[7]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[8]
**44 Counsel contended that, consistent with these principles, an application to the court under ss(16(b) must be regarded as flowing directly from and being confined by the scope of the preceding application under ss (4).
45 Relying upon section 134AB(21), which expressly prohibits a further application in relation to the same injury, Counsel further contended that once there is a compliant application made and the 120 days starts running, there may be no further application. The statute does not provide for amendment.
46 Counsel referred to the ordinary [Macquarie Dictionary] meaning of 'further' to mean 'additional' and 'more'. Counsel submitted that this meaning was also endorsed by the Privy Council in Burnes v Trades Credits Ltd[9] where the Court held that 'further advance' was a reference to 'furnishing of an additional principal sum'. I note that the case of Barnes dealt with the proper construction of certain provisions in a deed of guarantee, where the meaning and context of certain commercial terms and expressions were relevant. I do not find this case particularly relevant in the context of interpreting s 134AB (21).
47 Counsel also sought to rely upon the comments of His Honour Judge Bowman in Georgopoulos v Silaforts Painting[10] where, in a different context, His Honour had occasion to consider the operation of s 134AB(21).
48 The Georgopoulos case concerned a worker who had made an application under s 134AB(4), relying upon paragraph (a) only of the definition of serious injury. The Authority rejected the application and the worker failed to make an application for leave under ss (16)(b) within the prescribed time. Subsequently a new application was made in relation to the same injury, but this time relying upon both paragraphs (a) and (c) of the definition of serious injury. The Authority in that case simply argued that the second application was a nullity because it related to the same injury, the subject of the earlier application.
49 Consistent with s 134AB(21), His Honour ruled that the new application was valid only insofar as it related to a claim based upon paragraph (c) of the serious injury definition.**
The Authority's primary contention is that the s.134AB scheme provides only for a single application in respect of injury arising out of the same event or circumstance. [11]
Thus, in the present case, once the time limit in relation to the earlier application have elapsed, the application process was at an end. Any common law proceedings subsequently brought upon the same cause of action would be in contravention of the scheme and the purported preceding would be a nullity...[12]
50 His Honour also referred to the amendment which had been made to ss (21):
... whereas prior to in the old version of s.134AB(21), prior to 17 June 2009, the prerequisite for preclusion was a court application which had failed, it is now simply the making of an administrative application. This was obviously intended to broaden this particular aspect of the preclusion, so as from 17 June 2009 henceforth, to exclude applications brought in relation to injuries which had previously been the subject of an application, whether failed or successful.[13]
...the legislature has chosen to employ particular wording in the relevant subsection. That wording sets out in comparatively simple form what a worker cannot do in relation to an administrative application. He or she must not make a further application in respect of an injury which has already been the subject of an application. The type of concepts known in the common law in relation to finality and the bringing of only one concluded application in respect of tort simply have no application. As desirable as such concepts may be, ultimately it is the wording of the Act that must be applied.[14]
**51 I will return to the Georgopoulos case shortly.
52 Finally, Counsel referred to the WorkCover (Litigated Claims) Legal Costs Order 2010 and submitted that the form of the Costs Order was further confirmation that an applicant had to ensure that the application was correct at the outset.**
**53 The statutory provisions and Ministerial Directions which deal with an application under s 134AB(4), expressly contemplate that the Authority will gather further information, for instance, by requiring the worker to attend for medical assessments. Furthermore, the Authority may give notice to the worker, under Direction 15.1 of the Ministerial Directions, and suspend time running, specifying such information or documents which have not been provided by the worker, as required by the Ministerial Directions. Where the Authority requires information from the worker, which should have been included in the initial documentation, then the Authority is not prejudiced by time continuing to run.
54 Accordingly, the legislative regime clearly contemplates that the information available to the Authority, prior to making its determination, will not be limited to that which was initially lodged by the worker.
55 The time limit provided, within which the Authority must make a determination or else the worker will be deemed to have suffered a serious injury, is clearly designed for the benefit of the worker. The Authority cannot simply sit on its hands and cannot take an indeterminate period in which to make a decision. It must act diligently and the prescribed maximum time limit operates to give certainty to the worker.
56 In these circumstances, it would be extra ordinary and contrary to the purpose and intent of the express provisions, if the worker were not permitted, within the 120 day period and otherwise prior to a determination being made by the Authority, to amend the Form A or otherwise add further affidavits or medical reports or other relevant information. In my view, a worker is entitled to amend or add to the application in this way and indeed there is no express provision to the contrary. Of course, any such amendments or additions, must be limited to the original injury or injuries relied upon and the particular serious injury claimed, as defined under s 134AB(37).
57 Plaintiff's Counsel submitted to the effect that reliance made by Defendant's Counsel on the case of Georgopoulos is misplaced. I agree. His Honour was not of course considering an equivalent factual circumstance to the current case and in particular was not called upon to directly consider when an application, for the purpose of s 134AB(4), was made or completed. Nevertheless, His Honour does make the following pertinent comments in support of the interpretation advanced by Plaintiff's Counsel in this case.**
**58 In my view, His Honour has implicitly recognized that ss 134AB(4) and (5) contemplate an application process. I agree. A further application for the purpose of s 134AB(21) is precluded once that process is finally completed. That can occur either by the Authority making a determination, pursuant to ss (7) within the prescribed 120 day period; or by a deemed determination in favour of the worker arising pursuant to ss (9). Prior to either such event occurring, the application process is still extant.
59 I also accept Counsel's submission that s134AB(21) applies to stop further applications being made after there has been a determination made or deemed to be made, by the Authority. Section 134AB(21) sensibly must be interpreted to mean that once an application under sub-s.(4) has been completed, then you cannot make a further application. Subsection (21) says nothing about the actual process or procedure for making an application under ss (4). If ss (21) were intended to limit the process of an application under ss (4) in the manner claimed, then such limitation would have been explicit within those subsections dealing with the application.
60 I accept Counsel's submission that it is not the filing of the initial documents by the worker which completes the application. Rather, it is the resolution of the application, when a determination is made by the Authority or a decision in favour of the worker is deemed to be made, if the Authority fails to make a determination within the prescribed period.
61 I further accept the following submissions made by Counsel:
a) The Ministerial Directions do not and indeed cannot seek to change applicable legal principles. They are Directions designed to give efficiency to the procedures required under s.134AB;
b) While Direction 5.4(b)(iii) requires the worker to specify whether the worker relies upon consequences with respect to pain and suffering and/or loss of earning capacity, it does not follow that such specification cannot be amended during the application process. Indeed if the worker had inadvertently failed to complete that part of the Form A altogether, then the Authority would issue a failure to comply Direction under 15.1;
c) The Authority determines whether the worker making a claim has a serious injury. Perhaps somewhat curiously, neither ss7(a) or (b) nor ss 16(a) explicitly directs the Authority to specify whether a deemed serious injury or certificate consenting to the bringing of proceedings, must specify whether the Authority has accepted a serious injury for the purpose of pain and suffering consequences only or whether it has accepted a serious injury on both bases. Accordingly, it is implicit in a determination favourable to the worker, that the Authority has accepted a serious injury on the basis or bases claimed;
d) Counsel advised, without objection by Defendant's Counsel, that as a matter of practice all applications, in accordance with the Ministerial Directions, must provide all relevant information relating to employment, earning capacity, rehabilitation and training etc. whether or not the Form A includes an application for loss of earning capacity;
e) Where the worker seeks to amend the application, either by changes to information contained in the Form A and/or by provision of further affidavits or medical reports, such amendments are made with effect from the time when the application is first lodged. The time limit provided under ss (7) is not suspended;
f) The Authority is not prejudiced by the late provision of material. Indeed a worker who seeks to amend or provide additional information, subsequent to the initial filing of the application, will merely place themselves at risk of having the application refused, within the prescribed time. Having refused an application, the Authority is not thereby precluded from entering into further discussions with the worker and ultimately making a favourable determination as to serious injury;
g) In the present case, it is accepted that no additional material was in fact required to accompany the amended Initial Application;
h) In subsequent proceedings before the court under ss 16(b), there are restrictions placed upon the parties, in terms of relying upon documents, which were known but not disclosed in the initial application [or the further period provided by ss (10)]. However, there is nothing in the Act which limits the jurisdiction of the court to what the Authority had before it for assessment. This necessarily follows from the fact that the court has to determine whether the worker has a serious injury as at the date of hearing, not at the date the Authority considered the initial application for the purpose of s 134AB(4). Accordingly, there is not the strict nexus as advanced by the Defendant, between the Initial Application and the Leave Application; and
i) The operation of the Costs Order is irrelevant to a proper determination of the Plaintiff's entitlement to claim leave under both bases. The Costs Order is merely consequential.
62 Plaintiff's Counsel made a further submission, for which it is not necessary to reach a conclusion, in view of my findings to this point. I include this submission only for completeness.
63 Counsel submitted that the jurisdiction of the court, for the purpose of an application under ss (16)(b), is triggered by the advice given by the Authority to the effect: 'You do not have a serious injury and we are not going to give you a certificate.' That is, the triggering of this jurisdiction is not limited to or determined by the form of certificate given.
64 Accordingly, Counsel submits that the Initial Application does not in any way limit the bases upon which the Plaintiff can seek leave of the court. If the Initial Application only referred to pain and suffering and was not amended in the way in which it was in this case, then the Plaintiff would still not be precluded from arguing both bases before the court. Furthermore, Counsel went a step further and submitted that even if the Authority has given a certificate in relation to the only basis for which a worker applied, then the worker can still come to the court seeking leave to claim for loss of earnings as well.**
**65 In accordance with the reasons given I find that:
a) An application, for the purpose of s 134AB(4), is not completed until the expiration of the prescribed time period or such earlier determination made by the Authority pursuant to s 134AB(7);
b) A worker is entitled to make amendments or additions to an application prior to a determination being made by the Authority pursuant to s 134AB(7), provided that any such amendments or additions relate to the same claimed injury or injuries; and continues to rely upon the same definition of serious injury;[17] and
c) A further application for the purpose of s 134AB(21) does not arise until the application process under s 134AB(4) has been determined by the Authority or by operation of s 134AB(9).**
**66 The Plaintiff's application under s 134AB(16)(b) of the Accident Compensation Act 1985 ('Act') be for both pain and suffering and loss of earning capacity consequences of the claimed injury.
67 For the purposes of s 134AB of the Act, and any legal costs orders made under ss 134AG or 134AGA of the Act, the Plaintiff's application under s 134AB(4) be taken to be the application delivered to the Defendant on or about 20 December 2011, being for pain and suffering and loss of earning capacity consequences.
68 The advice given by the Defendant on 27 February 2012, pursuant to s 134AB(7) of the Act, be taken to relate to the application referred to in the above Order.
69 The Notice issued by the Defendant, pursuant to s 4 part A of the WorkCover (Litigated Claims) Legal Costs Order 2010 and dated 27 March 2012, be taken to relate to the application referred to in the above Order.
70 The parties agree on costs, however in default of agreement the following orders shall apply:**
[5] Or later with the consent of the Authority under ss (20).
[10] Georgopoulos v Silaforts Painting Pty Ltd & Worksafe Australia 2010 VCC, 16 December 2010.
[17] Recognizing that the worker may have relied upon more than one definition.
Dostal
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