Hiron v State of New South Wales & Anor

Civil Liability Act 2002 (NSW) LEGISLATION CITED : Civil Procedure Act 2005 (NSW) Workers Compensation Commission Rules 2003 Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Ferraro v WGE Pty Limited [2005] NSW WCC PD 98 (26 August 2005) CASES CITED : Thomson v WorkCover Authority of New South Wales [2004] NSWSC 282 Welsh v TNT Express [1993] NSWCC 15 (2 July 1993; (1993) 9 NSWCCR 345

Timothy Hiron PARTIES : State of New South Wales Workers Compensation Commission of New South Wales

COUNSEL : Mr M. Bozic SC / Mr D. Shoebridge (Pl) Mr J. Griffiths SC / Mr S. Finnane (Defs)

SOLICITORS : Taylor & Scott Lawyers (Pl) Crown Solicitor (Defs)

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30076/06 Timothy Hiron v State of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: In 2001, the plaintiff was an inmate of Parklea Correctional Centre. He was stabbed by another inmate with a pair of scissors and suffered personal injury. 2 In September 2004, he commenced proceedings in the District Court against the first defendant (the State of New South Wales). He relied on a cause of action framed in negligence and claimed damages in respect of the personal injury. 3 Subsequently, legislation was enacted (by amendment to the Civil Liability Act 2002 (NSW)) which had retrospective operation in relation to the District Court proceedings. This legislation commenced on 19 November 2004. 4 Part 2A thereof has application to his proceedings and the plaintiff falls within the definition of "offender in custody" within the meaning of s26A.

5 Part 2A contains, inter alia, the following:- "Division 2 Damages subject to 15% permanent impairment threshold 26C No damages unless permanent impairment of at least 15% No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%. 26D Assessment of permanent injury (1)The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 WC Act ). …. (3)If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act."

The plaintiff obtained a report dated 18 July 2005 from a surgeon (Dr Patrick). It has been served on the first defendant. There is no issue that in that report Dr Patrick did not address the question of whether or not the plaintiff had a degree of permanent impairment. Earlier the defendant had obtained two reports. One was from a gastroenterologist (Professor Duggan), dated 16 March 2005, which opined the degree of impairment as 0%. The other was a report from a psychiatrist (Dr Klug), dated 31 March 2005, which opined a degree of impairment as 4%.

6 On 20 August 2005, the plaintiff filed an application to resolve a dispute in the Workers Compensation Commission (the Commission). The application was expressed to be for a "Threshold Dispute for Work Injury Damages or Commutation." The injury description read "injury to abdomen and left loin." The reason for dispute was expressed to be whether the degree of permanent impairment from injury is at least 15%, as required by the Civil Liability Act. The application attached supporting documents and information (which included clinical notes from Blacktown Hospital, clinical notes from the Department of Corrective Services - psychology file, the report of Dr Patrick together with a letter from the solicitors for the defendant and a copy of the Statement of Claim filed in the District Court). It also identified documents and information intended to be used but not yet had (including Statement of Evidence from the plaintiff and a medical report from Dr McClure). 7 On 16 September 2005, the defendant filed a reply. It contained, inter alia, the following:- "To date, the Applicant has not served medical evidence pursuant to Section 26C Division 2, Part 2A of the Civil Liability Act 2002 establishing a degree of permanent impairment that meets the statutory threshold of 15%". 8 On 17 October 2005, a Deputy Registrar of the Commission advised that the matter was to be referred to an Approved Medical Specialist for assessment. 9 On 31 October 2005, the defendant filed in the Commission an Amended Reply. It contained the following:- "To date the Applicant has not served medical evidence pursuant to s26C Division 2, Part 2A of the Civil Liability Act 2002 establishing a degree of permanent impairment that meets the statutory threshold of 15%. As the applicant's expert does not say anything about the 15% threshold, there is no "medical dispute" and therefore the WCC does not have jurisdiction to resolve this matter." 10 On the same day, the solicitor for the defendant wrote to the solicitor for the plaintiff. It contained, inter alia, the following:- "To date, the plaintiff has not served medical evidence establishing a permanent impairment of at least 15%. I note you informed the WCC you would be providing a report from Dr McClure though this is not available as the plaintiff did not attend as he has returned to custody. Thus, there is no medical dispute."

The letter also foreshadowed an application for a stay pursuant to the provisions of s67 of the Civil Procedure Act 2005 (NSW) . 11 On 25 November 2005, the defendant filed a Notice of Motion in the District Court seeking various orders (including dismissal or stay). The Notice of Motion was heard by a judicial Registrar on 23 February 2006. He delivered judgment on 21 March 2006. The judgment contained, inter alia, the following:- "Section 26D (3) of the Civil Liability Act says that the Court may not award damages if there is a medical dispute and no assessment has been made. I agree with the Defendant's submission that there is no relevant dispute because the Plaintiff has not provided evidence of the percentage of impairment. The Defendant has therefore not raised a medical dispute and there was no nothing [sic] to refer to the Workers' Compensation Commission."

An order was made that the plaintiff serve a medical report providing an assessment of whole person impairment by 2 May 2006. 12 I digress to observe that the plaintiff has not complied with this order (on 9 May 2006, a Notice of Motion was filed seeking an extension of time until he has been examined by an Approved Medical Specialist). The submissions made in these proceedings are consistent with an intention not to obtain a medical report. 13 On 12 April 2006, the solicitor for the defendant wrote to the deputy Registrar. It sought to put the Commission on notice that its jurisdiction remained in dispute until the plaintiff complied with the order made by the judicial Registrar. 14 On 4 November 2005, the deputy Registrar advised the parties of, inter alia, the following:- "As the Defendant is challenging the jurisdiction of the Workers Compensation Commission to undertake the assessment of permanent impairment, the matter will not be referred for assessment subject to orders of the District Court following the scheduled directions hearing on 28 February 2006." 15 On 18 April 2006, the Commission informed the parties, inter alia, as follows:- "As per our letter of 4 November 2005, the matter will not be referred for assessment of permanent impairment by an approved medical specialist until the proceedings currently before the District Court have been determined. I note, from the letter of the Crown Solicitor's Office, that the matter before the District Court is next listed for directions on 17 May 2006."

16 At this point, I might digress again to observe that, for present purposes, it is not necessary for me to express any view as to whether or not the Commission was entitled to take the stances adopted in these two letters. Accordingly, I put these matters aside.

17 On 1 June 2006, the plaintiff filed a Summons in this Court. It sought, inter alia, declarations and an order concerning questions of jurisdiction. The second defendant (the Commission) has filed a submitting appearance. The first defendant (the State of New South Wales) opposes the relief sought. It has filed a Cross-Summons seeking, inter alia, the following:- "1. A declaration as to whether in the events that have occurred in the plaintiff's District Court proceedings, there is a "medical dispute" for the purposes of Section 26D(3) of the Civil Liability Act 2002 and Section 321(1) of the Workplace Injury Management and Workers Compensation Act 1998. " 18 A hearing took place on 28 February 2007. The parties had Senior Counsel. 19 The Court was presented with what was said to be a narrow issue. The course was adopted of first determining that issue (it was whether or not there was a "medical dispute" within the meaning of s321(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). It was thrown up by the Cross-Summons. This approach has the advantage of presently putting aside any potential issues concerning the role of the Registrar pursuant to that provision (it may be unnecessary to deal with any of those isues). 20 Both parties have relied on written submissions, which have been supplemented by oral argument. 21 The argument put on behalf of the plaintiff is encapsulated as follows:- "27. In the Plaintiff's submissions it is not a pre-condition to the existence of a dispute that there be medical evidence that the extent of the impairment is 15% or more. It is sufficient if the Plaintiff does not accept the assessment of the Defendant's medical experts, or alternatively, if the Plaintiff asserts permanent impairment of 15% or more and the Defendant fails to accept this." 22 The competing view put on behalf of the first defendant is as follows:- "36. In all those circumstances, it is submitted that there can be no "dispute" or "medical dispute" in circumstances where the claimant has not obtained any assessment from a medical practitioner establishing that the claimant's degree of permanent impairment is at least 15%. The provisions dealing with the referral of medical disputes for assessment are predicated on the parties obtaining their own medical assessments and, having obtained those assessments, are unable to agree on the degree of permanent impairment. The legislative scheme is not one which permits an offender to leapfrog the need to obtain a medical assessment in order for a medical dispute to crystallise and simply lodge an application for a "dispute" to be referred for assessment, based solely on the offender's unsubstantiated assertion that his injury meets the statutory threshold."

The reasoning process put forward to support that view includes the following:- "31. For the following reasons, it is submitted that, in the events that have occurred, no "dispute" or "medical dispute" exists for the purposes of sections 26D of the CL Act and 321 of the WIMWC Act. 32. First, it is made clear in section 322 of WIMWC Act that assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. 33. Secondly, in view of the provisions dealing with the inter-relationship between the CL Act and the WIMWC Act, the obligation imposed by section 322 applies equally to the assessment of the degree of permanent impairment of an offender for the purposes of the CL Act. That is so because the Minister has not yet exercised his discretion to issue specific guidelines for the purposes of applying the WIMWC Act to offenders and, in those circumstances the WorkCover Guidelines apply (see Clause 19 of Part 6 of Schedule 1 of the CL Act). 34. Thirdly, the obligation to assess the degree of permanent impairment in accordance with WorkCover Guidelines applies to assessments generally and also specifically to medical disputes which are referred to an approved medical specialist for assessment. 35. Fourthly, as the WorkCover Guidelines for the Assessment of Permanent Impairment make explicit, they are intended to be applied by medical practitioners. The scheme is not one which contemplates an individual person who is not a medical practitioner determining the degree of permanent impairment." 23 The parties were aware of only three authorities that were thought to be of possible assistance in dealing with the question in dispute. The plaintiff relied on Ferraro v WGE Pty Limited [2005] NSW WCC PD 98 (26 August 2005) (a decision of Acting Deputy President Deborah Moore) and Welsh v TNT Express [1993] NSWCC 15 (2 July 1993); (1993) 9 NSWCCR 345 (a decision of Geraghty J). The defendant relied on what was said in paragraphs 42 and 43 of the judgment in Thomson v WorkCover Authority of New South Wales [2004] NSWSC 282 (a decision of Bell J). 24 Section 319 (which appears in Part 7 of Chapter 7 of the Act) contains a definition of "medical dispute". The section contains the following:- " 319 Definitions In this Act: medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: …. (c) the degree of permanent impairment of the worker as a result of an injury" The section also contains a definition of "Approved Medical Specialist". 25 Section 321 of the Act is as follows:- " 321 Referral of medical dispute for assessment (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. (2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute." Section 322(1) of the Act is as follows:- " 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose." 26 In the determination of the narrow issue, I propose to first look at the question of whether or not there is a dispute. 27 The meaning to be attributed to "dispute" excited little argument. Whilst the first defendant submitted that there could be no "dispute", this contention was not the subject of elaboration. The dictionary meanings given to the word cover a wide range (including merely, absence of agreement and non-acceptance). The concept of inability to reach agreement seems to have been embraced by the first defendant in its submissions. 28 If regard be had to the relevant facts and circumstances of this case, I consider that the finding of fact that should be made is that there is a dispute between the plaintiff and the first defendant about the matter or a question about the matter of the degree of permanent impairment of the plaintiff as a result of his injury. What is being sought by him is an assessment as to whether or not the injury has resulted in a degree of permanent impairment that is at least 15% (which was described in the application as a "threshold dispute"). Presumably, what has been referred to as the "threshold dispute" falls within the category of being a question about any of the matters specified in (a)-(g) (in this case (c)). It seems to me that the said facts and circumstances reveal there is dispute both as to the "threshold dispute" and as to, inter alia, what is related thereto.

29 When regard is had to the narrative of what has happened since November 2004, it seems to me to be a finding supported by an abundance of material. 30 Whilst this reference is not intended to be exhaustive, I shall make particular mention of certain matters. The first defendant has had the plaintiff examined by its own medical experts. It is armed with evidence from those experts that demonstrates that, in their view, any degree of permanent impairment falls well short of the "at least 15%" requirement. The plaintiff does not accept those views. He has a report from Dr Patrick. In connection with his claim, the plaintiff has made application seeking an assessment of his permanent injury in excess of the threshold of 15%. He has brought this application for the purposes of enabling him to prosecute his claim for damages. Indisputably, the first defendant has not accepted that the "at least 15%" requirement has resulted from the injury. It has persisted with an inflexible approach that requires service by the plaintiff of medical evidence establishing a permanent impairment of at least 15%. In so doing, it has managed to frustrate the progress of both the District Court proceedings and the application in the Commission. The present position of the plaintiff appears to be that he wants the application to proceed to assessment and does not intend either serving any further medical evidence upon the first defendant or putting any such evidence before an Approved Medical Specialist. There is a state of affairs where no agreement can be reached between the parties. There is a hiatus or impasse.

31 For completeness, I should mention certain provisions that appear in Part 6, Chapter 7 of the Act (which is headed Court proceedings for work injury damages) and which were brought to the attention of the Court during submissions. S314 (which appears in Division 2 of Part 6, Chapter 7) contains, inter alia, the following:- " 314 What constitutes threshold dispute (1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or" ….

32 By reason of the provisions of s313 (which is contained in the same division), a threshold dispute prevents the commencement of court proceeding and the service of a pre-filing statement under Division 3 until the degree of permanent impairment has been assessed by an Approved Medical Specialist under Part 7. 33 The significance of these provisions has also not been the subject of full argument. However, these provisions illustrate the meaning that was intended to be given to "dispute" elsewhere in the Act. 34 There seems to be no issue that any dispute is in connection with a "claim" (which is defined in s4 of the Act). The real issue seems to be whether or not the "dispute" is a "medical dispute" as defined in s319. 35 Another matter not in dispute is that presently the plaintiff's application does not have medical evidence that demonstrates that the injury has resulted in a degree of permanent impairment that is at least 15%. As I understand the position, it is not advanced by the plaintiff that the content of the report from Dr Patrick and other material, by way of implication, supports that position.

36 If regard is had to a literal construction of "medical dispute" as defined in s319, it seems to me that it does not support the case advanced by the first defendant. The language only requires there to be a dispute between the parties about any of the specified matters or any question about any of them. 37 However, in conducting the construction task, the Court has to have regard to other matters (including the purpose of the legislation, other provisions contained therein and extrinsic material such as Parliamentary speeches). 38 In reaching my views, I have had regard to these matters and to the submissions made by the defendant.

39 After the conducting of that exercise, I have come to the view that the definition of "medical dispute" contemplates a dispute between the parties (and not a dispute between medical practitioners) about a specified matter or a question about any of them (these matters being of a medical nature).

40 Perhaps it also needs to be emphasised that the word "about" appears in the definition (the legislature has not used a word or words having a more specific meaning). It is a preposition that imports a degree of width (having a dictionary meaning of concerning; relating to; in regard to:). As a consequence, it seems to me that the medical dispute in the present case would not be restricted to an issue of whether or not the degree of permanent impairment was at least 15%. I consider that it would encompass dispute as to that which is, inter alia, related thereto. In this case, there are disputes that fall into that category. 41 Accordingly, I am not satisfied that the first defendant has made out its submission. It seems to me that there can be a "medical dispute" in the absence of competing medical assessments as to the degree of permanent impairment. I consider that such a dispute can exist in the absence of an assessment from a medical practitioner that the claimants' degree of permanent impairment is at least 15%. In the circumstances of this case, I am satisfied that there is a "medical dispute" within the meaning of s321(1) of the Act. 42 It may be helpful if observations are also made concerning one further matter which was also the subject of some argument. I refer to the contention of the first defendant to the effect that the claimant must support his application with a medical assessment (in his case an assessment demonstrating that his permanent impairment is of a degree of at least 15%). 43 The task of assessment is imposed on the Approved Medical Specialist. The Guidelines address the question of how the Approved Medical Specialist goes about the task of assessment. The Guidelines enable the doing of any one or more of enumerated things (consulting, calling for medical records and other information and requiring the claimant to submit himself or herself for examination). The Guidelines inform that, for a majority of matters, a medical examination will be necessary to be able to form an opinion. However, the Approved Medical Specialist has a discretion not to conduct a medical examination. The Guidelines also indicate the matters which the Approved Medical Specialist must consider in the exercise of that discretion (including the extent and detail of the information provided and any submission by the parties as to why a medical examination is required). 44 An examination of the provisions of the Act, the Guidelines and the Workers Compensation Commission Rules 2003 (the Rules) leads to the view that there is no prescription as to what material should be put forward by a claimant. Rule 79(2)(b) of the Rules requires that the application must have attached to it "all documents that the claimant wishes to be considered by the accredited specialist who is to assess the permanent degree of impairment." The Registrar is required to provide the Approved Medical Specialist with all information and documentation on which the parties propose to rely and which has been lodged with the Commission in accordance with the Rules. 45 Whilst it may be thought to be risky or even foolhardy to do so, it would seem to be open to a claimant to take his or her chances on achieving a successful result by relying on the examination (if any) made by the Approved Medical Specialist and other material that is before him or her for the purposes of the assessment (see, inter alia, s324 and clauses 19 - 23 of Chapter C). 46 What has been earlier said disposes of the narrow issue litigated by the parties. It may be that the Summons and Cross-Summons can now be disposed of without further hearing. If it be appropriate to do so, the parties may prepare short minutes. **********

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