Mugavin-Brown v St John of God Hospital [2001] VSC 166

11. In this case a written application dated 30 November 1998 was made by the plaintiff. It was followed on 31 March 1999, which I take it was within 120 days, by a document which purports to be a certificate under the Act. It is headed: "Section 135A of the Accident Compensation Act. Serious Injury Certificate. Mary Mugavin-Brown."

14. The terms of the certificate are significant. I think they should be read in full. They are as follows:

"For the purpose of s.135A of the Accident Compensation Act 1985 the authorised insurer certifies in respect of Shiralee Bailey that: (a) the authorised insurer has made the impairment determination referred to in s.135A(19) of the Act. (b) the authorised insurer is satisfied that the claimed injury is a serious injury within the meaning of s.135A and (c), consent is given pursuant to s.135A(4) of the Act for Mary Mugavin-Brown to bring proceedings for the recovery of damages in relation to injuries sustained by her as a result of an accident which occurred on 1 September 1993."

The certificate is then signed by a person whose signature is not readily legible but appears not to be the name typed at the foot of the certificate. That name is Barry Lingren. No point was made about any discrepancy between the signature and the typed name and I take that matter no further.

19. Sub-s.(2BA) of s.135A prescribes the form in which the application for a determination must be made. It also prescribes what documents must accompany the application. As I understand it there is no suggestion here that the application of 30 November 1998 failed to comply with the provisions of sub-s.(2BA).

22. That being so the next relevant provision is sub-s.(3) of s.135A which provides that if the Authority or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with s.91, be 30 percentum or more, the injury is deemed to be a serious injury within the meaning of this section.

25. The consequences are, as I understand it, that the worker is then entitled pursuant to the provisions of the Act to bring a proceeding of the kind which is brought here.

28. If however the Authority does not determine that the degree of impairment, if assessed in accordance with the Statute, would be 30 percentum or more, it may nevertheless if it is satisfied that the injury is a serious injury, issue a certificate to that effect consenting to the bringing of proceedings; and the worker is then in a position to bring proceedings of the kind presently before the court: s.135A (4).

31. Failing the issue of a certificate under sub-s.(4) and failing a determination that the degree of impairment is 30 percentum or more, a proceeding can only be brought with the leave of the court.

34. The certificate refers to sub-s.(19) of s.135A. That sub-section is a definition provision defining among other expressions the expression: "Determination Date." It does not define the expression: "Impairment Determination", although the certificate of 31 March 1999 states (as I have indicated) that the authorised insurer has made the "impairment determination" referred to in sub-s.(19).

37. At all events if sub-paragraph (a) of the certificate is to be read at face value it would seem that the authorised insurer was attempting to certify that it was satisfied that the injury suffered by the plaintiff is a serious injury despite the fact that it is not an injury from which the plaintiff suffered a degree of impairment of 30 percentum or more.

40. If the certificate presently before me is one that is properly taken to be issued pursuant to sub-s.(4) of s.135A, that is a certificate consenting to the bringing of proceedings where there has not been a determination that the degree of impairment is 30 per cent or more, then the reference in the certificate to an incident which occurred on 1 September 1993 may assume significance.

43. Mr Adams for the defendant submits that the certificate restricts the plaintiff to reliance upon an incident which in the statement of claim is said to have occurred in the month of September 1993. It appears that in fact the plaintiff will call evidence to the effect that the injury was suffered on 19 September of that year.

46. It was submitted by Mr Tobin on behalf of the plaintiff that the certificate of 31 March 1999 does not comply with sub-s.(3) of s.135A. It does not purport to be a determination of the question whether the degree of impairment of the plaintiff, if assessed in accordance with the legislation, is 30 per cent or more.

49. Such a determination, Mr Tobin submits, must by the provisions of sub-s.(2B) of the Act be made by the Authority or self-insurer.

52. Mr Adams submits that the insurer has made the determination in question but that such determination, although not expressly referred to in the certificate, must be taken to be impliedly referred to in that document.

55. Mr Adams' submission is that a determination has been made pursuant to sub-s.(2B). That determination, one must imply, is that the degree of impairment of the plaintiff is less than 30 per cent; and one must further imply that the authorised insurer has then gone on to assess the injury as serious nevertheless and issue a certificate pursuant to sub-s.4 accordingly.

58. The certificate is most certainly open to criticism. Although it is headed with the name of the plaintiff, the first name referred to in the text is that of a person with no connection with these proceedings whatsoever, and an indeterminate connection with the certificate. It may be that the certificate was prepared, not in respect of the plaintiff, but in respect of Shiralee Bailey. If that is the case, then there has been no compliance with sub-s.(2B) of the Act, and in those circumstances, the authorised insurer is deemed to have accepted the injury as being a serious injury.

61. Alternatively, the person who drew the certificate may have intended it to refer to the plaintiff in which case, as Mr Tobin submits, there has been nevertheless a failure to comply with sub-s.(2B) because the certificate does not in terms set out the determination that the insurer is required to make pursuant to that sub-section.

64. A further criticism of the certificate is that the date there specified as the date of the accident, 1 September 1993, is not the date set out in the affidavit accompanying the application. This, by paragraph 11, refers to a first injury to the plaintiff's back having been experienced on or about 19 September 1993.

67. I must, it seems to me, read the certificate as favourably as I reasonably can to the plaintiff. Its defects ought not to be an impediment to what otherwise would be her right to bring these proceedings. I say that because its defects originate clearly with the authorised insurer, and the responsibility for them to the extent that it affects these proceedings must therefore be borne by the defendant.

70. It would be quite unjust, it seems to me, for the plaintiff to suffer adversely as a consequence of carelessness in the preparation of a certificate created pursuant to the Act, where that carelessness is clearly the responsibility of persons within the defendant's camp.

73. In my opinion, the certificate does not comply with sub-s.(2B) of the Act. In my further opinion, the consequence is that the plaintiff is deemed to have received a serious injury. In those circumstances, is entitled to bring these proceedings without reference to the matters set out in sub-paragraph (c) of the certificate. Alternatively, a determination has been made and is impliedly to be found in the certificate - that determination being that the degree of impairment is less than 30 per cent. If that be the position, however, the Authority has given consent to the bringing of proceedings; but it has done so in relation to an accident which is on any view incorrectly described in the certificate.

76. The application having clearly set out incidents which occurred not only in September 1993 but also in late October or November of that year, there is nothing in the material upon which the application was made to suggest that it was made in respect of an accident which occurred on 1 September 1993.

79. Accordingly, if the certificate is one that should properly be read as having been issued under sub-s.(4) of s.135A the plaintiff should not, in my opinion, be restricted to an incident which happened in September 1993, still less to one which happened on 1 September 1993 an incident which, on no view of the plaintiff's case, is relevant to it.

82. For those reasons it seems to me that the plaintiff should not be restricted in alleging through evidence that the incidents upon which she relies occurred in the months of September 1993 and November 1993.