Ognjenovic v Melbourne Croatia Soccer Club Inc

(iii) The plaintiff pay the defendant's costs of this application;

(iv) Such further or other order as the Court deems appropriate.

2 The plaintiff served an Amended Writ dated 4 September 2014 pursuant to an Order of Judge O'Neill made on 25 August 2014. Relevantly, the amended paragraph 9 of the Statement of Claim stated:

"9. The Plaintiff suffers a 'significant injury' pursuant to section 28LF of the Wrongs Act 1958.

Particulars of Special Damage

Full particulars of medical hospital and like expenses will be provided prior to the trial of the action herein.

Particulars of Loss of Earnings and Loss of Earning Capacity

The Plaintiff makes a claim for loss of earnings and loss of earning capacity. Full particulars of loss of earnings and loss of earning capacity will be provided prior to the trial of the action herein."

3 The Amended Statement of Claim was served in September 2014. The Summons seeking to strike out this amendment was issued on 29 March 2016. The matter has been set down for trial on 6 June 2017. There was no explanation proffered by the defendant to explain the delay between September 2014 and 29 March 2017 to bring an application such as this one.

11 May 2012 - Plaintiff is injured to her right knee.

24 January 2014 - Medical Panel certifies the right knee injury is not a "significant injury".

2 July 2014 - Plaintiff has arthroscopic surgery to right knee by Mr Russell Miller, orthopaedic surgeon.

4 September 2014 - Plaintiff amends her Statement of Claim.

21 October 2015 - Plaintiff has arthroscopic surgery to right knee by Mr Russell Miller.

18 April 2016 - Plaintiff has a total right knee replacement.

16 December 2016 - Mr Rodney Simm, orthopaedic surgeon, certifies the plaintiff has a 30 per cent whole person impairment which is a "significant injury".

30 January 2017 - The 'Simm Certificate of Assessment' is served on defendant's solicitors.

29 March 2017 - Summons issued to strike out plaintiff's claim relating to "significant injury".

24 April 2017 - Hearing of Summons at County Court.

4 The defendant submits the Court has the power to strike out any part of a pleading that is scandalous, vexatious or frivolous. Section 63 of the Civil Procedure Act 2010 gives the Court power to give summary judgment if a claim has no real prospect of success.

5 In this application, the defendant does not seek to have the plaintiff's claim brought to an end. Rather, the defendant seeks to bring to a conclusion the plaintiff's claim for non-economic loss damages on the basis of the statutory defence based on the Medical Panel Certificate dated 24 January 2014.

6 Section 64 of the Civil Procedure Act 2010 provides a court may order a matter proceed to trial if there is no real prospect of success when it would not be in the interests of justice to dispose of the matter summarily or when the dispute requires the full hearing of the merits of the issues in dispute.

Is the Plaintiff able to rely on a second certificate of assessment?

7 The defendant's submission in this case is that the Medical Panel's decision dated 24 January 2014 is binding and conclusive, that the plaintiff does not have a significant injury. The plaintiff did not seek judicial review of the determination of the Medical Panel made on 24 January 2014.

8 The plaintiff's injury is to her right knee. The threshold level for a significant injury is an impairment of more than 5 per cent as assessed by an approved medical practitioner in accordance with AMA Guides (Section 28LH of the Wrongs Act). In this case, Mr Rodney Simm, orthopaedic surgeon, assessed the plaintiff's whole person impairment at 30 per cent on 16 December 2016. Mr Simm noted the plaintiff had potential to improve but stated that even with a good result for a total knee replacement, the whole person impairment is 15 per cent, i.e. which is above the threshold of 5 per cent WPI.

9 The critical issue in this case is that the AMA Guides and the Medical Panel determination apply only to permanent impairments. A Medical Panel must therefore only make a determination after a consideration of the existence of the impairment, the permanence of the impairment and the stability of the impairment.[1]

10 In the event a Medical Panel is not satisfied about the permanence or stability of an impairment, then it must defer its determination (Section 28LZG(6)).

11 In this case, the Medical Panel made its determination but the plaintiff had surgery to her right knee within six months of that determination.

12 The defendant relies on s28LZI(1) to submit that no appeal on the merits can be made to a court from an assessment or determination of a Medical Panel. Support for this submission is found in the case of Colquhoun v Capitol Radiology Pty Ltd & Others.[2]

13 Nevertheless, s28LZI(2) reads:

"(2) Nothing in subsection (1) affects any right of a court to grant any other relief or remedy in relation to an assessment or determination of a Medical Panel under this Division."

14 One such relief or remedy may be to refer this matter back to the Medical Panel for further consideration. Neither the defendant nor the plaintiff made such a submission in the course of the hearing before me but such a course could be open to a court under s28LZI(2). The Parliament clearly had in mind a relief mechanism for courts to exercise in a situation (rare as it might be) where the interests of justice require a balance between the removal of an appeal on the merits as set out in ss(1) and ensuring genuinely injured people retain a right to be properly compensated according to law.

15 Further to this matter is the issue of permanent impairment. So much is set out in s28LB:

16 The AMA Guides define "permanent impairment" in the following terms:

"Permanent Impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment."

"A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

18 In this case, the first of three operations to the plaintiff's right knee took place within six months of the Medical Panel's determination. A further two operations took place within two years of the Medical Panel determination. The final operation was a total knee replacement. The injury is alleged to have occurred on 11 May 2012. In 2003, the Parliament altered the time allowed for bringing proceedings to three years.

19 The Second Reading Speech of 10 June 2003 made by Mr John Lenders contained the following statement:

"Assessment of whole-person impairment using the AMA Guides requires that the injuries to be assessed are stable and are unlikely to change in future months in spite of treatment. This is important both to claimants and defendants, because if the claimant's injuries have not stabilised the claimant could be undercompensated if the injuries subsequently deteriorate, or overcompensated if the injuries subsequently improve."[3]

20 As I have previously stated, the plaintiff's position or condition did change within months, resulting in a series of operations and a whole person impairment of 30 per cent as assessed by Mr Rodney Simm.

21 I find it is not in the interests of justice to summarily dismiss the plaintiff's claim for non-economic loss damages (Section 64CPA).

23 I order the defendant pay the plaintiff's costs on the standard basis, to be assessed by the Costs Court in default of agreement.

[1] See Deitrich v Pulse Pharmacy Northcote Pty Ltd [2014] VSC 307 at paragraphs [37]-[40]

[2] (2013) 39 VR 296

[3] Hansard, Second Reading Speech, 10 June 2003, page 2078