Plaintiff v Defendant

2 As a result of the robbery, the plaintiff alleges she sustained severe psychiatric injuries consisting of a post-traumatic stress disorder and severe depression. In this proceeding, the plaintiff claims damages for these injuries.

3 This proceeding is brought pursuant to the provisions of s 134AB of the Accident Compensation Act 1985. During the course of cross-examination of the plaintiff and her first medical witness (Dr Kruse),[1] Senior Counsel for the defendant put to the plaintiff that the defendant would be calling psychiatrists who would give evidence that the plaintiff's psychiatric injury (if any) was (and has been for many years) mild.[2] The present proceeding is brought by the plaintiff pursuant to leave having been given in the County Court by Judge Dove on 15 February 2006 pursuant to s 134AB(16)(b). That section provides:

"If the assessment under s 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(a) ...; or

(b) a Court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the authority under subsection (20), after that period, gives leave to bring the proceedings."

4 The plaintiff obtained leave to bring this proceeding because she established that she had sustained a "serious injury" within the meaning of s 134AB. The relevant part of the definition of serious injury which was established by the plaintiff was paragraph (c), namely that she had a "permanent severe mental or permanent severe behavioural disturbance or disorder".

5 The issue in this ruling is whether or not the defendant can seek to re-agitate the question of whether the plaintiff has a permanent severe mental or permanent severe behavioural disturbance or disorder. Section 134AB(19)(c) provides:

"For the purposes of sub-s (16)(b) -

(c) no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue estoppel."

6 In Dwyer v Calco Timbers Pty Ltd,[3] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said at p 130 [11]:

"If leave had been given, the statutory barrier to the bringing of proceedings by the appellant for the recovery of damages would have been removed. In that action for damages the appellant would have had in his favour an issue estoppel arising from the finding that his injury was a 'serious injury', but no other estoppel. This would have followed from paragraph (c) of sub-s (19). The provision respecting the issue estoppel both reflects the importance (by reason of its finality) of the determination in any leave application of the issue of 'serious injury' and highlights the requirement that the reasons of the County Court be as extensive and complete as those at a trial of the action."[4]

7 On a plain reading of the High Court's judgment, the plaintiff in this case has in her favour an issue estoppel arising from the finding that her injury was a "serious injury". In answer to this proposition, Senior Counsel for the defendant contended that the issue of serious injury and its definition was merely a gateway for the bringing of common law proceedings. However, this submission simply ignores the High Court's judgment.

8 The defendant's next response was to rely upon s 134AB(23)(b). That section provides:

"In the trial of a proceeding brought under this section, a jury must not be informed -

(b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury."

9 However, this section is of no assistance to the defendant. First, the defendant's submissions contain the implicit assertion that the High Court overlooked, or wrongly disregarded, s 134AB(23)(b). There is no basis for this contention. Secondly, if one was to accept the defendant's submissions, then an issue estoppel would exist in a trial conducted by a judge alone but not in a jury trial - s 134AB(23)(b) only applying to jury trials. There is no basis for such a distinction. It cannot have been the intention of the Parliament to have injured workers treated so differently - dependent upon whether their cases were heard by juries on the one hand or judges sitting alone on the other hand.

10 Section 134AB(23) sets out four matters that juries must not be informed about. They are matters that are irrelevant to the determinations of juries. So far as the prohibition on telling juries of a serious injury finding is concerned, such a matter is irrelevant if the proceeding is conducted on the basis that there is an estoppel in favour of the plaintiff as identified by the High Court in Dwyer. Thus, the work of s 134AB(23) is to ensure that irrelevant matters, and matters about which there is no issue, are not put before the jury.

11 During the course of argument, the defendant referred to the Second Reading speech in relation to s 134AB(23). In the written submissions of the defendant[5], the defendant said:

"10 In the second reading speech on 13 April 2000, the Minister said:

'The Bill further provides that at the trial of an action before a jury, the fact that a worker has been granted a serious injury certificate or deemed to have a serious injury and the existence of the monetary threshold and caps shall not be made known to the jury. The government considers such a provision to be consistent with the serious injury threshold not being an influence in a common law trial'.

11 The role of the tribunal of fact in a damages trial would be impermissibly constrained and made unworkable if the only basis upon which the jury was permitted to assess damages was upon the assumption that the injury was Humphries serious."[6]

12 The defendant submitted that I should not follow Dwyer. While it may be accepted that paragraph [11] of the High Court's judgment is obiter, it is powerful obiter, directly on point, from five judges and delivered only 13 months ago. In the circumstances, and for the reasons already given, I propose to follow it. As the High Court said, subsection 19(c) reflects the importance "by reason of its finality" of the determination in any leave application of the issue of "serious injury". Further, to the extent that anything said in earlier Court of Appeal decisions on a different section (section 135A) might be said to be in conflict with Dwyer[7], I prefer the specific consideration of s 134AB(19)(c) in Dwyer.

13 It follows that there is an estoppel in the plaintiff's favour. The defendant is estopped from disputing or questioning the finding that, at least as at July 2005[8] the plaintiff had a permanent severe mental or permanent severe behavioural disturbance or disorder (see Carl Zeiss Stiftung v Rayner & Keeler Limited (No. 2) [1967] 1 AC 853 at pp 933-935 and 963-965 and Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at 373).

14 The real issue in this case is the extent of the estoppel. As the High Court said in Dwyer, the only estoppel in favour of the plaintiff is that the plaintiff's injury was a "serious injury". In the terms of s 134AB and Judge Dove's decision, "serious injury" in this case means "permanent severe mental or permanent severe behavioural disturbance or disorder". However, that is not the end of the matter. Further content is provided to these words by s 134AB(38) and the decisions of the Court of Appeal which have considered the four sub-paragraphs of the definition of "serious injury" in s 134AB(37). Specifically, the word "permanent" in the definition of "serious injury" in s 134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair - or at least not to any significant extent.[9] Further, the word "permanent" is used in the sense of "likely to last for the foreseeable future".[10]

15 Further elucidation as to the extent of the estoppel can be found in paragraphs (b) and (d) of s 134AB(38). Those paragraphs provide:

"For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)-

...

(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-

(i) pain and suffering; or

(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

...

(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

..."

16 Giving application to paragraphs (b) and (d) of s 134AB(38) and applying the reasoning in AMP Workers Compensation Services Limited v Chalkley[11], the estoppel would be that as at July 2005 the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being "likely to last for the foreseeable future".

17 Paragraphs (e), (f) and (g) of s 134AB(38) provide:

"For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) -

...

(e) where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that -

(i) at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and

(ii) the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;

(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

... ."

18 While a first reading of paragraphs (e) to (g) of s 134AB(38) might suggest that they have some role in further defining the extent of the estoppel, these paragraphs concern the assessment of loss of earning capacity by reference to terms defined in the Accident Compensation Act and terms which have a specific relevance in workers compensation matters - rather than the assessment of common law damages (see for example the reference to "suitable employment" and its definition in s 5 of the Act). In my view paragraphs (e) to (g) do not give content to the estoppel over and above that to which I have already referred. It follows, for the reasons already given, that the estoppel on the issue of "serious injury" is as I have previously explained it. That is, the defendant is estopped from denying that as at July 2005 the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being likely to last for the foreseeable future.

19 During the course of argument, the defendant referred me to Petkovski v Galletti[12], and in particular the statement of Brooking J (in relation to s 93 of the Transport Accident Act 1986) that "the question of 'serious injury' as defined will not arise on the trial of the action". While that may be accepted, it does not provide an answer to the fact that the defendant is estopped from contending the contrary of the serious injury point which was in issue before Judge Dove and "solemnly found against it"[13].

20 Finally, it was said by the defendant that if I ruled there was an estoppel "it would be impossible for the tribunal of fact to deal with evidence that, for example, showed beyond doubt that the plaintiff now presented, or had always presented, as very mildly affected by the injury".[14] However, that is merely the lament of any party held to be precluded by an issue estoppel from relitigating a matter. Further, AMP Workers Compensation Services Limited v Chalkley[15] (to which I have already referred) shows that evidence may be given as to how the plaintiff "now presents" provided that in doing so no attempt is made to relitigate the matter already determined against the defendant. It is the concept of "had always presented" in the defendant's submissions that is the one that the defendant cannot now seek to relitigate as if no court has ever considered the matter.

21 Having concluded the estoppel issue against the defendant, I will now hear the parties on the question of whether this proceeding can continue in front of the jury or whether it should now proceed as a cause in the light of the way in which the proceeding has been conducted to date and having regard to the prohibition in s 134AB(23) from informing the jury of the basis upon which the estoppel arises.

[2] See for example, the cross-examination of Dr Kruse at T178.27.

[3] [2008] HCA 13; (2008) 234 CLR 124.

[4] See also Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [180].

[6] A reference to the Full Court's decision in Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129.

[7] See for example Brambles Limited v Wail [2002] VSCA 150 at paragraph [18]. While Brambles v Wail is reported in [2002] VSCA 150; (2002) 5 VR 169, paragraph [18] is not reported. Note further that Brambles v Wail was reversed in part in Andar Transport v Brambles Limited [2004] HCA 28; (2004) 217 CLR 424.

[8] The time the application before Judge Dove was heard (see s 134AB(38)(j) and AMP Workers Compensation Services v Chalkley [1998] VSC 29 at [37] and [38]).

[9] See Barwon Spinners v Podolak [2005] VSCA 33; (2005) 14 VR 622 at 633 [19].

[11] [1998] VSC 29, and in particular at paragraphs [37] and [38]. As was said in that case:

"A finding that a person is totally and permanently incapacitated at a particular time does not mean that that person will in fact be totally incapacitated in the future. A number of factors subsequent to such a finding such as an 'unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even the improvement in the labour market' or the opportunity to learn fresh skills from participating in an approved 'occupational rehabilitation service' may bring an end to the incapacity or reduce it".

"That finding [of total and permanent incapacity on 30 November 1994] could not prevent or estop the appellant, in the subsequent proceedings between Chalkley and it, putting in issue the matter of fact that at the time relevant to those subsequent proceedings and being subsequent to 30 November 1994 the nature and extent of any incapacity that Chalkley had for work where such matter was relevant to a fact or matter in issue in the later proceedings".

[12] [1994] VicRp 32; [1994] 1 VR 436.

[13] See Kuligowkski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at 386 [61].

[14] See paragraph 11 of the defendant's written submissions dated 1 June 2009.

[15] [1998] VSC 29.