Plaintiff v First and Second Defendants

Plaintiff v First and Second Defendants - [2011] VSC 51 - VSC 2011 case summary — Zoe

[84]

32 However, at the hearing counsel for the plaintiff resiled from what he called an "aspect" of the argument contained in the plaintiff's outline of submissions in reply.[3] The outline involved an error, counsel submitted, insofar as it equated the identification of a "proper respondent" with the identification of a correct defendant in the underlying dispute or court proceeding. Rather, counsel submitted, the meaning of "proper respondent" was "slightly protean",[4] in that the way in which a "proper respondent" is to be identified will differ depending on "the circumstances in which the expression 'proper respondent' appears in the Act".[5] Counsel submitted that "proper respondent" means or refers to a respondent who is satisfied that the claimant has satisfied the requirements of the Act in terms of providing whatever information the claimant is meant to provide at the relevant stage[6]. Hence a respondent might at a particular time be a "proper respondent" within the meaning or for the purposes of one section within Part VBA but not a "proper respondent" within the meaning or for the purposes of another, according to counsel.[7] Counsel seemed to submit, further, that a respondent who or which is obliged under s 28LWB(3) to state that he, she or it is a proper respondent is indeed a proper respondent, also.[8] It seems to me that in advancing these submissions and in resiling from the proposition that a "proper respondent" is to be identified by reference to the underlying dispute or court proceeding, counsel was not merely departing from an "aspect" of the plaintiff's outline of submissions in reply but was departing fundamentally from that outline. Counsel was also departing from the plaintiff's original outline which included, in the portion quoted above, a reference to the need for an unequivocal acceptance by the respondent that it was a "proper party". Further, counsel was of course departing fundamentally from the understanding of "proper respondent" implicit in the abovementioned schedule of information which the plaintiff had served on the Club in December 2009, in which she asserted that the Club was the proper respondent because it had the care, control and management of the premises at which she was allegedly injured.

[91]

38 But, in my opinion, subject to one minor possibility referred to in paragraph 40 below, the correspondence fully answered the description in paragraph (b) of s 28LW(2). As mentioned above, it consisted of the letter to the plaintiff's solicitors dated 19 February 2010 and a copy of the referral to the medical panel of the same date. The letter expressly referred to the correspondence from the plaintiff's solicitors of 19 December 2009 upon which she herself now relies as having given rise to the occasion for the Club to respond under s 28LW(2). Hence it must have been obvious to the plaintiff's solicitors that the Club, by its solicitors, was at least attempting to do that very thing. Moreover, in the immediately following paragraph of the letter, the Club's solicitors proceeded to refer expressly to s 28LW(2)(b). Strictly speaking, the Club's solicitors were inaccurate in saying, as they did, that the referral had occurred "[p]ursuant to s 28LW(2)(b)". Rather, all referrals within Part VBA occur pursuant to s 28LWE. But this only means that the reference to s 28LW(2)(b) in the letter from the Club's solicitors should be taken to have conveyed some piece of information other than the fact that the Club had referred a medical question in relation to the assessment to a medical panel. The only remaining piece of information within the purview of s 28LW(2)(b) that the solicitors could have been intending to convey, consistently with the indication that the Club was acting pursuant to s 28LW(2)(b), was that the Club accepted that it was "a proper respondent to the claim". In other words, by its solicitors' letter of 19 February 2010, the club apparently accepted unequivocally that it was a proper respondent to the claim. In my view, subject to the minor possibility referred to in paragraph 40 below, the Club thereby stated (within the meaning of s 28LW(2)(b)) that it was a proper respondent to the claim, or at least stated the "precise equivalent" thereof (to use the language of the abovementioned concession made by the plaintiff's counsel). It would seem that the plaintiff's solicitors themselves detected no deficiency in the Club's solicitors' response, at least until after the decision of the medical panel became known. In my view, whatever the true meaning of "proper respondent to the claim" may be, subject only to the minor possibility referred to in paragraph 40 below, the Club unmistakably signified to the plaintiff, in writing, that it was adopting in full the option set out in s 28LW(2)(b).

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Legislation Cited (24)

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