Plaintiffs v Defendants

1 The plaintiffs seek orders to compel the first and second defendants to convene a Medical Panel to consider medical questions in accordance with s 63 of the Accident Compensation Act 1985 (Vic). The plaintiffs contend that the first and second defendants are obliged to convene a Medical Panel in respect of claims made against the plaintiffs by Mrs Todd, the third defendant. Mrs Todd resists the orders being made contending that the plaintiffs' entitlement for a medical question to be referred to the Panel expired around 15 October 2011.

2 The background to the proceeding is a fatal injury which occurred to Mrs Todd's late husband on 2 February 2007. Mr Todd had been employed by the first plaintiff ("Redline") as a truck driver. On that day he attempted to load an elevated work platform onto a semi-trailer super tilt tray owned by the second plaintiff ("Coates"). The load traversed back down the tilt tray injuring Mr Todd by crushing his neck causing asphyxia and death. Mrs Todd has made a claim for damages for non-economic loss from the consequential injury to her of shock, anxiety and depression.

3 Mrs Todd's claim for the recovery of damages for non-economic loss is subject to the requirements of Part VBA of the Wrongs Act 1958 (Vic).[1] To recover Mrs Todd must have suffered "significant injury" and the Medical Panel may be asked to determine whether the injury satisfied the threshold level.[2] A psychiatric injury to a person is a significant injury if :[3]

(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.

Section 28LWE entitled the plaintiffs to refer a medical question in relation to the assessment to a Medical Panel for determination within 60 days after receiving the certificate and the information required under s 28LT. A certificate of assessment on behalf of Mrs Todd was served upon the plaintiffs on 16 August 2011 and the plaintiffs are deemed to have accepted the assessment, and Mrs Todd is deemed to have reached the threshold level, if a question was not referred by the plaintiffs to a Medical Panel within 60 days of receipt of the certificate and the required information as contemplated by s 28LWE. Mrs Todd contends that the 60 day time period for the plaintiffs to require the referral of a medical question began on 16 August 2011 and ended around 15 October 2011. The plaintiffs contend that the requirements of s 28LWE were not fully satisfied until 14 December 2011 and have requested the referral of a medical question to a Medical Panel.

4 Mrs Todd contended that there was no compulsion to convene a Medical Panel when a request was made for referral of a medical question. Part VBA of the Wrongs Act 1958 (Vic) is not expressed as imposing a mandatory obligation for a Medical Panel to be convened when an effective request is made, but a mandatory obligation to convene a Panel may be seen from the scheme of the provisions. The legislation provides a mechanism for the referral of medical questions in relation to certificates of assessment to a Medical Panel for determination. Section 63(1) of the Accident Compensation Act 1985 (Vic) provides that Medical Panels "must be constituted as necessary" for the purposes of that Act and of Part VBA of the Wrongs Act 1958 (Vic). The provisions do not contemplate any discretion not to convene a Medical Panel. Indeed, the only basis upon which the Medical Panel may refuse to proceed to consider a medical question is, as provided by s 28LZA(3) of the Wrongs Act 1958 (Vic), where the Panel was not provided with the documents that are required under s 28LZA(1) or which were requested under s 28LZA(2). The contemplation of these provisions is that a referral must be entertained, and a Panel must be convened, if an effective request for referral is made. The critical question in this case is, therefore, whether the time has elapsed for the plaintiffs to make their request for referral of a question.

5 The plaintiffs' entitlement to request the referral depends upon s 28LWE(1), which provides:

(1) The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part -

(a) within 60 days after receiving the certificate and the required information under section 28LT; or

(b) within 60 days after receiving the information provided under section 28LWA; or

(c) within 14 days after receiving the notice under section 28LWB.

The plaintiffs were sent a certificate of assessment with a report from Professor Lorraine Dennerstein by letter, dated 11 August 2011, from Mrs Todd's solicitors which was received by the plaintiffs' solicitors on 16 August 2011. Section 28LWE required service upon the plaintiffs of both a certificate of assessment and the "required information under section 28LT".[4] The letter of 11 August 2011 supplied the certificate of assessment but not the required information under s 28LT. The plaintiffs contended, therefore, that the time for them to refer a medical question within 60 days did not start with receipt of the 11 August 2011 letter on 16 August 2011. Counsel for Mrs Todd contended that the information required by s 28LWE(1)(a) had been received by the plaintiffs by 16 August 2011 either with the letter dated 11 August 2011 or by other means and that the 60 day time period ended on 15 October 2011.

6 The relevant information required by s 28LWE to trigger the commencement of the 60 day period (in addition to the certificate of assessment) is, in this case, that described in s 28LWE(1)(a) as "the required information under section 28LT". Section 28LT does not identify any particular information as "required information" but does provide that the certificate of assessment must be accompanied by what is described in s 28LT as "prescribed information". Section 28LT provides:

(1) A claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.

(2) The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.

(3) The information prescribed for the purposes of subsection (2) may include information relating to -

(a) the identity of the claimant;

(b) the nature of the claim;

(c) the injury;

(d) the incident out of which the alleged injury arose;

(e) any medical practitioner who has treated the injury.

Counsel for Mrs Todd contended, however, that the "required information" referred to in s 28LWE(1) was not the same as the "prescribed information" referred to in s 28LT. Regulations made under s 28LZP of the Wrongs Act 1958 (Vic) prescribe information for the purposes of ss 28LT(2) and 28LZA(1)(a)(ii):[5] the former in reg 6 and the latter in reg 7. Counsel for Mrs Todd maintained that the information to be supplied by reference to the description in s 28LWE(1)(a) as "the required information under section 28LT " is that information identified in reg 7 rather than that in reg 6. Fundamental to the submission is the description of the information in s 28LWE(1)(a) as "the required information" as distinct from the description "the prescribed information" found in s 28LT(2) and in reg 6. Whatever may have been the reason for the use of different language in the two sections, I am unable to accept the construction urged for Mrs Todd. The information described in s 28LWE(1)(a) is "the required information under section 28LT". It is, therefore, to the information required by s 28LT that one must look to determine what information s 28LWE(1)(a) requires to be provided. What s 28LT requires is provision of the information identified in reg 6 (and not that in reg 7) as "the prescribed information". The factual inquiry thus called for is whether the information required by reg 6 (that is "the prescribed information") had been provided by Mrs Todd on or by 16 August 2011.

7 It was contended for Mrs Todd that she had nevertheless provided all of the information which was required to comply with the obligations in s 28LT. The certificate of assessment required by s 28LT(1) was certainly provided by letter dated 11 August 2011 but Mrs Todd had not provided the prescribed information required by sub-regs (n) and (o) of reg 6, namely:

(n) details of any report of the incident on which the claimant intends to rely to make the claim, including the date of the report and the person to whom the report was made;

(o) name, professional qualifications, address and telephone number of any medical practitioner who has treated the injury of the claimant.[6]

The plaintiffs have waived the requirement for compliance with sub-reg (n) to enable the Medical Panel to convene (and Mrs Todd does not contend that the plaintiffs are not able to waive compliance if compliance is necessary). The information required by sub-reg (o) of reg 6, however, was only supplied by letter dated 12 December 2011 from Mrs Todd's solicitors and received by the plaintiffs' solicitors on 14 December 2011. On 20 December 2011 Redline sought to refer to the Medical Panel the question of whether the degree of impairment to Mrs Todd resulting from the injury satisfied the threshold level. The same question was sought by Coates to be referred to the Medical Panel on 10 February 2012. Each request was within 60 days of 12 December 2011 but not within 60 days of 16 August 2011.

8 It was contended for Mrs Todd that s 28LT(2) did not require strict compliance. In that regard it was submitted that although the section used the word "must", it was not used in this context as imposing a mandatory requirement. The word "must" is not always used to impose an imperative or mandatory obligation,[7] however, in this context, the word "must" imposed an imperative obligation upon the complainant. In Mikhman v Royal Victorian Aero Club[8] Kaye J said:

... [I]t is clear that the verb "must", which appears in s 28LZG(3)(a), is consistently used, in Divisions 4 and 5 of Part VBA of the Act, in its usual mandatory sense. That consideration, of itself, is a strong reason for according to it the same, consistent, meaning in s 28LZG(3)(a) of the Act_._[9]

The word "must" in s 28LT(2) is used to impose an imperative obligation upon a complainant so that the complaint can be dealt with by the respondent and by the Medical Panel if called upon to do so. The provision of information is essential to the proper conduct of complaints and is not merely directory or optional for the person upon whom the obligation is expressed to fall. That is not to say that a complainant cannot waive strict compliance or that the Panel will lack jurisdiction to consider a question referred to it if there has not been strict compliance by the person upon whom the obligation is imposed. In Project Blue Sky Inc v Australian Broadcasting Authority[10] it was said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.[11]

The mandatory obligation in s 28LT is designed to impose an obligation upon a person who has the necessary information to provide that information to the person who is called upon to respond to a complaint and, if referred to a Medical Panel, for the Medical Panel to be able to deal with it efficiently and effectively. The consequences of noncompliance need not be to deny jurisdiction to the Panel, but will be sufficient to prevent a party relying upon the provision where it is that party who has not complied with its terms.

9 It was also contended for Mrs Todd that the information that was required to be provided had been provided because the requirement that the certificate of assessment "be accompanied" by the required information was effectively complied with by the provision of the information by other means. The submission was that something may relevantly be "accompanied" (within the meaning of the word in s 28LT(2)) though it was not physically conveyed with the certificate. On 1 February 2010 Mrs Todd had issued proceedings in the County Court claiming general damages arising from her husband's death. Around 31 January 2011 Mrs Todd had served those proceedings upon the plaintiffs and on or about 24 March 2011 Mrs Todd had served a statement of claim upon the plaintiffs in which she alleged that both had breached their duty of care towards her in the circumstances under which they required her husband to work. Counsel for Mrs Todd conceded that the information provided through the County Court proceedings did not provide the information required by sub-regs (n) and (o) of reg 6 but contended that nonetheless there was substantial compliance because the information would have been known to the plaintiffs through what had been lodged by Mrs Todd with the Victorian WorkCover Authority or from information available to the plaintiffs by virtue of them having paid for Mrs Todd's medical expenses.

10 The terms of s 28LT(2) should be construed to give them a reasonable and practical operation.[12] It may be, therefore, that the contents of information in documents found elsewhere may be seen, in an appropriate case, to have "accompanied" the certificate of assessment where they have been referred to, for example, in a covering letter. That, however, was not this case. The obligation in s 28LT(2) that the information accompany the certificate is designed for a claimant to identify with precision the information needed for another to deal with a claim. The information required by the section is that identified in the section and the regulations made under the section. Compliance with that should not be left to inference or assumption. It is for the person upon whom the obligation falls to provide the information and to do so explicitly. It will usually be necessary for the information to be physically provided with the certificate in order to satisfy the requirement that the information accompany the certificate.

11 In this case the certificate was not accompanied by the information required under s 28LT to be provided, and the plaintiffs have consistently maintained that to be the case and have consistently sought the information. The letter of 11 August 2011 containing the certificate of assessment (and received by the plaintiffs on 16 August 2011) was the subject of responding correspondence from both plaintiffs. On 31 August 2011 the solicitors for Redline wrote to Ms Alice O'Connell, solicitor at Holding Redlich for Mrs Todd, asking for the information. That letter said:

1. We refer to your correspondence dated 11 August 2011 serving the report of the Professor Lorraine Dennerstein dated 15 December 2009 and the accompanying Certificate of Assessment.
2. We note that you have not served the Prescribed Information as required under the Wrongs Act 1958 (Vic) and the relevant regulations made there under.
3. Accordingly, the 60 day time period for referral of your client to the Medical Panel under Part VBA of the Wrongs Act has not started to run.
4. We look forward to receiving the Prescribed Information shortly.

That letter was not met with any attempt to provide the information sought nor with an assertion that the information had been provided. On 11 October 2011 the solicitor for Coates wrote to the solicitors for Mrs Todd in similar terms:

We refer to your letters dated 10 August 2011 (regarding Chloe Todd) and 11 August 2011 (regarding Robyn Todd), each serving Certificates of Assessment from Professor Lorraine Dennerstein.

We confirm not having been served with the requisite prescribed information, as required by s 28LT of the Wrongs Act 1958 (Vic). Accordingly, we note that the 60 day time frame to refer your clients to the medical panel has not started to run.

Please serve the prescribed information as soon as possible.

That letter similarly received no response to the effect that the information required would not be provided, or that it had been provided or that it need not be provided.

12 It follows that the 60 day time period did not commence on 16 August 2011. The information required by sub-reg 6(o) was provided by letter on 12 December 2011 (received on 14 December 2011) and, the plaintiffs (having waived any requirement for the information required by sub-reg 6(n)), were entitled within 60 days from 14 December 2011 to refer their medical questions to the Medical Panel and to have them determined by the Panel.

13 It is, therefore, not strictly necessary for me to consider (but it is desirable that I deal briefly with) the plaintiffs' alternative contention that Mrs Todd is estopped from asserting that the service of the County Court statement of claim and report of Professor Lorraine Dennerstein constitute provision of the prescribed information in satisfaction of the requirement of s 28LT. The basis of the alternative submission was that Mrs Todd's solicitor induced the plaintiffs to act upon the assumption that the 60 day time period for referral to the Medical Panel had not commenced because they had not been served with the information required by s 28LWE.

14 On 11 August 2011 Mrs Todd's solicitors wrote to each of the plaintiffs enclosing Professor Dennerstein's report and the certificate of assessment. It was a short letter written by a senior associate, Ms Alice O'Connell, of Mrs Todd's solicitors and its subject matter was expressed to be the County Court proceedings. The letter said simply:

• Report of Professor Lorraine Dennerstein dated 15 December 2009 and accompanying Certificate of Assessment

There was no further reference in the letter to the Wrongs Act 1958 (Vic) generally, or to Part VBA in particular, although it can be assumed that the practitioners were sufficiently aware of those provisions. However, there was no reference in the letter to the 60 day period for the purpose of s 28LWE commencing or to a claim that the "required information under s 28LT" (as required by s 28LWE(1)(a)) was thereby fully provided or that it had otherwise been provided.

15 On 31 August 2011 Redline's solicitors wrote the letter to Ms O'Connell I have already quoted, noting their view that the information required had not yet been provided and that the 60 day time period for referral to the Medical Panel had not started to run. Their letter sought receipt of the information shortly. Ms O'Connell did not respond to that letter by asserting that the 60 day time period for referral had started to run, or that the prescribed information had been provided, or that the prescribed information need not be provided, or that the prescribed information would not thereafter be sent.

16 On 11 October 2011 the solicitors for Coates wrote the letter to Mrs Todd's solicitor which I have already quoted and which was to much the same effect as the letter from Redline's solicitors. This letter was similarly not met with any disavowal that the 60 day time period had not started to run, or that the information had not been provided, or that the information need not be provided or that the information would not be provided.

17 It is significant that each of the letters from the plaintiffs were sent within the 60 day period which Mrs Todd's lawyers now contend on her behalf had begun to run upon receipt on 16 August 2011 of their letter of 11 August 2011. That significance lies in the fact that the plaintiffs could have sought to refer a medical question to the Panel if the view maintained in this proceeding by Mrs Todd's solicitors had been raised explicitly and had caused the plaintiffs sufficient concern for them to refer a question within that time (if only as a protective measure). It is also significant in that context that Mrs Todd's solicitors were under the overarching obligations imposed upon them by the Civil Procedure Act 2010 (Vic). Those overarching obligations include a duty to cooperate in the conduct of civil proceedings,[13] a duty not to mislead or deceive,[14] a duty to use reasonable endeavours to resolve disputes,[15] a duty to narrow the issues in dispute,[16] a duty to minimise delay[17] and a duty to disclose the existence of documents.[18] It is inconsistent with the overarching obligations imposed upon practitioners not to have claimed promptly the right on behalf of Mrs Todd which her solicitors have subsequently asserted in this proceeding. It is inconsistent with the overarching obligations to assert the claim only after the time period was thought by her solicitors to have passed and only when the plaintiffs might not otherwise be able to rectify the situation.

18 The plaintiffs contended that this conduct was sufficient to estop Mrs Todd to resile from the assumption upon which the plaintiffs relied. In Grundt & Ors v The Great Boulder Proprietary Gold Mines Limited[19] Dixon J said:

The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations.[20]

In this case it may be said that the conduct of Mrs Todd's solicitors have caused the plaintiffs to adopt or accept an assumption which, if wrong in law, would result in the plaintiffs suffering a detriment. In Waltons Stores (Interstate) Ltd v Maher[21] Brennan J said:

Silence will support an equitable estoppel only if it would be inequitable thereafter to assert a legal relationship different from the one which, to the knowledge of the silent party, the other party assumed or expected: see Ramsden v Dyson; Svenson v Payne; Willmott v Barber. What would make it inequitable to depart from such an assumption or expectation? Knowledge that the assumption or expectation could be fulfilled only by a transfer of the property of the person who stays silent, or by a diminution of his rights or an increase in his obligations. A person who knows or intends that the other should conduct his affairs on such an assumption or expectation has two options: to warn the other that he denies the correctness of the assumption or expectation when he knows that the other may suffer detriment by so conducting his affairs should the assumption or expectation go unfulfilled, or to act so as to avoid any detriment which the other may suffer in reliance on the assumption or expectation. It is unconscionable to refrain from making the denial and then to leave the other to bear whatever detriment is occasioned by non-fulfilment of the assumption or expectation.[22]

In this case it would be unconscionable to permit Mrs Todd to rely upon the failure to have sought the referral of a medical question to a Medical Panel within 60 days of 16 August 2011. Her solicitors knew that the plaintiffs' solicitors had assumed that the information required by the provisions had not been provided by 16 August 2011. Her solicitors knew of that within the period of time when the plaintiffs were then still able to make a referral had they been put on notice of an alternative view and chose to protect themselves from the adverse consequences of that view if it had been made. It is conceivable that they might have taken the view that no step was necessary, but the opportunity to make a referral within the 60 days following 16 August 2011 was not something about which they had been put on notice or about which they had assumed a risk. The assumptions to the contrary which were made by the plaintiffs were more readily made in light of the additional assumptions that they were able to make, namely, that Mrs Todd's solicitors were acting in accordance with the overarching obligations imposed upon them by the Civil Procedure Act 2010 (Vic).

19 It was finally submitted for Mrs Todd that a writ of mandamus should not be issued because it was a discretionary remedy and that there was an alternative remedy available. The alternative remedy said to be available was that of obtaining declaratory orders from the County Court to the same effect as might be obtained by a writ of mandamus from this court. Counsel for Mrs Todd conceded that mandamus was not a remedy available in the County Court proceedings.

20 In my view the argument for Mrs Todd about an alternative remedy is misconceived. The remedy sought in this proceeding is to invoke the statutory remedy of referral of a question to a Medical Panel for its determination. The present case is unlike those where the relief sought in one court is the relief provided for by a specific statutory tribunal or other jurisdiction specifically created for that kind of proceeding. It is for the party resisting the exercise of the Court's discretion to discharge the onus of persuading the court to exercise the discretion against the applicant for relief.[23] The statutory right to have a matter referred to the Medical Panel is a factor pointing in favour of the grant of the relief sought in this case.[24] Here (if analogy is to be drawn) the "alternative remedy" is that provided by referral to the Medical Panel as against that provided by the proceedings instituted in the County Court. In any event, I would consider this to be an appropriate case in which to grant the remedy even if it were appropriate to regard the County Court proceeding as a relevant alternative remedy to the writ sought in this court.

21 Accordingly, I shall make the orders sought and will hear the parties on questions of costs.

[1] Wrongs Act 1958 (Vic) s 28LC(1).

[2] Wrongs Act 1958 (Vic) s 28LE.

[3] Wrongs Act 1958 (Vic) s 28LF(2).

[4] Wrongs Act 1958 (Vic) s 28LWE(1)(a).

[5] Wrongs (Part VBA Claims) Regulations 2005 (Vic) rr 6, 7.

[6] Wrongs (Part VBA Claims) Regulations 2005 (Vic) r 6.

[7] Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 446 (Tadgell JA); Booth v Ward [2007] VSC 364 [56] (Cavanough J).

[8] [2012] VSC 42.

[10] [1998] HCA 28; (1998) 194 CLR 355.

[11] Ibid 388-9 [91] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).

[12] See, semble, Federal Commissioner of Taxation v GIO (NSW) [1993] FCA 464; (1993) 45 FCR 284, 299 (Hill J); Macquarie Health Corporation Ltd v Federal Commissioner of Taxation [1999] FCA 1819; (1999) 96 FCR 238, 260 (Hill, Sackville and Finn JJ).

[13] Civil Procedure Act 2010 (Vic) s 20.

[14] Civil Procedure Act 2010 (Vic) s 21.

[15] Civil Procedure Act 2010 (Vic) s 22.

[16] Civil Procedure Act 2010 (Vic) s 23.

[17] Civil Procedure Act 2010 (Vic) s 25.

[18] Civil Procedure Act 2010 (Vic) s 26.

[19] [1937] HCA 58; (1937) 59 CLR 641.

[21] [1988] HCA 7; (1988) 164 CLR 387.

[23] Garde-Wilson v Legal Services Board [2008] VSCA 43; (2008) 19 VR 398, 415 [99] (Dodds-Streeton JA).