Plaintiffs v First Defendant Second Defendant

2 Mr Guiseppe Multari commenced this proceeding by a writ filed on 10 May 2013. He sought damages against the defendants, 'Amaca' and 'Seltsam', respectively, for their negligence in supplying and distributing asbestos products which he used in the construction of his family home from in or about 1965, in the course of his employment as a carpenter from about 1965 until about 1970, and then, from about 1970 until about 31 August 1985 when he was a self-employed carpenter. He claimed to have contracted asbestos-related lung disease as a result.

3 Mr Multari claimed to have first become aware that he was suffering the lung disease in about 2011. He particularised his injury as 'Asbestos related lung disease. Asbestosis. Pleural plaques. Shortness of breath. Reduced lung function. Reduced life expectancy. Anxiety, depression and psychological suffering'.[1]

4 Mr Multari died on about 19 June 2013. The present plaintiffs, the executors of his estate, claim that he died as a result of a dust-related disease and seek to maintain his action under s 29 of the Administration and Probate Act 1958. In addition, they make a claim on behalf of his dependent widow (the first plaintiff) under Part III of the Wrongs Act.

5 The plaintiffs have settled their claims against Amaca, but those claims have not yet been dismissed. Amaca also remains a party to contribution proceedings between the defendants.

6 On the first day of the trial, Seltsam obtained leave to file an amended defence alleging, for the first time, that the plaintiffs were not entitled to recover damages for non-economic loss in respect of Mr Multari's injuries before it was established that he had suffered 'significant injury' within the meaning of Part VBA of the Wrongs Act. Mr Multari's allegedly surviving claim includes one for non-economic damages.[2]

7 The plaintiffs unsuccessfully resisted the grant of leave to Seltsam. Senior counsel confirmed that they did not contend that a significant injury assessment could not be obtained after Mr Multari's death. I was not persuaded by his submission that the amendment should not be allowed because, although the plaintiffs did not require time to respond to it, they were prejudiced because they might have acted to remedy the situation if the point had been taken before the trial commenced.

8 The plaintiffs then filed a reply to the amended defence to the effect that Part VBA did not apply to their non-economic damages claims because they fell within the exclusionary provisions of s 28LC(2)(d) of the Wrongs Act.

9 Part VBA of the Wrongs Act contains many relevant provisions. I will set out only two sections here:

28LC Application of Part

(1) This Part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by subsection (2) or (3).

(2) This Part does not apply to the following claims for the recovery of damages for non-economic loss -

...

(d) a claim in respect of an injury or death which entitles, or may entitle, a worker, or a dependant of a worker, within the meaning of the Workers Compensation Act 1958 to compensation under that Act.

28LE Restriction on recovery of damages for non-economic loss

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

10 In oral submissions, the plaintiffs also argued, in the alternative, that, even if Part VBA did apply, s 28LE would not require them to establish that Mr Multari's injury was a 'significant injury' before the trial. It only obliged them to establish that 'significant injury' before they sought to recover non-economic damages under any judgment in their favour.

11 Seltsam seeks a preliminary ruling as to whether Part VBA applies to the plaintiffs' claims and, to the extent that it does, as to whether it obliges them to establish the existence of a 'significant injury' before trial. That issue will turn, at least in relation to the alleged period of Mr Multari's employment between 1965 and 1970, upon whether the plaintiffs' claims are exempted from the operation of Part VBA under the exclusionary provisions of s 28LC(2)(d).

12 The plaintiffs have submitted only generally that their claims fall within the exclusion under s 28LC(2)(d). Neither party has cited relevant provisions of the Workers Compensation Act 1958 or referred to the evidence upon which they will rely in relation to the issue of the operation of the exclusionary provisions. There are also live issues as to whether Mr Multari suffered from or died as a result of the alleged asbestosis or other disease, making a statement of agreed facts perhaps unlikely.

13 In those circumstances, I have adjourned the issue of the effect of s 28LC(2)(d) to a date to be fixed. Given the factual disputes, it might ultimately be appropriate for that question be addressed at trial in the context of relevant evidence as to Mr Multari's exposure to asbestos dust during any period of employment and any resulting injury and non-economic loss.

14 On the other hand, Seltsam has persuaded me that, as far as the claims for non-economic loss damages in respect of any injury not covered by s 28LC(2)(d) are concerned, s 28LE would require the plaintiffs to establish before the trial that the alleged injury is 'significant injury'.

15 To decide upon its meaning, it is necessary first to consider the text of s 28LE. There is some ambiguity in the wording of the provision as it refers to an entitlement to 'recover' damages.

16 I am not however persuaded by the plaintiffs' contention that s 28LE only places a hurdle in the way of recovery of damages which may have already been awarded by a court and that it does not require a pre-trial determination of the issue. There are three relevant decisions of the Court of Appeal.

17 In Esso Australia Pty Ltd v Robertson,[3] Warren CJ, Batt and Chernov JJA said of a claim for compensation under s 85B of the Sentencing Act 1991 that:

It follows, as we have said, that, if the respondent's claim under s.85B constitutes a claim for 'damages' within the meaning of Part VBA [of the Wrongs Act], s.28LE applies and the respondent is not entitled to an award of compensation under s.85B because he had not been 'assessed' as is required by that provision.[4]

18 The Court of Appeal in Esso went on to state that Part VBA was 'concerned to prohibit claims for damages for non-economic loss based on fault where the injury is not assessed as a "significant injury"'.[5]

19 The Court of Appeal reached a conclusion to similar effect in Hynes v Hynes[6] where Ashley JA said, on behalf of the Court:[7]

Fifth, Div 4 of Pt VBA sets up what is described as the "Procedure for Claim for Non-Economic Loss". Although s 28LE speaks of a person not being entitled to recover damages for non-economic loss unless the person has suffered significant injury, Div 4 makes it clear enough that obtaining a relevant assessment, or its functional equivalent, will ordinarily precede commencement of a proceeding. Note also the document or documents which must be filed in court before the determination of a claim. (Citations omitted)[8]

20 Another view contrary to that which the plaintiffs urge upon the Court was expressed by Maxwell P, Weinberg JA and Ferguson AJA in Colquhuon v Capital Radiology Pty Ltd.[9] Refusing to characterise a medical panel's decision as one which took away rights, their Honours said this:

1. The entitlement to sue is limited by the legislation. The right to sue for noneconomic loss has been taken away, by statute, from all persons other than those who have suffered significant injury (as defined).
2. ...The determination of that medical question does, of course, have consequences for the wouldbe claimant's entitlement to sue for noneconomic loss. But it is simply not correct to say that an adverse decision by the panel 'takes away rights'. A person whose degree of impairment does not satisfy the threshold level has no right to sue for non-economic loss. No right is 'taken away' from the person when the panel so determines.
3. The matter may be approached another way. Section 28LE establishes an eligibility condition which must be satisfied before a person may bring an action to recover damages for noneconomic loss. Unless that condition is satisfied, there is no right to sue. Eligibility is made to depend upon the person's 'degree of impairment of the whole person', which is a medical question, not a legal question. The fact that the answer to the medical question determines whether or not the person satisfies the statutory criterion of eligibility does not alter the character of the decision which the panel makes.[10]

21 In Colquhoun, the Court of Appeal contrasted the role of a medical panel under Part VBA with that of a panel in proceedings under the Accident Compensation Act 1985, noting that, under the Accident Compensation Act, a medical question may only be referred to a panel after proceedings have been commenced.[11] Both a panel under the Accident Compensation Act and a Part VBA panel were providing expert opinions on medical questions. A panel under the Accident Compensation Act regime was doing so in aid of the court's judicial function because it could not be asked a medical question until after the issue of proceedings.[12] The panel under Part VBA was different and performed its function before the issue of proceedings and its assessment would determine whether there would be any proceeding for non-economic loss.[13]

22 I note, too, that the Court of Appeal held that a medical panel under Part VBA 'must accord the claimant procedural fairness'; 'may need to decide whether the claimant is telling the truth' and 'may need to consider questions of causation'.[14] If more were needed, the possibility of inconsistent findings by a court and a medical panel, if a non-appellable assessment were able to occur after a trial, is another factor militating in favour of the view that Part VBA requires the establishment of a significant injury before a trial.

23 There are also many indications in the statutory context of Part VBA that the s 28LE should be construed as requiring the establishment of a 'significant injury' normally before trial.[15] Those indications include the following:

• Division 4 of Part VBA is entitled 'Procedure for claim for non-economic loss' and refers to a 'claimant' and 'respondent'.

• Both s 28LO and s 28LW contain otherwise apparently unnecessary provisions relating to the identification of the proper respondent to the claim.

• Sections 28LO(5) and 28LT(3) both require the provision to the respondent 'prescribed information' which may include similarly apparently otherwise unnecessary information as to the claimant's identity, the nature of the claim, the injury, the incident out of which the alleged injury arose and any medical practitioner who treated the injury.

• The relevant limitation period (for the issue of proceedings) is suspended by service of a copy of the certificate of assessment under s 28LV.

• Under s 28LZH, determinations by a medical panel that an impairment does or does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of Part VBA.

• Section 28LZI provides that there is no appeal to a court from the medical panel's determination.

• Section 28ZLM applies to a claimant who brings a proceeding in a court in respect of a claim for non-economic loss to which Part VBA applies, requiring the claimant to file a copy of a certificate of assessment or waiver agreement, medical panel determination certificate or statements that there has been a deemed acceptance of assessment or a deemed significant injury.

24 The second reading speech in relation to the Wrongs and Limitation of Actions Acts (Insurance Reform) Bill inserting Part VBA is also replete with references to the pre-trial nature of the process under the new Part, supporting a conclusion that the statutory purpose of s 28LE was to introduce a preliminary process. For instance, the Government was said by Premier Bracks to have 'decided to implement a threshold for access to general damages';[16] the threshold was also to act as 'a gateway for a court to determine whether damages for non-economic loss can be awarded to a plaintiff.'[17] Indeed, the Premier went on to say that the bill set out 'pre-litigation procedures that enable claimants and respondents to determine whether a claimant's injuries will entitle him or her to recover general damages.'[18]

25 Counsel for the plaintiffs further submits that the Court can make any necessary assessment of significant injury under s 28LZN(1) of the Wrongs Act, citing Bowles v Coles Myer Ltd.[19] It is enough to say that the regime under the Accident Compensation Act relating to the determination as to the existence of a 'serious injury' is distinguishable. In my view too, s 28LZN(1) is qualified by the remaining subsections of s 28LZN and the plaintiffs do not submit that either sub-s (2) or (3) of s 28LZN are applicable in this case.

26 I note that the question of the effect of s 28LE upon the commencement of the proceeding has not been raised and I make no determination in relation to it. In my view, however, s 28LE does require the plaintiffs to establish the existence of a significant injury before the resumption of the trial in respect of any injury not falling within the exclusionary provisions of s 28LC(2)(d).

[1] Statement of Claim, 3 June 2013, [10].

[2] See Administration and Probate Act 1958 s 29(2A).

[3] [2005] VSCA 138 ('Esso').

[4] Ibid [23]. In a footnote to this passage, the Court also noted that a waiver of the requirement of assessment had not been obtained or sought under Division 4 of Part VBA.

[5] Ibid [27] (Warren CJ, Batt and Chernov JJA).

[6] [2007] VSCA 7; (2007) 15 VR 475.

[7] Ashley and Redlich JJA and Bell AJA.

[8] [2007] VSCA 7; (2007) 15 VR 475, 481-2, [34] (Citing, as instances, ss 28LV and 28 LZM and noting that the procedure for the court to make the assessment under s 28LZN would apply in special cases).

[9] [2013] VSCA 58 ('Colquhoun').

[10] Ibid [14]-[16], quoting Wrongs Act s 28LF(1).

[12] Ibid, citing Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434.

[15] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby & Hayne JJ).

[16] Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1782 (Premier Steve Bracks).

[19] [1995] VicRp 32; [1995] 1 VR 480.