Stapleton v Central Club Hotel & Ors

• following the procedure whilst she was still under the effects of an epidural anaesthetic, she was inappropriately mobilised, causing her to fall and suffer further injuries, including with specific import to the present application, psychiatric injury; and

• these injuries arose by reason of the negligence of the second and third defendants.

4 It is with respect to these incidents and injuries that the plaintiff seeks damages against each of the defendants.

5 The plaintiff's entitlement to claim damages for non-pecuniary loss against each of the defendants is governed by the provisions of the Wrongs Act 1958 (as amended) ("the primary Act").

6 Part VBA of the primary Act operates so as to limit the ability of the plaintiff to recover damages for non-economic loss in this proceeding unless she has a "significant injury."[1]

7 "Significant injury" is defined by s28LF of the primary Act in the following terms:

"28LF What is significant injury?

(1) ...

(2) For the purposes of this Part psychiatric injury to a person is significant injury if -

(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.

(3) ... ."

8 The "threshold level" which is required to be met in order to give rise to a significant psychiatric injury is defined in s28LB of the primary Act in the following terms:

"threshold level means -

(a) ...

(b) in the case of psychiatric injury, impairment of more than 10 per cent."

"28LN Certificate of assessment

(1) Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.

(2) The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.

(3) ... ."

"28LWE Referral of medical question to Medical Panel

(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.

"28LZH Effect of determination as to threshold level

(1) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies 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 this Part.

(2) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part."

The Plaintiff's compliance with the primary Act as to her claim for non-pecuniary loss damages by reason of the psychiatric injury she has suffered

12 In this instance, Dr Michael Epstein, an approved Medical Practitioner pursuant to the provisions of the primary Act, provided a Certificate dated 29 August 2012 certifying that the plaintiff's degree of impairment resulting from her alleged psychiatric injury satisfied the threshold under the primary Act.

13 Pursuant to the provisions of s28LWE of the primary Act, the defendants, upon receipt of the impairment assessment of Dr Epstein, referred the question as to whether the plaintiff presented with an injury which satisfied the threshold requirements with respect to psychiatric injury to a Medical Panel for determination.

14 On 13 October 2015, the Medical Panel determined that the plaintiff's degree of relevant psychiatric impairment was not more than 10% and accordingly that it did not satisfy the threshold level (the "Medical Panel determination").

• Section 28LZH(2) of the primary Act operated to make the Medical Panel determination binding upon the Court.

• The effect of the Medical Panel determination was to preclude the plaintiff from making any claim for compensation with respect to the non-pecuniary loss consequences of the psychiatric injury suffered by her in the incidents the subject of the current proceeding.

16 The Wrongs Amendment Act 2015 (the "amending Act") commenced on 19 November 2015.

17 The effect of the amending Act was to substitute for the definition of "threshold level" in s28LB of the primary Act, insofar as psychiatric injury was concerned, the definition:

"threshold level means -

(a) ..

(b) in the case of psychiatric injury, impairment of 10 per cent or more;

... ."

18 It is clear that the amended definition of the threshold level with respect to psychiatric injury introduced by the amending Act was ameliorative, in that it reduced the relevant threshold level from "more than 10 per cent" to "10 per cent or more" and accordingly had the effect of increasing the pool of litigants whose impairment level entitled them to maintain a proceeding to recover damages with respect to non-pecuniary loss.

19 The transitional provisions of the amending Act, insofar as they are relevant to this application, are set out in s28LZS of the Act as follows:

(1) The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss to which this Part applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred.

(2) Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for noneconomic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section.

(3) Section 28LZMA, as inserted by section 12 of the Wrongs Amendment Act 2015, applies to a proceeding for a claim for the recovery of damages for non-economic loss to which this Part applies that has been commenced before the commencement of section 12 of that Act but has not been finally settled or determined before the commencement of that section."

20 Section 28LACB of the amending Act confers upon a court the power to resolve transitional difficulties in a proceeding because of the operation of the amending Act.

21 On 21 January 2016, the plaintiff obtained a fresh Certificate from Dr Epstein (the further certificate) which purports to assess the degree of impairment resulting from the plaintiff's psychiatric injury in this instance according to the reduced threshold as established by the amending Act.

22 The defendant takes issue with the entitlement of the plaintiff to rely upon the Certificate.

23 In these circumstances I have been asked by the parties to provide an answer to the following question:

"Does the assessment made in the Further Certificate, that the plaintiff has a degree of impairment resulting from her Psychiatric Injury that satisfies the threshold level, have effect pursuant to s 28LF(2)(a) of the Wrongs Act such that the plaintiff is taken to have suffered significant injury for the purposes of the Act?"

24 The respective positions of the parties as to the issue which arises in this instance may be summarised as follows:

(i) The Medical Panel determination that the plaintiff presented with psychiatric injury resulting from the injury sustained by her which did not satisfy the threshold level was, at the time at which it was made, a binding determination with legal consequences in a proceeding;

(ii) s14 of the Interpretation of Legislation Act 1984 ("the Interpretation Act") applies to the interpretation of the provisions of the amending Act, s14(2) providing relevantly:

"14 Provision as to effect of repeal etc. of Acts

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears -

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

(ea) affect any immunity or indemnity conferred or given by or under that Act or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of anything mentioned in paragraphs (e) to (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

(iii) That the Medical Panel determination in this instance was an activity which fell within one or other of the definitions set out in s14(2)(c)-(g) of the Interpretation of Legislation Act 1984; and

(iv) That whilst the transitional provisions of the amending Act override the presumption against retrospectivity to the extent that this principle may have prevented the amending Act from applying in respect of:

(a) injury arising by reason of acts or omissions which occurred prior to the commencement of the amending Act; and or

(b) injury in which a proceeding had been commenced before the introduction of the amending Act but had not been finally settled or determined;

the amending Act should not be interpreted as operating so as to allow the plaintiff to rely upon the Further Certificate.

• the transitional sections make it clear that the amending Act applies in respect of an injury suffered by a person irrespective of when the act or omission causing the injury occurred, notwithstanding that a proceeding for recovery of damages for non-economic loss has been commenced if that proceeding has not been finally settled or determined before the commencement of the amending Act;

• the statutory scheme behind the introduction of the new thresholds was implemented so as to reduce any injustice associated with the old thresholds and increase the numbers of injured persons who would qualify for the right to maintain a claim for non-pecuniary loss in respect of injuries to which the provisions of the Act apply;

• the plain meaning of these words operates so as to apply to the psychiatric injury suffered by the plaintiff in this instance, the result being that the plaintiff is entitled now to serve a certificate certifying that she presents with a psychiatric impairment which exceeds the definition of "significant injury" insofar as it applies to psychiatric injury as set out in the amending Act; and

• upon the service of such a certificate, the defendants have the right to refer a question to the Medical Panel as to whether or not the plaintiff's psychiatric impairment does or does not meet the current statutory threshold.

27 It is put on behalf of the plaintiff that in those circumstances:

• the Medical Panel determination was merely a determination as to the old threshold; and

• whilst the Medical Panel determination was and remains binding upon a court, the injury suffered by the plaintiff is one to which the provisions of s28LZS(1) and (2) apply and accordingly that the plaintiff is entitled to rely upon the January 2016 Certificate.

28 I accept the position put on behalf of the plaintiff that, were a further referral made to a Medical Panel requiring it to determine whether or not the plaintiff's psychiatric impairment satisfies the lowered threshold introduced by the amending Act:

• such a referral would involve a finding different to the Medical Panel determination having regard to the alteration in the threshold introduced by the amending Act; and accordingly

• the fact finding required of the panel in such a referral:

(i) would be different to that previously applied by the Medical Panel in arriving at its 15 October 2015 determination; and

(ii) would not involve a finding which was in any way inconsistent with the Medical Panel's determination of 15 October 2015.

29 Notwithstanding the above, for the reasons set out below I am satisfied that the question for my consideration in this instance should be answered in the negative.

30 The amending Act takes effect within Part VBA of the primary Act, all the provisions of which are substantive law.[2]

31 The operation of part VBA is generally restrictive in nature in that it imposes restrictions upon the ability to recover damages for non-pecuniary loss in respect of injuries to which the Part has application.

32 In my opinion it could not be said that the amending Act was purely beneficial in nature given that it fixes caps as to damages for past and future loss of earnings and for non-economic loss, and in that sense, restricts the common law right of injured claimants to damages which are restorative in nature.

33 In my opinion the amending Act falls into the nature of that described by the Chief Justice in MyEnvironment Inc v VicForests:[3]

"In my view, the authorities can be seen as supporting two related propositions. First, that it is rarely, if ever, the case that legislation pursues a single purpose to the fullest extent possible. Rather legislation is typically the result of a carefully considered attempt at balancing multiple and sometimes competing objectives. To assume that the apparently confined words of a provision must be given an expansive operation on the basis of what is perceived to be the legislation's primary purpose may frustrate rather than effectuate legislative intent."

34 I am satisfied that in approaching the task of statutory construction involved in this instance, I should employ the approach referred to by the Chief Justice in VicForests and further, that espoused by Tate JA in the same case in which Her Honour concluded that the legislative scheme before the Court in that instance did not compel any particular construction, nor was it possible to identify a single purpose or object and that the "correct construction ... must depend on the words used" within the relevant context.[4]

35 I am satisfied that the determination made by the Medical Panel that the plaintiff's psychiatric impairment did not meet the statutory threshold, as it was then defined by the primary Act, involved a valid impairment assessment which was binding upon the Court at the time at which it was made.

36 No issue is taken by either of the parties as to this point.

37 In my opinion, by virtue of the provisions of s28LF, the structure of the primary Act, insofar as psychiatric injury is involved, is such that a determination by the Medical Panel as to the degree of impairment associated with such an injury assumes a position of primacy, in that:

• it displaces any contrary finding the subject of an assessment and certificate issued by an approved medical practitioner pursuant to s28LF of the Act; and

• it is binding upon the Court pursuant to s28LZH of the primary Act.

38 In Transport Accident Commission v Lanson,[5] Phillips JA described the way in which statutory retrospectivity may arise in the following terms:

"... True retrospectivity is seen when a statute changing the law is expressly given effect, once it comes into operation, as from some earlier date ... . By such a device Parliament is deeming, albeit for the future, the law to have been, as from that earlier date, other than it was at the time. But that is not the present problem; we are concerned with retrospectivity in what Fullagar J called in Maxwell v Murphy its 'extended meaning', being that more colloquial sense in which the word is used when a statute, usually an amending statute, is given effect with respect to rights and duties already defined and settled by reference to events which are past, attaching new consequences to those events, albeit for the future but none the less altering or interfering with those rights and duties as previously defined and settled. It is not enough to justify invoking the presumption against retrospectivity to find that new consequences are being attached to past events, for that is commonly the purpose of new legislation: ... . There must be something more, which will be found in the interference, if such it be, with existing rights and duties - 'a right ... or liability, acquired, accrued or incurred' under the statute before its amendment, as it is described in s14(2)."[6]

39 Applying the approach as set out by the Court of Appeal in Lanson to my analysis in this instance, l am satisfied that the application of the provisions of the amending Act to the Medical Panel determination would involve statutory retrospectivity.

40 In Sutton v Bradshaw[7] Brooking J considered a certificate provided by a breathalyser operator pursuant to the provision of the Motor Car Act 1958 to be "something 'duly done' under the repealed Act which is preserved by s 14(2) (d)" of the Interpretation Act.

41 I am satisfied in this instance that the Medical Panel determination as to the degree of impairment associated with the plaintiff's psychiatric injury appropriately falls within the category of one or other of the matters encompassed by the provisions of s14(2)(c), (d) and (g) of the Interpretation Act.[8]

42 It follows by reason of s14(2) of the Interpretation Act that the provisions of the amending Act should not be interpreted as having retrospective application so as to displace the medical panel determination unless the amending Act demonstrates an express intention to do so.

43 In making that finding, I adopt the approach employed by Brooking J in J & P Lemming Holdings Pty Ltd v O'Keefe[9] that a prima facie presumption applies that an act is not intended to affect rights or liabilities which have already been acquired or incurred before it has come into operation, and unless a contrary intention expressly appears within the Act, the amendment of a provision of an Act shall not be interpreted to affect any right, privilege, obligation or liability acquired, accrued or incurred under that provision.

(i) The specific statement within s28LZS of the amending Act to the effect that:

• the amended threshold applies to all injuries irrespective of the date upon which the act or omission causing the injury occurred;

• the amended threshold applies in respect to a proceeding for a claim for the recovery of damages which was commenced prior to the introduction of the amending Act but which had not been settled or determined prior to that date;

• Section 28LZNA applies to claims for the recovery of damages for non-economic loss which had been commenced before the introduction of the amending Act but which had not been finally settled or determined before that date; and

(ii) The failure by the amending Act to specifically render invalid any determination by a medical panel as to the significance of an injury which was based on a definition of significant injury other than that introduced by the amending Act;

I am not satisfied that the provisions of the amending Act demonstrate an express intention that the act should have retrospective application so as to displace the Medical Panel determination.

45 I am further satisfied that the structure of the amending Act:

• in making specific reference to three areas in which the provisions of the Act should have retrospective application; but

• in failing to make any reference to the fact that the amending Act should apply to a pre-existing determination of a Medical Panel as to whether a psychiatric injury gave rise to a level of impairment which exceeded, or did not exceed, the relevant statutory threshold;

is consistent with, and supports the finding which I have made.

46 Further, in my opinion, the failure by the amending Act to make any reference to the impact which the introduction of altered thresholds should have upon a binding determination by the Medical Panel in respect of an injury the subject of a proceeding which had been commenced but had not been resolved or compromised, provides further support for my finding in this instance given the importance of the Medical Panel process in the statutory scheme.

47 For the reasons set out above, I am satisfied that the amending Act should not be interpreted as having retrospective application such as to undermine the Medical Panel finding or the effect of that finding namely that the plaintiff does not present with a psychiatric impairment which meets the statutory definition of significant and which allows her to pursue a claim for non- pecuniary loss damages in this proceeding.

• The Medical Panel finding in this instance, that the psychiatric injury with which the plaintiff presents did not meet the relevant statutory threshold, continues to have the effect of shutting the plaintiff out from any right to pursue a claim for non-pecuniary loss damages with respect to that injury in this proceeding; and

• The amending Act does not entitle the plaintiff to rely upon the Further Certificate, as to do so would be contrary to s28LF(2)(aa) of the Act.

49 For the reasons set out above the question for my consideration namely:

"Does the assessment made in the Further Certificate, that the plaintiff has a degree of impairment resulting from her Psychiatric Injury that satisfies the threshold level, have effect pursuant to s 28LF(2)(a) of the Wrongs Act such that the plaintiff is taken to have suffered significant injury for the purposes of the Act?"

50 I will hear the parties as to any further order required in the proceeding and upon the issue as to costs.

[3] (2013) 42 VR 456 at paragraph [14]

[4] MyEnvironment Inc v VicForests (ibid) at 500, paragraph [155]. See also Baytectrades Pty Ltd v Coinvest Ltd [2015] VSCA 342, see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at paragraphs [69]-[70]

[5] [2001] VSCA 84; (2001) 3 VR 250 at paragraph [45]

[6] It is clear that in this instance, Phillips JA was referring to s14(2) of the Interpretation of Legislation Act 1984

[7] [1988] VicRp 83; [1988] VR 920

[9] [1984] VicRp 79; [1984] VR 1005