Dransfield v G A Gathercoles Pty Ltd (Ruling) [2014] VCC 151 (21 January 2014)

County Court of Victoria

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Dransfield v G A Gathercoles Pty Ltd (Ruling) [2014] VCC 151 (21 January 2014)

Last Updated: 3 March 2014

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION

Revised Not Restricted Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-00344

WILLIAM DRANSFIELD	Plaintiff
v
G A GATHERCOLE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2014
DATE OF RULING:	21 January 2014
CASE MAY BE CITED AS:	Dransfield v G A Gathercoles Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2014] VCC 151

RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Referral of medical questions to a Medical Panel
Legislation Cited: Accident Compensation Act 1985, s134AB(16), s45(1)(b)(i) and (ii)
Ruling: Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie with Mr B Hutchison	Maurice Blackburn
For the Defendant	Mr C Miles	Wisewould Mahoney

HIS HONOUR:

1 This is an application before me pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for leave to proceed at common law for injury principally to a right shoulder which has arisen out of the plaintiff’s employment. The defendant has made application pursuant to s45(1)(b)(i) and (ii) of the Act to refer certain medical questions to a Medical Panel as set out in a Notice dated 23 December 2013. The application is resisted by the plaintiff on the basis that it is:
(a) an abuse of process pursuant to ss(1)(b);
(b) alternatively, that the formation of an opinion by the Medical Panel will depend substantially on the resolution of factual issues which are more appropriately determined by the Court (ss(1)(d)).
2 In the first instance (abuse of process), the Court may refuse to refer a medical question to a Medical Panel and thus is discretionary. In the second instance, the provision is mandatory if the grounds are made out.
3 In support of the application, counsel for the defendant stated that notice was given to the plaintiff on or about 23 December 2013 and notice to the Court on or about 15 January 2014. Although the latter date is short of the fourteen days required, counsel seeks relief under s55(b)(ii) on the basis that the plaintiff was appropriately forewarned and the Court is not materially disadvantaged. I am prepared therefore to abridge the time required to the six days’ notice given in lieu of the required fourteen days.
4 Counsel for the plaintiff submits that the abuse of process is made out principally because the matter was marked “Not reached” in this Court on 19 March 2013 and notice was not given, and a decision not made, until shortly prior to 23 December 2013.
5 In making his submission, counsel relies on the decision of this Court of his Honour Judge Saccardo in the matter of Monteiro v Tiago Enterprises Pty Ltd,[1] delivered on 26 March 2012.
6 In deciding a similar application for abuse of process, his Honour, at paragraph 3, set out the following dot points:

“Firstly, the test as to what amounts to an abuse of process is insusceptible of a formulation comprising closed categories;
Secondly, that the process to be employed is that the Court should prevent a misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute amongst right-thinking people;
Thirdly, although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories, namely; firstly, the Court’s procedures are invoked for an illegitimate purpose; secondly, the use of the Court’s procedures is unjustifiably oppressive to one of the parties; thirdly, the use of the Court’s procedures would bring the administration of justice into disrepute.”[2]

7 His Honour, at paragraph 11, noted that he was satisfied that with the service of the plaintiff’s Particulars of Injury in a timely way, the state of the medical evidence in the matter was such that the defendant was in a position to make an informed decision as to whether referral to the Medical Panel should be made in this matter. His Honour thereafter said, at paragraph 13:

“The effect of this application being made as at the trial date will be that the matter will be adjourned to facilitate the referral. If it is refixed with priority, it will be allocated a date perhaps at the end of this year. If it is refixed without priority, it will be allocated a date early next year. Obviously a significant delay will occur in either circumstance.”

8 In paragraph 15, his Honour noted:

“No reason for the delay in the referral was proffered by the defendant and further, that the questions to be considered by the Medical Panel were not prepared prior to this application ...”

was a matter of special significance.”
9 Paragraph 17, his Honour considered that the application would have amounted to an abuse of process, first, because it was in breach of a specific order of the Court made for the purpose of governing the orderly preparation of the matter. (There is no such order in this matter).
10 Secondly, His Honour stated that:

“... the delay in the application will lead to a very significant delay in the refixing and the hearing of this matter and accordingly its final determination which could have been avoided had a timely application been made.”

11 I do note in this case before me, that there is a significant delay, at least between 19 March 2013 and 23 December 2013.
12 His Honour further noted:

“Thirdly, the delay has necessitated the need for the parties to prepare for the trial. In accordance with the orders made ... in this matter notification has been given to medical witnesses that their attendance is required at the trial of this matter. ... .”

13 In the matter before me, I note that two doctors are required for cross-examination and the defendant has reserved its position with respect to cross-examination of the vocational assessors.
14 As his Honour noted:

“Those witnesses have had to make arrangements to attend Court if called upon to do so. Counsel have been briefed by both parties including Senior Counsel on behalf of the plaintiff; conferences must have been undertaken and accordingly considerable expense and time must have been applied to the process of preparation for trial, the utility of which would be stymied if the application by the defendant is given effect to. ... .”

15 Finally, his Honour stated:

“... the plaintiff has been exposed to the pressure of preparing for a trial in the matter. The emotional toll of that process is, in my opinion, not to be underestimated.”

I shall return to this matter at a later time.
16 Further, and alternatively, the plaintiff submits before me that any opinion on the medical questions with respect to loss of earning capacity and quantification thereof will depend substantially on the resolution of factual issues, which are more appropriately determined by a court than a Medical Panel.
17 By contrast, the defendant submits that the essential injury before me is a right shoulder injury which is due to a gradual process over time and there is no need to separate prior or post injuries.
18 Counsel has advised the Court that the plaintiff ceased work in approximately 2008, underwent operative relief on his right shoulder and returned to light duties until he was retrenched some time in 2009. Further, a Medical Panel has given an opinion with respect to his fitness for suitable work as at 2011 and, although that does not amount to an estoppel in this matter, will be adduced as evidence which is relevant and probative.
19 Counsel further submits that the question of general damages is not in dispute and that, in reality, the main, if not sole, issue will be the plaintiff’s residual capacity for suitable work within the meaning of the relevant legislation.
20 Counsel further submits that this is well within the province of Medical Panels to decide and, in fact, is done on a regular basis. There is no dispute as to this latter point by the plaintiff’s counsel.
21 However, the plaintiff’s counsel submits that the need by the defendant to cross-examine not only the plaintiff but two of his supporting medical practitioners and also reserving his right to cross-examine the vocational assessors, must lead to the conclusion, or inference, that the relevant opinions sought to be obtained will depend substantially on the resolution of factual issues, which will be the subject of cross-examination of the appropriate witnesses, and it must follow that those matters would be more appropriately determined by this Court than by a Medical Panel.
22 It was fairly conceded by defence counsel that it would be unlikely that the plaintiff's doctors or vocational assessors would be cross-examined before the Medical Panel and that the Panel would merely read the relevant reports and, of course, the written submissions.
23 Accepting, for the moment, that the issue or issues are as narrow as telegraphed by defence counsel, I note that in the Defendant’s Court Book are a number of vocational assessment reports which appear to be relied upon by the defendant should the case proceed either here or before the Medical Panel. Those reports are dated 21 August 2009, 3 May 2010 and 21 June 2010 and are set out in the Defendant’s Court Book at pages 43 to 63 inclusively.
24 In the first report,[3] the provider has noted:

“Functional literacy and numeracy not formally tested by consultant. Mr Dransfield reports a basic functional standard of spoken and written English, as well as for reading and comprehension. He reports functional standard of numeracy skills; he reports nil computer literacy.”

25 It appears that there are basic issues here with which the plaintiff may take issue with respect to his standards of literacy and numeracy.
26 I further note[4] that the state of the physical injury is described as such:

“This patient has rotator cuff pathology and acromioclavicular joint pathology in the right shoulder which has been incompletely relieved by physiotherapy and arthroscopic surgery.”

27 Further, it is repeated[5] that the plaintiff reports –

“... a basic functional standard of spoken and written English as well as for reading and comprehension. He reports functional standards of numeracy skills.”

28 There are then a number of transferable skills and abilities set out on the same page. For the various headings, it is invariably described as “no skills identified in this area”.
29 On this basis, the vocational assessor considered that the plaintiff was fit for suitable employment, such as a meter reader, parking inspector, or weighbridge operator, no doubt based on the history of the numeracy and literacy skills, but seemingly incompatible with the transferable skills alluded to. Further, for example, the occupation details with respect to meter reader, reads:[6]

“Read electric, gas or water meters, record usage, inspect meters and connections for defects and damage and report irregularities.”

30 Further, with respect to the weighbridge operator, it is recorded:[7]

“Operate weighing plant and issue measurement tickets which provide readings or vehicle and livestock weight.”

31 Finally, the mail sorter is recorded as:[8]

“Collect, sort and dispatch mail within an organisation.”

32 There is no reference to weights lifted or any time and motion aspects with respect to the job or with respect to the injury.
33 This is to be contrasted with the final report, where it is recorded:[9]

“Mr Dransfield is very keen to acquire some keyboard and computing skills. He has been visiting our office on a weekly basis to job search via the internet and is occasionally struggling with mastering the websites and computer equipment. Most importantly, further professional computer tuition would enhance Mr Dransfield’s future employability in such a competitive labour market.”

34 Further, it is stated on the same page:[10]

“As you have been aware, Mr Dransfield has been visiting our city office on a weekly basis job searching via our job search kiosk. He has been struggling with simple commands despite some close supervision and repetitive tuition. Mr Dransfield will benefit from tuition in a TAFE setting that will allow him to learn the fundamentals of working on a computer. Most importantly, the classes will allow him to increase his confidence and learn to ask questions when he needs assistance.”

35 Finally, and most importantly, the operator records:

“I believe that all job seekers today require a knowledge in computing, especially if one is re-entering the workforce. From a vocational prospective (sic) completing a computer course and adding those credentials to one’s resume, can only be a positive step in securing new employment.”

36 Thus, it would appear to me that there are many issues which raise questions of fact which will need to be resolved, and that any opinion or finding by the Court will depend substantially on the resolution of factual issues which, in my opinion, will be more appropriately determined by a court than by a Medical Panel mainly, if not exclusively, due to the defendant’s resource of experienced counsel to cross-examine in the manner already foreshadowed. The application will be refused.
37 With respect to the abuse of process submission, I do not finally decide that matter, as I have already decided in the manner described, although I do note it is a cause for concern that the considerable delay between 19 March 2013 and 23 December 2013 is not a practice that should be encouraged.

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[1] [2012] VCC 362

[2] At paragraphs [3] – [5]

[3] DCB 46

[4] DCB 54

[5] DCB 55

[6] DCB 56

[7] DCB 57

[8] DCB 57

[9] DCB 62

[10] DCB 62