Kegg v Bankstown City Council [2001] NSWCC 169

Reported Decision : (2001) 22 NSWCCR 486

Compensation Court of New South Wales

CITATION : Kegg v Bankstown City Council [2001] NSWCC 169 PARTIES : Fiona Kegg Bankstown City Council MATTER NUMBER(S) : 4702 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 17th August 2001 EX TEMPORE JUDGMENT DATE : 08/17/2001

FOR APPLICANT: Mr J M Harris instructed by Saville & Walkom LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr F J Doak

JUDGMENT: 1. This is a summons filed by Fiona Jane Kegg against Bankstown City Council in which she seeks orders that an application for reference to a medical panel, being medical matter number 0004243/01 filed on 16 July 2001, be refused and/or struck out, and for costs and such other order as the Court deems fit in the circumstances. The application for a medical board by the respondent employer Bankstown City Council sought to be struck out is Exhibit AA, and the claimant read the affidavit of Peter Leonard Saville, solicitor, which I was informed was filed in this Court on 3 August last with the summons. 2. The affidavit of Mr Saville establishes the following order of events. On 28 June 2001 Messrs Bartier Perry, solicitors for the respondent, Bankstown City Council, wrote to the solicitors for the claimant Messrs Saville and Walkom a letter which is Exhibit A to Mr Saville's affidavit. It enclosed by way of service a report of Dr Michael Eagleton dated 27 June 2001 with an annexure. In accordance with that report Messrs Bartier Perry said in that letter that they were instructed to submit an offer of $7,200 based on 12 per cent permanent impairment of the back, referring obviously to s 66 of the Workers Compensation Act 1987 ("the Act") and in particular the table item for permanent impairment of the back under s 66 of the Act. Messrs Bartier Perry added in that letter that if they did not hear from the applicant within 21 days, they would assume that the offer was not accepted and further indicated that they were then instructed to apply "to the medical panel for assessment" meaning presumably that they were instructed to apply for a medical panel to assess the impairment under the Act. 3. Annexure B to Mr Saville's affidavit is an Ordinary Statement of Claim filed in the District Court by the claimant as plaintiff against the respondent Bankstown City Council as defendant claiming damages in respect of what is alleged to be that defendant's negligence in relation to an accident on 31 May 2000 when it is alleged that the plaintiff and co-workers were directed by their supervisors, presumably in the employ of the defendant, to move heavy terracotta pots from an upstairs level of a nursery to the ground level thereof, and that while moving a terracotta pot downstairs with the assistance of a Mr Lindsay Campbell, a person employed by the defendant, the plaintiff bore the entirety of the weight of the pot because Mr Campbell ceased to lift/or carry the pot. It is alleged in the Statement of Claim that the plaintiff's injuries, loss and damage were caused by the negligence of the defendant, which is then particularised in ways which need not detain me, and the Statement of Claim then alleges damage in the form of, inter alia, a back injury including disc prolapse of L4/L5. There is no dispute that the accident of 31 May 2000 is that said to cause the back impairment found by Dr Eagleton which was the subject of the respondent's s 66 offer. 4. This Statement of Claim is dated 26 June 2001, and Mr Saville's affidavit says in par 4 thereof that he caused this Statement of Claim to be filed on 27 June 2001, which of course is one day prior to the date of Messrs Bartier Perry's letter to Messrs Saville and Walkom, the claimant's solicitors, dated 28 June 2001 to which I have already referred, although no doubt Messrs Bartier Perry were not aware of the issue of the Statement of Claim at the time of writing that letter, because it had not then been served upon its client Bankstown City Council as defendant. Certainly the contrary does not appear in Mr Saville's affidavit. 5. Relevantly, what next occurred is that Messrs Bartier Perry filed on 16 July 2001 the application for a medical panel which is Exhibit AA before me. It seeks referral of the applicant to a medical panel of this Court to assess permanent loss of use of the right leg at or above the knee and permanent impairment of the back under s 66 of the Act. 6. Messrs Saville and Walkom, the claimant's solicitors then wrote a letter of 26 July 2001 which is Exhibit E to Mr Saville's affidavit to Messrs Bartier Perry referring to the fact that they had received the abovementioned application for a medical panel, and to the fact that a Statement of Claim had been issued against the respondent Bankstown City Council as defendant, and requesting that they, Bartier Perry, advise their position forthwith, and threatening that otherwise an application would be made to the Compensation Court objecting to their client's application for appointment of a medical panel without further notice. 7. The affidavit of Mr Saville then goes on in par 11 to say that Mr Saville telephoned Mr Stephen Walker of Bartier Perry as solicitor for the employer, as it is put in the affidavit, and was told that the respondent Bankstown City Council did not propose to withdraw its application for a medical panel, because it was believed that the outcome of the panel was relevant to common law threshold issues under s 151G and s 151H of the Act. The summons before me was apparently then filed. 8. It is common ground between the parties today that the respondent's right to a medical panel resides, if at all, in the terms of s 122 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act"). Relevantly, this reads: (1) In this section: "Medical dispute" means a disagreement between the worker and the employer as to: (a) the worker's condition, or (b) the worker's fitness for employment. (2) If there is a medical dispute, the Registrar of the Compensation Court must, on the application of either the worker or the employer, refer the medical dispute to a medical panel or (if subsection (3) permits) to a medical referee 9. The argument of Mr Harris for the claimant is that there is no "medical dispute" within s 122(1). Mr Doak for the respondent replies that there is. The argument of the parties was short and to the point and did not involve reference to authority although, as I shall later canvass, the matter is not free of authority. Mr Harris's simple argument is that because at the time Messrs Bartier Perry wrote the letter making an offer of settlement which is Exhibit A to Mr Saville's affidavit to which I have already referred, the claimant had already elected within the meaning of s 151A of the Act to receive common law damages rather than s 66 compensation for permanent loss, and hence no "medical dispute" within s 122(1) of the WIM Act existed after such election. 10. S 151A of the Act, after defining "permanent loss compensation "in subs (1) as "compensation under Division 4 of Part III" (which includes s 66 compensation), provides relevantly: (2) a person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury; and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury); or (b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). 11. It would appear to me that the words "by commencing proceedings in a court to recover damages" in subpar (a) of subs (3) of the section clearly encompass the present claimant as Mr Harris argues, so that by the commencement of proceedings by filing a Statement of Claim on 27 June 2001 as set out in Mr Saville's affidavit, which has not been contradicted in any way by evidence from the respondent, an election occurred whereby the claimant ceased to be entitled by claiming damages in respect of the injury of 31 May 2000 to s 66 compensation, being "permanent loss compensation" as referred to in subpar (a) of s 151A(3) of the Act. 12. The result is that, unknown to the respondent when it wrote its letter of 28 June 2001, annexure A to Mr Saville's affidavit, to the claimant's solicitors, it was making an offer of settlement in respect of s 66 rights which no longer existed because of the filing of the Statement of Claim the day before. Be that as it may, it knew such rights certainly no longer existed at the time of the filing by it of the application for medical panel on 16 July 2001 (according to the filing sticker annexed to it by this Court) because it is perfectly clear that it was then aware that the plaintiff had made an election under s 151A, as annexure C to Mr Saville's affidavit is an affidavit of service of Catherine Byrne sworn 6 July 2001 asserting that on 5 July 2001 she served the Statement of Claim, annexure B to Mr Saville's affidavit, on Mr G Brown, group manager of the respondent Bankstown City Council, saying to him "I have these documents to serve on Bankstown City Council" whereupon Mr Brown is said in the affidavit to have replied "Yes, I can accept them". The affidavit does not make clear that this occurred at the premises of the respondent, but no evidence is called to suggest that this did not occur, nor that it is disputed that Mr G Brown held at the time of the events referred to in the affidavit the position of group manager with the respondent and thus had authority to accept service of the Statement of Claim on behalf of the respondent. 13. It would thus appear as I have said that as of 5 July 2001, as a result of service of the Statement of Claim upon it, the respondent was aware of the plaintiff's election under s 151A of the Act not to receive permanent loss compensation under s 66 by claiming damages in relation to the very injury giving rise to possible rights under s 66 which was the subject of the respondent's offer of settlement by its letter of 28 June 2001, annexure A to Mr Saville's affidavit. Thus by extension it knew of such election when it filed the present application for medical panel on 16 July 2001. 14. Mr Doak argues, as I understand him, that there was nevertheless a "medical dispute" within s 122(1) of the WIM Act as at the date of filing of the application for medical board by the respondent as set out above, because firstly the claimant had not accepted the respondent's s 66 offer in its letter of 28 June 2001, and secondly because by filing a Statement of Claim the claimant had placed in issue the injuries he allegedly received as a result of the defendant's alleged negligence on 31 May 2000. No defence filed by the defendant is in evidence before me, but I am prepared to assume for purposes of the present argument that one was filed which traversed in the ordinary way such part of the Statement of Claim as alleged injury, loss and damage. Assuming that to be so, was there a "medical dispute" within s 122(1) of the WIM Act when the respondent filed its application for medical board? 15. The expression "medical dispute" in s 122(1) is, as I have said, not free of authority, although counsel did not refer me to any. In Illawarra Paving Pty Ltd v Simone (1995) 11 NSWCCR 529 Neilson J referred at 535F to definitions of "disagreement" in the Shorter Oxford English Dictionary (1st ed.) including "want of agreement or harmony" and "refusal to agree or assent". His Honour held that in circumstances where a worker had made a claim under the Act for s 66 compensation, and no reply was received in a period of almost six months between the making of the worker's claim and an application for a medical panel under s 131 of the Act (now replaced by s 122 of the WIM Act), a "medical dispute" within s 131 existed, notwithstanding the lack of any specific response on the employer's part to the worker's claim. Similarly, in Welsh v TNT Express (1993) 9 NSWCCR 345 Geraghty J held that a "medical dispute" within s 131 of the Act occurred when an Application for Determination was filed claiming s 66 compensation and an answer was subsequently filed placing in issue injury and incapacity. 16. Similarly, it might be argued that the failure of the claimant's solicitors to accept the offer contained in the respondent's letter to them of 28 June 2001, annexure A to Mr Saville's affidavit, or even to reply to it, brought into existence a "medical dispute" within s 122. This is to ignore however that the subject matter of any "medical dispute" would have to have been the claimant's rights under s 66, which had been abolished the day before the letter of 28 June 2001 making the respondent's s 66 offer was sent by the filing of the Statement of Claim on 27 June 2001, which constituted an election under s 151A of the Act not to receive s 66 compensation. Even if it be argued (wrongly in my view) that at that time a dispute nevertheless existed because the Statement of Claim had not yet been served on the respondent, so it was not then aware of the claimant's election, it was so aware after service of the Statement of Claim on 5 July 2001, and certainly by 16 July 2001 when it filed the application for a medical panel presently in question. 17. It seems to me in these circumstances that I should accede to Mr Harris's argument which is, how can there be a "medical dispute" within s 122 when the subject matter of that dispute, "the worker's condition" within subpar (a), had ceased to be relevant because the claimant had lost her s 66 rights by election under s 151A by the time of filing of the application for medical panel? 18. In case there is any doubt that the expression "the worker's condition" in s 122(1) refers to any s 66 impairment or loss the worker may allege, such doubt is answered by the fact that the application for medical panel, Exhibit AA, seeks assessment, as I have said, of the applicant's permanent back impairment and permanent loss of use of the right leg at or above the knee, as indicated by the crosses in the relevant boxes in the particulars annexed to the application for medical panel, Exhibit CC before me. Those questions refer of course to an applicant's right to certain table items of s 66 compensation under the Act. 19. Mr Doak did not specifically say so, but the telephone conversation referred to in par 11 of Mr Saville's affidavit as having occurred on 31 July 2001 between himself and Mr Stephen Walker of Messrs Bartier Perry, in which Mr Walker said that the outcome of a medical panel was relevant to common law thresholds under s 151G and s 151H of the Act, makes it clear that the respondent's purpose in seeking a medical panel is to obtain a determination of the issues raised by those last mentioned sections. S 151G does not refer to s 66 of the Act, but s 151H does, where in subs (1) it provides that "no damages are to be awarded for economic loss unless the injured worker has received a serious injury ."and in subs (2A) it relevantly defines a "serious injury" in subpar (a) as: An injury for which the compensation otherwise payable under s 66 for the loss or losses resulting from that injury, is, in the opinion of the Court, not less than 25 per cent of the maximum amount from time to time referred to in s 66(1). 20. The unvarnished submission of Mr Doak therefore is effectively that in any case where a defendant/employer is faced with a claim for common law damages in respect of an injury within the meaning of the Act, it may seek a medical panel under s 122 of the WIM Act to determine the issue raised by s 151H(2A) or, in respect of injuries received before the commencement of Sch 2(2) of the Workers Compensation (Benefits) Amendment Act 1991, the issue raised by s 151H(2). Intuitively one recoils from the suggestion that issues raised by a section in respect of which this Court does not have jurisdiction, i.e. questions of common law damages to which s 151H of the Act relates, should be decided by the processes of this Court by application for medical panel. 21. The question is not to be answered in that simple way, however, but is rather to be resolved, I think, by asking whether a "medical dispute" within the meaning of s 122 of the WIM Act exists in these circumstances. I do not think one does, because I think the words "the worker's condition" in subpar (a) of the definition of "medical dispute" in s 122(1) clearly refer to permanent impairment or loss or any other condition compensable under s 66 of the Act, just as the expression "the worker's fitness for employment" in subpar (b) of the definition refers in my opinion solely to issues of incapacity for work insofar as they are raised by ss 36, 37, 38 and 40 of the Act for purposes of determining weekly compensation. 22. To give the expression "the worker's condition" in s 122(1) such a wide import as the respondent suggests would be to suggest that the mechanism of s 122 of the WIM Act could be employed to resolve disagreements as to the worker's condition relevant only for purposes quite beyond the jurisdiction of this Court, noting that the WIM Act regulates only procedure in this Court and not of any other court invested with common law jurisdiction (see below). That seems to me to be an unlikely result and the authorities are eloquent as to statutes not being given unjust or capricious consequences unless the language employed is intractable (see for example Tickle Industries Pty Ltd v Hann (1973) 130 CLR 321 at 331 per Barwick CJ, a case decided in a workers compensation context). 23. In this connection, the fact that s 122 is contained in Division 7 of Part 2 of the WIM Act, which is headed "Claims and Proceedings" and which otherwise contains Division 6 headed "Proceedings before the Compensation Court", and the fact that s 122 provides that an application for medical panel be made to the Registrar of the Compensation Court itself, and not, for example, to the WorkCover Authority, provides in my opinion a strong indication that "medical dispute" in s 122 refers only to a dispute as to the worker's condition relevant to his or her s 66 rights created by the Act, and not to his or her common law rights which, though regulated and limited by the Act, are not a creature of it. Were the s 122 procedure available in common law actions to which Part 5 of the Act, headed "Common Law Remedies", applies, one would have expected to find mechanism for such availability in that Part, and there is none, nor is there in s 122 itself any indication that a "medical dispute" about "the worker's condition" may relate to compensation "otherwise payable under s 66" within s 151H(2A)(a). 24. In any event, it may be doubted whether a s 122 panel certificate in this case would bind a worker or employer in common law proceedings in any event, at least in relation to back impairment, because s 151H(2A)(a) quoted above depends for its operation on "the opinion of the Court" (i.e. that invested with common law jurisdiction) as to compensation otherwise payable under s 66 being less than 25 per cent of the maximum, and s 122(6) expressly denies conclusive effect to a medical panel certificate as to, inter alia, back impairment (see subpara (b)(iv)), but not, it must be added, to one as to loss of use of a leg at or above the knee. 25. Another difficulty for the respondent that occurs to me is that if the claimant simply refused to attend a medical panel examination if convened under s 122, the sanction against such refusal in s 122(11) would only involve suspension of her "right to receive compensation under the Act with respect to the injury" (subpara (a) of the subsection) or her "right to receive weekly payments" (subpara (b)). I observe in passing that the "or" between the subparagraphs may be disjunctive, and this suggests that the wording of subpara (a) refers only to s 66 compensation, and that that right alone (which the claimant has in any event already lost as a result of her s 151A election) would be suspended on refusal to attend a panel resulting from a "medical dispute" under subs (1) about "the worker's condition" (as here) and not one as to "the worker's fitness for employment". That was not argued here and it is unnecessary to decide it. One way or the other, however, the claimant's right to common law damages would not be suspended if she simply refused to attend a panel if convened. 26. As I have said, it is my view that Mr Harris's argument that no "medical dispute" within s 122(1) of the WIM Act existed at the time the application for medical panel was filed by the respondent, nor now exists, should be acceded to, and that such application ought therefore be struck out, and I so order. 27. The claimant should have her costs of this summons including counsel's fees as requested on a motion basis on the highest scale and a fee for conference, such having been held this morning, according to Mr Harris, and being necessary in my view for the purpose of proper preparation of the claimant's argument on this summons. Mr J M Harris instructed by Saville & Walkom appeared for the applicant Mr F J Doak appeared for the respondent.