IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE

T02888818

B E T W E E N

KARLY LOWRY

Plaintiff

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TASMAN PACIFIC FOODS (TPF)RESTAURANTS and ANOR.

Defendants

D E C I S I O N

MR B. WRIGHT, MAGISTRATE

Mr. R. Forsyth (instructed by Patrick Robinson and Co) for the Plaintiff

Mr. M. Richards (instructed by Herbert Geer and Rundle) for the Defendants

ACCIDENT COMPENSATION – WEEKLY PAYMENTS OF COMPENSATION – REFERRAL TO MEDICAL PANEL – PROPOSED QUESTIONS AS TO WORK CAPACITY IN PAST – WHETHER VALID MEDICAL QUESTIONS – ACCIDENT COMPENSATION ACT 1985 ss. 5(1), 45

(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS)

LEGAL TRANSCRIPTS PTY LTD

Suite 18, 600 Lonsdale Street, Melbourne – Telephone 9642 0322

D E C I S I O N

In this matter the plaintiff’s claim is for weekly payments of compensation following their termination by way of Notice as at 4 October 2004.

I was informed by counsel that such payments were terminated on the basis at least that any incapacity for work was no longer related to any work injury.

In their defence the defendants have also pleaded that weekly payments are no longer liable to be made after 104 weeks. The defendants seek referral of appropriate medical questions on both aspects.

The plaintiff does not formally oppose the referral or indeed the proposed questions prepared by the defendants. Rather the plaintiff seeks to refer further questions which, broadly speaking, go to the question as to whether the plaintiff had any, and if so what, capacity for work both at 4 October 2004 and as at 30 October 2005 being the apparent 104 week date.

The defendants oppose such questions on the basis that any question as to incapacity in the past is not an appropriate medical question. Having regard to the definitions of “medical question” in s.5(1) and more particularly in sub-definitions (aba)and (abb). Sub-definition (ab) does not appear to be relevant as the reference therein to “extent” relates to degree of incapacity rather than present or past incapacity.

Counsel for the plaintiff states that the Court of Appeal judgment in Kumar v. QBE (2006) VSCA 103 gives support to the proposition that a question as to incapacity in the past is appropriate. However, the relevant passage at paras. 24 to 25 of the judgment of Mandie AJA is not as definite as counsel submits.

At best the reference is ambiguous and is obiter dicta in any event. His Honour simply stated the obvious that the relevant question only asked about work capacity at the time of the referral (similar comments could be made about Ajinvan Pty Ltd v. Fry (2001) VR 650 at para. 15). His Honour Mandie AJA was not stating any principle that a question could be properly addressed as to incapacity for work at some time in the past.

Counsel also referred to a County Court medical panel referral in Szabo v. Integral Furniture(unreported)in which His Honour Judge Coish referred questions “by consent” going to incapacity in the past. I believe that such a consent referral is of limited value to me in making this ruling.

Counsel for the defendants point out that the present tense is used in the possible relevant definitions of “medical question” and in particular (aba) and (abb). Certainly the clear expression in those sub- definitions is that incapacity can only be looked at as at the present date, i.e. the date of the medical panel opinion.

Those provisions, in my belief, should be given a plain English interpretation. As counsel for the plaintiff points out, this causes problemswhen questions of incapacity in the past must also be considered, especially where the arrears of weekly payments go back some considerable time. Those problems are highlighted in such decisions as Kumar v. QBE(supra) as well as Ajinvan Pty Ltd v. Fry (supra).

The question as to whether medical questions going to incapacity in the past can be properly referred to a medical panel has been considered a number of times in the past.

In Metcalfe v. FAI(County Court, Judge Strong, Unreported, delivered 20June 1997) His Honour ruled that medical questions going to specified periods in the past could be properly referred to a medical panel. However, no reasons were stated by His Honour in that decision.

The issue was also canvassed in more detail in Singh-Jhikka v. MMI (County Court, Judge Rendit, unreported, delivered 9 April 1999). In that case the County Court had to consider whether questions of incapacity both pursuant to s.91 “serious injury” (i.e.pursuant to the AMA 2nd edition) and any total and permanent incapacity basis going back more than five years in arrears. The defendant sought to ask questions, inter alia, going to incapacity for work both at the present and in the past. At p.40 of that judgment His Honour Judge Rendit pointed out, and the parties agreed, that any question as to s.91 impairment could only be asked in the present tense. His Honour referred to the judgment of Mr Justice Byrne in Austin v. Amcor(Supreme Court, unreported,delivered 3 April 1998) at p.15 as supporting that proposition.

Parliament may well have taken into account the difficulties in looking at impairment in the past having regard to the various changes in the legislation over the years. There is some logic in having a requirement that a medical panel could only consider the present situation. It may have been seen as being better that the courts should consider past impairment.

Later on at p.48 of the judgment in Singh-Jhikka Judge Rendit merely noted that the parties had agreed that all questions should be asked in the present tense and amended the proposed question accordingly.

It seems to me that there is no difference in the definition of “medical question” on the present tense issue between sub-definition (d) going to impairment and (aba)and (abb).

In those circumstances, I rule that questions going to incapacity in the past are not appropriate for referral to the medical panel. Depending on the medical panel's opinion, it may be necessary for a court to determine questions of the period and degree of incapacity in the past.

However, the Court of Appeal has considered this problem in Ajinvan Pty. LTD. v. Fry(supra)and Kumar v. QBE(supra) and clearly set out principles that should be applied in considering such issues.

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.AS 16/11/06 FTR:1 DISCUSSION

Lowry