The gateway to serious injury

The gateway to serious injury

Originally published in the Law Institute Journal

The criteria for obtaining the right to sue in Transport Accident Commission claims has been adjusted by the State Government and the process for hearing all serious injury applications has been streamlined by the County Court.

Snapshot

  • The original criteria for a psychiatric serious injury have been reinstated following the repeal of the contentious 2013 amendments.
  • Serious injury applications in the County Court are now streamlined and more expedient.

The gateway to suing for injuries suffered in transport accidents has been constantly changing since the introduction of the Transport Accident Scheme nearly 30 years ago. Refinements have been made by both the legislature and by judicial interpretation.

The hearing of serious injury applications has also varied over that period both in form and duration.

One of the most far reaching amendments to the right to sue for those who had suffered psychiatric injury through a transport injury occurred in 2013. This has now been reversed by the state government through the Transport Accident Amendment Act 2015 (Amending Act).[1]

In a separate recent development, the County Court has issued a practice direction that is anticipated to significantly reduce the duration and cost of serious injury applications.[2]

Background

The Transport Accident Scheme provides that damages at common law can only be awarded to those who have suffered a serious injury . If the injuries are assessed under the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edn) (AMA4) as causing a 30 per cent impairment, there is
an automatic right to sue.[3] If not, the injured person must satisfy a narrative test. One way to satisfy this test is to establish that the injured person has suffered a severe long-term mental or behavioural disturbance or disorder .[4]

The Court of Appeal, when interpreting this phrase, found that the test for serious injury in respect of psychiatric injury was intended to be a stronger test than for other injuries, as the provision required there to be a severe psychiatric condition, which was more than serious .[5]

Attempt to change criteria

In 2013, the then Victorian government further tightened this definition by requiring that an injured person could only be regarded as having a severe long-term mental or behavioural disorder if that person had:

  • a recognised mental illness or disorder continuously for three years
  • been treated by a psychologist, psychiatrist or mental health nurse for three years without any substantial improvement
  • a severe impairment in their relationships, and social or Otherional functioning.[6]

A further major change to the entitlements of those suffering mental injury was the prohibition on a person receiving common law damages where the mental injury or nervous shock was suffered as a result of the tortfeasor's own negligence. This prohibition was extended to where a person was deemed to have committed, or intended to commit, suicide.[7]

Reaction

The state treasurer of the day proclaimed that the change would save the government $30-$35 million.[8] A prominent psychiatrist in the area, Dr Nigel Strauss, agreed with the treasurer, proclaiming that very few people would receive this type of compensation and many who deserved to would miss out.[9]

A perhaps unintended consequence of the change was the additional restrictions which the change made to the rights of emergency workers. As they can suffer psychiatric injury during their work involving transport accidents, they were to be treated more harshly in seeking compensation than psychiatrically injured workers who were not involved in transport accidents.[10]

Emergency workers often attend tragic car accidents that could involve suicide attempts or injury caused by a person's own negligence. The psychological effect on the workers is not determined by how the injuries occurred and so the preclusion from common law damages for these workers was criticised as unfair.[11]

Under the current WorkCover scheme, a person suffering a psychological injury at work is not required to meet these three further criteria that the injured emergency workers faced.

Political responses were numerous as the then Labor opposition vowed to repeal the legislation. Richard Wynne MLA told parliament, The leader of the opposition has indicated that if we have the honour of returning to government in 2014, we will rescind these obnoxious provisions, which by any measure undermine the hard-fought-for common law rights of workers in this state. [12]

Reversal

The Andrews Labor government was elected in 2014. The promised changes were not immediately forthcoming and the Transport Accident Commission (TAC) consequently made determinations refusing serious injury applications based on the restricted criteria. Fortunately, no applications relying on the psychological aspect
of serious injury were heard by the County Court before the amending legislation was passed.

The Transport Accident Amendment Bill 2015 was finally passed by the State Legislative Council on 12 April 2016. It did as was promised and repealed the restrictive mental injury provisions of the 2013 Act.[13] A person was also no longer prohibited from recovering damages in respect of mental injury or nervous shock in circumstances where they were not directly involved or witnessed the transport accident that arose from suicide or another person's own negligence. The now Liberal opposition did not oppose the Bill.[14]

Retrospective

It is of significant importance that the Amending Act ensured there was no black hole in which some people were caught by the previous restrictions before the Act changed. The Amending Act provided that the sections were repealed from the date of their introduction in 2013.[15] Governments are generally loath to introduce retrospective legislation but the Andrews Labor government did not hesitate due to its forthright statements when opposing the original changes.

Additional change

The Amending Act also repealed a power which could have had far reaching consequences for those injured in transport accidents. In response to a Court of Appeal decision in TAC v Serwylo [16] concerning multiple spinal fractures, the 2013 changes provided that the TAC could, with the approval of the appropriate minister, make guidelines regarding the use and application of AMA4.

The percentage impairment from transport accident injuries assessed under AMA4 determines the lump sum which claimants can receive for their permanent impairment[17] and the period during which they receive loss of earning capacity payments, regardless of fault.[18] Where the combined injuries are assessed at 30 per cent or more, common law damages can be awarded if there is negligence.[19]

Depending on the interpretation propounded by the TAC, the entitlements of injured people could have been reduced or abolished without going before parliament. In the parliamentary debate the Member for Essendon, Danny Pearson, MLA said, . . . the key important initiative in this bill is making sure that no future administration can unilaterally make these changes without the scrutiny of parliament .[20]

County Court Practice Note

In December 2015 an important practice note was issued in the Common Law Division of the County Court concerning the operation and management of its case lists.
Authored by O'Neill J, the practice note adjusts many procedures in the Common Law Division in light of the aims of the Civil Procedure Act 2010.[21] Among the most significant changes is the future conduct of serious injury applications in both the TAC and WorkCover jurisdictions.

From the commencement of an application, things will move automatically and expeditiously. One week after a Notice of Appearance has been filed by the defendant, a set of timetabling orders will appear on Court Connect.[22] Orders will not be sent out to practitioners. Practitioners will no longer have to file any documents until the Court Book is filed shortly before the hearing. Affidavits and medical reports are still to be served on the opposing party but the medical reports do not have to be annexed to an affidavit.[23]

Medical reports

In relation to medical reports, the Court has noted that Court Books only need to include recent relevant reports and others may not be admitted into evidence. Subject to the leave of the Court, the only reports that would be admitted into evidence and be in the Court Book are:

  • treating practitioner reports
  • reports of past relevant injuries
  • two medico-legal reports in relation to each injury.[24]

Exchange

The new procedure only permits one round of medical and financial material exchange. It would, however, seem reasonable to exchange later tax returns to a defendant so they cannot be taken by surprise at the hearing. Medical questions in WorkCover applications can still be referred to a medical panel upon order of a judge.[25]

Conduct of hearings

The most significant change practitioners should be aware of is the duration of the hearing. The practice note provides for the following time restrictions:

  • Plaintiff's opening: 20 minutes
  • Defendant's opening: 20 minutes
  • Plaintiff's evidence in chief: brief update only
  • Cross-examination: two hours
  • Plaintiff's closing submission: 30 minutes
  • Defendant's closing submission: 30 minutes [26]

Importantly, the practice note provides that: No witness, other than the plaintiff, will be permitted to be cross- examined, save with the leave of the trial judge .[27]

Comment

For many years, the length of serious injury applications has been a source of congestion in the County Court civil lists. In 1993, the Appeal Division of the Supreme Court in Petkovski v Galletti complained that applications had taken up to five days and that likelihood could not have been contemplated or intended by parliament.[28]

These changes streamline the Serious Injury Court process. It is expected that most applications would be completed within one day. This change should dramatically reduce waiting times for plaintiffs in the Common Law Division of the Court.

With the speed of hearing will come reliance on written reports and affidavits. Judges will not have the benefit of having medical opinions tested by thorough cross- examination without leave having first been obtained.

It will be of considerable interest in the future to see the attitude of the Court of Appeal if a party is refused leave and believes they have been unfairly deprived of a right to cross- examine a witness.

An appendix to the practice note entitled, Facts and Issues To Be Identified in Serious Injury Applications has been included. It is expected that these issues will be addressed by counsel in opening and closing submissions. This is a further refinement which should also accelerate the process through ensuring only relevant issues are canvassed before the Court.

The practice note is the most thorough and detailed direction from the County Court for serious injury applications in TAC and WorkCover claims. It promises to expedite the administration of the schemes significantly.

Expedited Serious Injury List

Where a preliminary application process has been completed with TAC or WorkCover, the Court will allow entry into a newly created Serious Injury Expedited List .[29]

It is anticipated that these applications will be ready to proceed almost immediately. No further material can be served or filed without the leave of the judge.[30] Subpoenas are not permitted and the plaintiff is to be the only witness, except in exceptional circumstances.[31]

The application is anticipated to be allocated a hearing date between 21 and 49 days after a Notice of Appearance and Certificate of Readiness are filed with the Court.[32] Should the relevant authorities embrace this process, it will be a boon for the delivery of justice to the Victorian community.

Future

With the amendments to the TAC mental injury criteria, many delayed serious injury applications will now be heard. The streamlined processes of the County Court will provide personal injury practitioners with a much improved and speedy process in reaching, and where appropriate, passing through the gateway of Serious Injury.

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Michael Lombard is the leader in the transport accident division of Adviceline Injury Lawyers. He is an LIV accredited specialist in personal injury law, former chairman of Law Aid and a member of the LIV Council.

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[1] Passed by the Legislative Assembly on 26 November 2015 and by the Legislative Council on 12 April 2016
[2] County Court Common Law Division Practice Note
[3] Transport Accident Act 1986, s93(3)
[4] Note 3 above, s93(4) and s93(17)
[5] Mobilio v Balliotis [1998] 3 VR 833
[6] Transport Accident Amendment Bill 2013, s27
[7] Note 6 above, s26.
[8] Bendigo Advertiser, 17 October 2013
[9] The Age, 29 October 2013
[10] Accident Compensation Act 1985 and Workplace Injury Rehabilitation and Compensation Act 2013
[11] Parliamentary debates, 30 and 31 October 2013
[12] Hansard, 31 October 2013, p3765
[13] Transport Accident Amendment Act 2013
[14] Hansard 24 November 2015, p4928.
[15] Transport Accident Amendment Act 2015
[16] Note 3 above, s93.
[17] Note 3 above, s47.
[18] Note 3 above, s53 (4) and (5).
[19] [2010] VSC 421.
[20] Hansard 24 November 2015, p4932.
[21] These include hearing and determining cases quickly and cost effectively.
[22] cjep.justice.vic.gov.au; standard orders can be found at www.countycourt.vic.gov.au/damages-and-compensation-list.
[23] PNCL1-2016 paras 62-63.
[24] Note 23 above, para 79.
[25] Note 23 above, para 66.
[26] Note 23 above, paras 82-87.
[27] Note 23 above, para 85.
[28] [1994] 1 VR 436.
[29] Note 23 above, para 88.
[30] Note 23 above, para 91.
[31] Note 23 above, paras 92-93.
[32] Note 23 above, para 89.

 

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