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NORTON ROSE FULBRiGHT
Norton Rose Fulbright Australia
ABN 32 720 868 049
Level15, RAGV Tower
485 Bourke Street
MELBOURNE VIC 3000
AUSTRALIA
Tel +61 3 8686 6000
Fax +61 3 8686 6505
GPO Box 4592, Melbourne VIC 3001
DX 445 Melbourne
norionrosefulbright. coin
Inquiry into aspects of the Wrongs Act 1958
Victorian Competition and Efficiency Commission
GPO Box 4379
MELBOURNE VIC 3001.
Norton Rose Fulbright Australia
Response to Issues Paper
September 2013
Contacts:
Nicole Wearne
Ganga Narayanan
Partners
Insurance Group
Norton Rose Fulbright
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Norton Rose Fulbhght Australia is a law firm as defined in tile Legal Profession Acts of Ihe Australian states and territory in which it practises.
Norton Rose Ful, righlAusl, ata. Norton Rose Fuibrighi LLP* Norton Rose Fulbright Canada LLP. Norton Rose Fulbrigh! Soulh Africa lineorporated as Deneys Reltz Incl and
Fulbright & Jaworski LLP. each of chich is a separate legal entity. are members o1 Norton Rose Fulbrighl Verein. a Swiss Verein. Dejails aleach entity. with certain regulatory
information. are at notion rosefulbright. coin. Norton Rose Fulbrigh! Vere;n helps coord:naie the activities o11he members but does noiiisellprovide legal services to clients
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NORTON ROSE FULBRiGHT
Background
I.I
We refer to the Victorian Competition and Efficiency Commission's (Commission) Inquiry into
Aspects of the Wrongs Act1958 (Inquiry) and the callfor submissions in the Issue Paper released
in July 2013.
I .2
We acknowledge the Commission's Terms of Reference and the Inquiry's overarching aim to identify
and make recommendations relating to any anomalies, in equities orinconsistencies arising from the
operation of the Wrongs Act 1958 (Act).
I .3
The questions raised in the Issues Paper and the matters identified by the Commission for further
consideration are apposite and correctly reflectthe primary issues for discussion.
1.4
However, we also wish to draw to the Commission's attention several additional matters that we
consider relevant to the Inquiry and, that in our experience, expose anomalies, inequities and
possible inconsistencies in the operation of the Act,
I .5
Norton Rose Fulbright maintains a significant personal injuries practice both in Victoria and
nationally. It represents the interests of insurers and self insured clients in a wide range of lingious
contexts and manages a high volume of personal injuries matters in allurisdictions. The nature of
our practice provides us with significant insight into the day"to-day operation of the Act, case
management of personal injuries claims and the wider concerns of the insurance industry. Norton
Rose Fulbright and its predecessorfirms have been significant!y involved in Part VBA tort reform
activities and the Standing Committee on the Wrongs Act 1958.
I .6
We wish to raise three particular issues forthe Commission to consider in the course of its Inquiry.
These are:
(1) The timing of Certificates of Assessment;
(2) Providing Prescribed!nformation;and
(3) The implicationsofacer!ificateformultiple respondents.
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Timing of Certificates of Assessment
2.1
The Act provides a threshold requirement for recovery of damages for nori-economic loss. Under
section 28LE of the Act, a claimant must demonstrate that he or she has suffered a "significant
injury. " Whether an injury can be regarded as significant is assessed by an approved medical
practitioner or by the Medical Panel under section 28LF. This assessment is documented in a
Certificate of Assessment(Certificate) under section 28LN and must state whether the degree of
impairment satisfies the requisite threshold level.
2.2
A claimant must provide a copy of a Certificate of Assessment to the respondent under section 28LT,
unless that information has already been communicated through other means. By providing the
Certificate to the respondent, the relevant period of limitation under the Limitation of Actions Act
1958 is suspended until either:
(1) a respondentaccepts the assessment in the certificate;
(2) a respondentis deemed to haveacceptedthe assessment;
(3) the expiry of timefor appealing a decision of the Medical Panel; or
(4) afinaldecision is made in relation to the decision of the Medical Panel.
2.3
However, the Act currently fails to specify a time in which the certificate must be served.
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2.4
The service of a Certificate is a prerequisite to the exercise of a respondent's entitlement to refer a
medical question in relation to the assessment to a Medical Panelfor determination under section
28LWE.
2.5
The absence of a requirement of service of a Certificate in a timely way enables a Certificate to be
served at a time of the claimant's choosing. In our experience, it is riot uncommon for a claimant to
provide a respondent with a Certificate after a period of unacceptable delay or at an opportunistic
juncture in a litigated proceeding.
2.6
There is no apparent object or purpose of the Actthatis served, which supports a concept of service
of the Certificate at the claimant's time of choosing.
2.7
A deliberate strategy to late serve a Certificate may result in delay and unnecessary legal costs and
cause prejudice to the respondent or compromise a hearing before the court. From the perspective
of an insurer of liability risks, the service of a Certificate is a prerequisite to an assessment of
damages on an accountable basis. In the absence of a Certificate no entitlement to non-economic
damages exists and this may in turn impact on a prudent insurer's assessment of the value of the
claim made.
2.8
The absence of any provision ensuring a claimant selves a Certificate within a reasonable time
creates significant uncertainty for a respondent. Without a Certificate, a respondent is prejudiced in
the preparation of the case. It stifles the prospects of settlement between parties and can
compromise mediation as a respondent's advisers are unable to make a recommendation that the
proof of injury threshold has been satisfied.
2.9
The service of a Certificate at a time of the claimant's choosing is also inconsistent with the case
management philosophy under the CivilProcedure Act20iO and the overarching obligations of the
parties to the court.
2.10
The absence of a provision in the Act as to timing of service of a Certificate also reveals an
asymmetry in the procedural aspects of the assessment processes of damages for non-economic
loss. Section 28 LW(I) requires a respondent to reply to a Certificate within 60 days of receiving a
copy of the Certificate. A respondent must acknowledge that he or she is the proper respondent to
the claim. A failure to respond deems the respondent to have accepted the assessment.
2.11
We submitthatthe failure to impose any timeframe for service of a Certificate once proceedings are
commenced creates an inconsistency that ought to be considered by the Commission and the
appropriate recommendations made.
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Providing Prescribed information
3.1
Section 28LT requires claimants to serve certain information including the details of any medical
practitioner who has treated the claimant's injury.
3.2
In our experience it is not uncommon for claimants to serve Certificates without:
(1) anyother medical information (including any report authored by the assessor); and/or
(2) the detailsoftreatingmedicalpractitioners.
3.3
These omissions hamper a respondent's ability to gauge whether or not a medical question should
be referred to the Medical Panel.
3.4
There is currently no sanction for a claimant who fails to provide the Prescribed Information. There is
also an absence any effective or equitable recourse to a respondent who receives incomplete
information.
3.5
Arguably, a failure to provide the Prescribed Information means that no proper service of the
Certificate has taken place and the time limits in 28LW are riotinggered. However, in reality a
respondent cannot know whether the reason the information has not been provided is because, for
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example, there has been no medical treatment of the injury or the claimant cannot recallthe details
of the treatment, In the circumstances, a prudent respondent will notfeeljustified in simply assuming
that the time limits for referral do not apply.
3.6
Section 28LT is aimed at quickly and efficiently addressing the issue of whether or not a claimant
seeking to claim general damages meets the necessary threshold to do so. Without sufficient
impetus on claimants to provide fullinformation, the section fails to achieve this aim as respondents,
and in some circumstances, the Medical Panel, cannot make an informed decision aboutthe
claimant's injury,
3.7
Failing to ensure that the claimant serves the Prescribed Information undermines the efficiency of the
Medical Panelreferral process. The Act and Courts have placed the on us on respondents to identify
the "claimed injury"in any medical question referred to the medical panel. !fthe claimant has not
provided details about all aspects of the injury alleged in the claim, the parties risk a decision by the
Medical Panelthatfails to take into account all aspects of the injury.
3.8
We submitthatthis is an in equity that ought to be considered by the Commission and the
appropriate recommendations made.
3.9
The Commission may wish to consider recommendations that involve placing the onus on the
claimant to identify all claimed injuries. For example, the Commission may deem it appropriate to
give consideration to a requirement that the claimant should set out in the Prescribed Information, all
aspects of the "claimed injury" on which the claimant relies in his or her claim that he/she meets the
necessary threshold to claim general damages, regardless of what injuries or sequelae may have
previously been set out in correspondence or pleadings.
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Whether a Certificate can bind Multiple Respondents
4.1
Section 28LWC states that an acceptance (of an impairment assessment) under Division 4 of Part
VBA of the Act does not bind any other respondent to the claim. The effect of the provision is that
each respondent must respond to a certificate of assessment, unless a respondents' claim manager
is appointed under section 28LU.
4.2
In claims involving multiple respondents, this can give rise to the situation where different
respondents have differentresponses to the assessment.
4.3
A regular situation we have experienced arises where one or more respondents acceptthe certificate
of assessment or are deemed to have accepted the assessment by virtue of sub-section 28LW(4),
whilst other respondents refer a medical question in relation to the assessment to a Medical Panel
for determination,
4.4
Where the Medical Panelfinds that the degree of impairment resulting from the injury does not
satisfy the threshold level, this gives rise to the potentially incongruous situation where the claimant
may assert an entitlement to damages for non-economic loss againstthose respondents who
accepted the assessment, butts prevented from asserting an entitlement to damages from noneconomic loss againstthose respondents who referred the matter to the Medical Panel.
4.5
This situation also has the potential to create difficulties in terms of the joint and several liability of
respondents. For example, the claimant could conceivably seek to enforce the entire amount of the
judgment(including any amountfor damages for non-economic loss) againstthe respondent who
failed to refer the assessment to the Medical Panelleaving that respondent unable to recover an
equitable contribution pursuant to s23B Wrongs Act1958 because the loss and damage is notthe
same,
4.6
Similar complexity also arises where the respondents have claims for contribution against each
other, There does not appearto be anything preventing the respondent who accepted the
assessment and who is exposed to a claim for non-economic loss damages from seeking and/or
recovering contribution from those respondents who referred the assessment to the Medical Panel.
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4.7
Another situation which arises in claims involving multiple respondents is where one respondent
refers a medical question in relation to an assessment to a Medical Panel but another respondent
considers there is no merit in doing so.
4.8
Under section 28LW, the later respondent must either:
(1) Acceptthe assessment, in which case the claimant will have an entitlement to claim
damages for non-economic loss from it; or
(2) Refer it to the Medical Panel and share in the costs of doing so, despite its view that there is
no merit in doing so.
4.9
Under section 28LW, the respondent cannot rely on another respondent's referral to the Medical
Panel. In those circumstances, we consider that a prudent respondent will always refer the
assessment to the Medical Panel so as to ensure that it receives the benefit of the Medical Panel's
findings in the eventthatthe claimant is found to not satisfy the threshold level.
4.10
As far as we are aware, these situations have not been dealt with by the Courts.
4.11
Consistent with the principle laid out in section 28LE, a claimant who has been found by the Medical
Panel to not satisfy the threshold level should be prevented from recovering damages for noneconomic loss, regardless of how the respondents to the claim responded to the impairment
assessment, In this regard, section 28LZH provides that a determination by a Medical Panelthatthe
degree of impairment resulting from an injury does or does not satisfy the threshold level must be
accepted by a Court in any proceeding on the claim as a determination of significant injury,
However "claim"is not defined in the Act. It could be the claim againstthe particular respondent
who referred the assessment to the Medical Panel or all claims arising from the injuries assessed by
the Panel.
4.12
This uncertainty is reinforced by section 28LZM, which provides that before the determination of the
claim by a Court, the claimant must file with the Court:
(1) Ifthe claimantintends to rely on a certificate of assessment, a copy of that certificate;
(2) Ifthe claimantintends to rely on the agreement of any respondent to waive the requirement
for an assessment, a copy of that agreement;
(3) if a Medical Panel has made a determination as to the threshold level, a copy of the
certificate of determination of the Medical Panel;
(4) Ifthe respondentis deemed to have accepted an assessment, a statement to that effect.
4.13
Accordingly, ms feasible that in a proceeding, the Court could have before it evidence of one
respondent's agreement that the impairment from the claimant's injuries satisfies the threshold level
and that the claimant is entitled to claim non-economic loss damages and a determination of a
Medical Panel finding that the plaintiff's injuries do not satisfy the threshold level, with the
consequence that the claimantis prevented from claiming non-economic loss damages.
4.14
We consider that the Commission ought to consider recommendations that provide clarity regarding
whether a determination by a Medical Panel applies to all claims arising out of the injuries assessed
by the Panel, regardless against whom the claims are made. Forthe Actto be consistent in this
regard, a determination by the Medical Panelthat a claimant does not satisfy the threshold level
ought to apply to all claims in respect of injuries assessed by the Medical Panel, regardless of
whether or notthe respondents to those claims have referred the assessment to the Panelfor
determination,
4.15
We submitthatthis is an inconsistency that ought to be considered by the Commission and the
appropriate recommendations made.
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We would be pleased to further clarify these submissions or provide any further assistance to the
Commission in its inquiry.
Yours faithfully
at/
NICole Weame
Partner
Ganga Narayanan
Norton Rose Fulbright Australia
Norton Rose Fulbright Australia
ARAC-#20020073-vl
Partner
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