Primrose v Page & Anor [2009] ACTSC 132 (9 October 2009)

Last Updated: 26 October 2009

SHARYN LEE PRIMROSE v WENDY J PAGE & ANOR
[2009] ACTSC 132 (9 October 2009)

Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) ss 5, 11, 14, 16, 19, 48, 50, 53, 54, 61
Workmen’s Compensation Ordinance 1949-1968 (NT)
Freedom of Information Act 1982 (Commonwealth)
Administrative Decisions (Judicial Review) Act 1977 (Commonwealth)
Judiciary Act 1903 (Commonwealth)
Workers Compensation Act 1987 (NSW) s 151Z
Motor Accidents Compensation Act 1999 (NSW)
Court Procedures Rules 2006 Div 2.15.3

Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321
Behan v Australian Telecommunications Corporation [1990] FCA 502; (1990) 99 ALR 79

Telstra Corporation Ltd v Barrow (1994) 19 AAR 532

Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126
Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1
Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303
Tamerji v Rhee [2008] NSWCA 314

STATUTORY INTERPRETATION – Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) – plaintiff claiming damages for personal injury from tortfeasor – plaintiff previously received compensation under Act – dispute as to causal connection between tort and impairment – whether open to Court to make declaration as to amount of compensation required to be repaid under section 48

PRACTICE and PROCEDURE – Court Procedures Rules 2006 Division 2.15.3 – circumstances in which Court will determine preliminary question of law

No. SC 35 of 2007

Judge: Master Harper
Supreme Court of the ACT
Date: 9 October 2009

IN THE SUPREME COURT OF THE )
) No. SC 35 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHARYN LEE PRIMROSE

Plaintiff

AND: WENDY J PAGE

First Defendant

COMCARE

Second Defendant

ORDER

Judge: Master Harper
Date: 9 October 2009
Place: Canberra

THE COURT ORDERS THAT:

The question asked in the statement of preliminary point be answered in the negative.

1. This action commenced as a conventional claim for damages for personal injury arising out of a motor vehicle collision. The collision happened on 11 February 2004 in Canberra Avenue, Griffith. The defendant ran into the back of the plaintiff’s car while it was stopped in traffic.
2. The plaintiff was on her way home from work. She worked as a dental technician with ACT Community Care, a position in the ACT Public Service. She was an employee as defined in section 5 of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) (The SRC Act) and was entitled to claim benefits from Comcare.
3. Section 14 of the SRC Act provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in incapacity for work. By section 16, Comcare is liable to pay compensation of such amount as Comcare determines to be appropriate in respect of the cost of medical treatment obtained in relation to the injury. Section 19 makes Comcare liable to pay an employee who is incapacitated for work an amount of compensation calculated by reference to a statutory formula.
4. Section 53 makes the application of the Act in relation to an injury to an employee dependent on written notice of the injury being given to Comcare as soon as practicable. Section 54 provides that compensation is not payable under the Act unless the claimant lodges with Comcare a written claim in an approved form, accompanied by a medical certificate which is also to be in an approved form.
5. The plaintiff completed a Comcare claim form on 17 February 2004. She described her compensable injury as “overuse syndrome plus car accident”. The injured body parts were said to be her neck, upper back and lower back. She said she had first sought medical treatment for the injury in about May 2003 from Dr Mark Strelnikow and Dr Richard Rowe. In answer to the question “When were you injured or when did you first notice you were ill?” she wrote “Car accident 11 February 2004 5.25 pm”. A further question asked what started the chain of events that led to her injury. She completed this “Lack of recommended modification needed in work environment – suggested by GP in approx June 03 and physiotherapist July 03 / rear end collision Feb 04.” The next question asked what action, exposure or event happened to cause her injury. She completed this “None – structuring of appointment book resulting in large blocks of operative dentistry being carried out on small children increasing strain on neck and back / rear end collision”. The next question asked what actually injured her. Her response was “Overuse in combination with car accident”. A later question asked whether her injury happened while she was travelling to, from or for work. She initially ticked the “No” box but changed this to “Yes” and added “It was exacerbated by car accident”. She said that she was travelling from work to an appointment with a chiropractor for neck and back problems.
6. The claim form was accompanied by four medical certificates signed by Dr Strelnikow. The earlier two were not on the Comcare prescribed form but the later two were. They certified that the plaintiff was unfit for work for various periods. The certificates on Comcare forms stated that Dr Strelnikow had examined the plaintiff “in relation to the injury stated as occurring on 11.2.04”. The injury was described as “soft tissue injury cervical / thoracic / lumbar spine”. On the first of the forms, dated 23 February 2004, Dr Strelnikow also noted pre-existing work-related back symptoms. The next certificate, dated 1 March 2004, referred only to the injury of 11 February, and no longer mentioned anything about pre-existing factors. This was the pattern for later certificates, with one anomalous exception to which I shall refer.
7. The claim form was received by Comcare on 24 March 2004. As required by section 61 of the Act, Comcare served on the plaintiff a notice in writing setting out the terms of and the reasons for its determination, with a statement to the effect that, if dissatisfied, she could request a reconsideration. The determination related only to the motor vehicle accident of 11 February 2004, and accepted neck sprain, thoracic sprain and lumbar sprain as an injury or injuries arising out of or in the course of her employment. The statement of reasons included a paragraph in the following terms:
New Claim
I note you are also claiming compensation for an overuse injury which you state is work related. If you wish to claim for this condition you will need to complete “Claim for Workers’ Compensation” and provide medical evidence to support your claim. Please note the medical evidence should be an original and consist of precise diagnosis and the relationship to your employment. Comcare will advise you of the decision in due course.
8. On 13 April 2004, Comcare wrote to the plaintiff noting that she might be able to claim damages from a negligent third party. If she recovered damages, she would be obliged to notify Comcare. She was informed that section 48 of the Act allowed Comcare to recover from her either the total amount of compensation Comcare had paid or the amount of damages, whichever was the less, and that no further compensation would be payable after the recovery of damages.
9. The plaintiff did not seek reconsideration of the determination, nor did she lodge a further claim form or medical evidence about her 2003 injury. It is apparent from the Comcare file that her employer had received a medical certificate (not on the prescribed Comcare form) signed by Dr Strelnikow and certifying that the plaintiff was unfit for work on 16 March 2003. The doctor had handwritten a note reading “I feel this problem is related to work conditions which need modification to avoid ongoing problems.” The records also include what appears to be an internal ACT Health application for leave for the period from 2.30pm to 4.51pm on 16 June 2003, signed by the plaintiff on the following day. I infer that the plaintiff took the afternoon off work on 16 June 2003 and saw Dr Strelnikow, who gave her the certificate which she provided to her employer the following day. I also infer that the afternoon off was treated as sick leave and that no Comcare claim was made about it at the time. There was no evidence advanced of any other or time off work between 16 June 2003 and the car accident.
10. After the car accident, the plaintiff continued to provide Comcare with medical certificates from Dr Strelnikow’s practice, and accounts for treatment. The treatment expenses were paid by Comcare, and from time to time the plaintiff was paid incapacity payments for certified absences from work. All of the payments were made under claim number 00826591/02. The plaintiff had had a previous Comcare claim, in relation to an accident in October 2002, which had been allocated claim number 00826591/01. I infer that Comcare’s practice is to allocate a number to a claimant, and to retain that number for the claimant, numbering later separate claims in the manner indicated. This is consistent with the fact that the plaintiff made a claim for Comcare benefits in January 2007 which was allocated claim number 826591/3, although ultimately refused. The 2007 claim was in respect of stress with some accompanying physical symptoms said to result from sexual harassment and intimidation by fellow employees.
11. All of the medical certificates after the motor accident until January 2007 were completed as consequent on the motor accident. After that date, some certificates were based on the stress claim whilst others related to the motor accident. The last medical certificate related to the motor accident in evidence which I have been able to identify was dated 5 April 2007, and the last letter from Comcare to the plaintiff in evidence, confirming approval of payments of amounts claimed, is dated 8 May 2007. A list of payments made by Comcare under the claim number 00826591/02, printed on 25 February 2009, shows payments of expenses throughout 2007 and up to 27 June 2008, and incapacity payments up to 27 October 2006.
12. The plaintiff instructed her present solicitors to act on her behalf in a claim for damages against the present defendant in December 2006. In January 2007, the present action was commenced in the plaintiff’s name by solicitors instructed by Comcare, a course available under section 50 of the Act. In July 2007 the plaintiff’s solicitors took over the conduct of the action from the solicitors who had been instructed by Comcare.
13. In October 2008 the plaintiff’s solicitors applied for an order that Comcare be joined as a defendant. The application was supported by an affidavit by Ms Deborah Rolfe. Ms Rolfe set out the history of the matter. She said that at the time of the car accident, “the plaintiff was driving from her work to attend a chiropractor who had been treating her for neck and back problems which had been ongoing since at least mid-2003.” It is not clear whether the plaintiff had been seeing the chiropractor since mid-2003, or indeed whether the plaintiff had seen the chiropractor at all before the car accident, and there is no other evidence to assist on this point, although there is in evidence a report by a physiotherapist who saw the plaintiff on 25 June 2003 with complaints of cervical, thoracic and lumbar pain, and other related symptoms. He thought the plaintiff had early signs of occupational overuse syndrome and that if adjustments were not made in her workplace her condition would worsen.
14. In January 2007 the plaintiff was seen by an occupational physician, Dr Virginia Pascall, at the request of the solicitors for the defendant. Dr Pascall took a detailed history, conducted an examination, and provided the defendant’s solicitors with a seventeen-page report. She expressed the opinion that the plaintiff’s symptoms by September 2004 were more probably than not due to work practices and work equipment, and not to the motor accident. She noted that the last record in the physiotherapy notes of any symptoms that could be attributed to the motor accident were in June 2004. Her opinion was that the symptoms caused by the accident had persisted in some degree until June 2004, but that the effects of the motor accident had ceased within six months of its occurrence.
15. On 13 March 2009 I ordered, with the consent of the plaintiff, the defendant and Comcare, that Comcare be made a defendant. I gave leave to file an amended originating claim and statement of claim and ordered that the plaintiff’s entitlement to relief in the form sought against Comcare be determined as a preliminary point of law.
16. The pleadings are now closed. The parties have asked that the Court determine, as a preliminary point of law, whether the Court has power to make a declaration that the amount repayable by the plaintiff to Comcare based on the Court’s findings concerning the nature, extent and duration of the plaintiff’s injuries, is a different amount from the amount paid by Comcare to the plaintiff and on her behalf pursuant to its determinations under the SRC Act (being an amount of $69,130.53 at 14 April 2009). The course is available under Division 2.15.3 of the Court Procedures Rules 2006.
17. The plaintiff’s concern is that Comcare has attributed all of the payments it has made since the date of the motor accident to the claim in respect of that accident. If, on the hearing of the present action, Dr Pascall’s opinion is accepted, the plaintiff cannot expect to recover treatment expenses or loss of earnings after June 2004. But if the preliminary point is decided in Comcare’s favour, she will have to pay all of those expenses back to Comcare out of her damages. Indeed, her entire award of damages may not reach the amount paid out by Comcare (although in that event her liability to repay Comcare would be limited to the total amount of her damages). Senior counsel for the plaintiff suggests that this would represent a windfall to Comcare, which would be recovering from the plaintiff’s damages arising out of the motor accident amounts it had paid which would have been found to have had nothing to do with the motor accident.
18. Senior counsel for Comcare submits that there would be no windfall, because Comcare would be recovering only payments which it had determined at the time of payment were related to the motor accident, and that regardless of abstract notions of fairness, Comcare’s right to recovery was conferred by the statute, which must be construed in accordance with decided cases and upon proper principles of statutory interpretation.
19. Senior counsel for the plaintiff submits that the claim form submitted to Comcare by the plaintiff after the motor accident should be read as a composite claim form relating to two separate injuries, the first being the 2003 overuse injury and the second being the injury sustained in the motor accident. Comcare had failed to deal with the claim insofar as it related to the overuse injury. The determination of April 2004 did not amount to a rejection of the overuse claim, but rather a refusal to deal with it immediately. There had never been a determination in respect of the overuse injury. Section 48 of the SRC Act was intended to prevent double recovery by an injured worker. It was not intended to provide a means for Comcare to recover compensation payments which had been made in respect of a different injury from that for which damages had been recovered. If the Court, on the hearing of the action, found on the facts that the plaintiff had made a complete recovery from the effects of the motor accident within six months, it would be unconscionable for the plaintiff to be required to repay to Comcare payments it had made to her and on her behalf outside that period, because the Court would have found that those payments were unrelated to her motor accident injuries. Although counsel did not spell the submission out in so many words, it would seem to follow that the payments must have been made in respect of the 2003 overuse injury, of which the motor accident injury must have been found to have been no more than a temporary exacerbation.
20. It is, of course, overly simplistic to assume that there are only two possible sets of factual findings which might be made by the Court on the hearing of the action. It is entirely conceivable that the Court will arrive at findings of fact which do not accord with either the plaintiff’s case or the first defendant’s case, but fall somewhere between. Senior counsel for Comcare, however, submits that whatever findings the Court ultimately makes as to the facts, if the plaintiff recovers any damages against the first defendant she will be obliged to repay Comcare in respect of all the payments it has made pursuant to its determination or determinations related to the car accident claim, up to the limit of those damages. Hence it is appropriate to determine that issue as a preliminary question of law without waiting for the findings of fact.
21. Senior counsel for Comcare notes that no court has ever made a declaration such as is presently sought, and submits that this is not surprising, the SRC Act being a code governing the payment of compensation “in respect of an injury” sustained by a Commonwealth or ACT employee in the course of her employment resulting in incapacity for work or impairment. The amount repayable under section 48 is the amount of compensation previously paid to the employee in respect of the injury. Section 48 leaves no room for a Court to declare otherwise.
22. The applicable parts of the section are as follows:
48 Compensation not payable where damages recovered
(1) This section applies where:
(a) an employee recovers damages in respect of an injury to the employee . . . being an injury . . . in respect of which compensation is payable under this Act;
. . .
(3) If, before the recovery of the damages by . . . the employee . . . any compensation under this Act was paid to, or for the benefit of, the employee in respect of the injury . . . the employee . . . is liable to pay to Comcare an amount equal to:
(a) the amount of that compensation; or
(b) the amount of the damages;
whichever is less.
(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, . . . after the date on which the damages were recovered by the employee . . .
. . .
(7) Where an employee, . . . establishes to the satisfaction of Comcare that a part of the damages referred to in subsection (1) did not relate to an injury . . . in respect of which compensation is payable under this Act, subsection (3) applies in relation to that employee . . . as if the amount of the damages were an amount equal to so much of the amount of the damages as did relate to an injury . . . in respect of which compensation is payable under this Act.
23. Section 51 (Payment of damages by persons to Comcare) authorises Comcare to give a notice in writing to a person who appears to be liable to pay damages to an employee in respect of an injury in respect of which an amount of compensation has been paid under the Act, requiring the person to pay to Comcare on settlement of or judgment in the claim so much of the amount of the damages as does not exceed the amount that would be payable by the employee to Comcare under section 48 if the damages had been paid to the employee. The section authorises Comcare to give a similar notice to a person who has agreed to pay damages, or against whom damages have been awarded. The payment of an amount to Comcare in accordance with the section is a discharge of the liability of the person to the employee, and also of any liability of the employee to Comcare under section 48.
24. Section 11 is also submitted by senior counsel for Comcare to be relevant to the determination of the point of law. That section is in the following terms:

11 Liability of relevant authority

The liability of a relevant authority to pay compensation to a person under this Act is the liability of that authority to pay to the person such amount or amounts as are determined by that authority to be payable to the person under this Act.

Comcare is a relevant authority for the purposes of the section. Counsel submits that it would be inconsistent with the section for this Court to declare that some amount is payable to Comcare under section 48 other than the amount or amounts which were determined by Comcare to be payable.

25. I was referred by counsel to a number of decided cases. None dealt precisely with the point which arises for decision on the present application. Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321, in which the High Court reversed a decision of the Supreme Court of the Northern Territory, involved the construction of a section of the Workmen’s Compensation Ordinance 1949-1968 of that Territory in comparable but not identical terms to section 48 of the SRC Act. There was no dispute between the parties about the amount which had been paid out by the workers’ compensation insurer and was claimed from the tortfeasor.
26. In Behan v Australian Telecommunications Corporation [1990] FCA 502; (1990) 99 ALR 79, Lockhart J, in holding that it was not permissible for a Commonwealth instrumentality to “settle” a Comcare claim with an employee for a lump sum, said that what is now the SRC Act provided an elaborate and detailed code governing the right of employees to compensation and the obligation of the Commonwealth or its authorities to pay it. It was inconsistent with the legislation for the Commonwealth and its employees to contract out of the legislation other than as specifically provided by the legislation itself. The obligations of the Commonwealth and its authorities, and the rights and liabilities of employer and employee, were to be found within the four corners of the Act. The Commonwealth could not depart from the statutory code and adopt a course which would impose a charge on the Commonwealth revenue outside the legislation.
27. Telstra Corporation Ltd v Barrow [1994] FCA 1141; (1994) 19 AAR 523, a decision of Carr J in the Federal Court of Australia, raised a somewhat different issue to the present case. The employee had been injured in a car accident and had recovered damages from the tortfeasor. Although his claim had included particulars of a neck injury, the trial judge had held that the neck symptoms were in no way connected with the car accident and were not to be taken into account in the assessment of damages. The employee subsequently lodged a workers’ compensation claim for neck symptoms. A disc protrusion in the cervical spine was identified radiologically, and the Administrative Appeals Tribunal, altering a Comcare decision, found the neck injury had been caused by the car accident. The AAT substituted a determination that the employer was liable to pay compensation for aggravation of cervical spondylosis caused by both the employment and the car accident. Carr J held that the decision of the Tribunal was correct notwithstanding section 48(4) of the SRC Act (set out above), because the plaintiff had not recovered damages for the neck injury.
28. Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 was a decision about the application of Commonwealth freedom of information legislation, not about Comcare or personal injury. It was cited by senior counsel for the plaintiff because the High Court, in a single judgment (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) mentioned the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakeably. The Freedom of Information Act 1982 (Commonwealth) was not to be interpreted as redefining the jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) or the Judiciary Act 1903 (Commonwealth). But a closer reading of the decision makes it clear that their Honours were talking about the issue of implied repeal of an earlier statutory provision by a later one. Their Honours cited a passage from the judgment of Gaudron J in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, in which her Honour said at p17:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other . . .
29. There is no suggestion in the present case that anything in the SRC Act effected an implied repeal of any earlier statutory provision conferring jurisdiction on this Court.
30. Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303 was a decision of the NSW Court of Appeal (Beazley, Hodgson and Santow JJA) which dealt with the operation of sections of the SRC Act not relevant for the purposes of the present action. A Telstra employee had made an unsuccessful claim under the SRC Act and had subsequently sued Telstra for damages under the general law in the District Court of New South Wales. The Court of Appeal held that on a proper reading of the provisions of the SRC Act this was impermissible. Beazley JA said at para 45 that where there had been a determination by a relevant authority under the SRC Act, it was not open to the authority to challenge the determination in a common law claim, nor could an employee circumvent such a determination by seeking to have the court which was determining the common law matter determine the SRC Act issue again for itself.
31. Tamerji v Rhee [2008] NSWCA 314 (Campbell JA, with whom Beazley and Ipp JJA concurred) dealt with a dispute about the amount required to be repaid by an employee out of his common law damages to his employer’s workers’ compensation insurer. The position was governed by section 151Z of the Workers Compensation Act 1987 (NSW), a section apparently intended to have the same general effect as section 48 of the SRC Act, though differently worded and with some substantive differences in the provisions. The employee’s common law action had gone to trial and judgment in the NSW District Court, and the trial judge had made findings as to the various components of the award. The general law as to the assessment of damages for personal injury in New South Wales had been modified in various relevant respects by the Motor Accidents Compensation Act 1999. The workers’ compensation insurer had made payments of $192,803.19. The award of damages to the plaintiff in the District Court was $252,536.00. This included amounts identified as referable to future economic loss and future treatment expenses. Section 151Z of the Workers Compensation Act provided in specific terms that a worker was not liable to repay an insurer or employer out of damages awarded for such future loss. This left damages for past economic loss, treatment expenses and domestic assistance of $100,555.00. The employee accepted that he was obliged to repay an amount equal to all of the sum allowed in respect of past economic loss, but submitted that he was obliged to refund to the insurer in respect of past treatment expenses only an amount equal to the treatment expenses paid by the insurer, an amount some $2,650.00 less than had been allowed for past treatment expenses in the common law proceedings. Campbell JA arrived at the view that the effect of section 151Z was that “whenever a worker recovers any amount of compensation under the Workers Compensation Act for an injury, and later recovers damages in respect of that injury from some person other than the employer . . . the total amount of damages that the worker recovers is a fund from which the worker is liable to repay the total amount of compensation . . . paid in respect of the injury.” Unlike in the present case, the parties accepted that all of the payments made by the workers’ compensation insurer related to the injury for which the worker had recovered damages. Campbell JA did not accept the worker’s submission that the decision amounted to an unjust or capricious result. The intention of the legislation was that a person who received compensation and damages in respect of the same injury did not ultimately recover any greater sum than the amount of the damages awarded. The practical operation of section 151Z was that the amount of money the worker ultimately received was the greater of the amount of compensation paid and the amount of damages awarded. His Honour saw nothing unjust or capricious in that outcome.
32. In the present case, I prefer the interpretation of section 48 of the SRC Act urged upon me by senior counsel for the defendant. It is apparent from the documentation on the Comcare file that Comcare determined all payments made to the plaintiff or on her behalf after the motor accident as payable in respect of the injury suffered by the plaintiff in the motor accident. True it is that the plaintiff, in her claim form, made an attempt to combine the motor accident injury with an earlier workplace injury. In my view she did not succeed in that endeavour in relation to the earlier injury. Section 54 of the SRC Act required her to lodge a written claim in respect of the earlier injury in a form approved by Comcare, and to provide a certificate by a medical practitioner, also in an approved form, supporting the claim. The lack of a supporting certificate by a medical practitioner was pointed out to her immediately. I am not satisfied that she ever provided one. The medical certificate completed by Dr Strelnikow in relation to the work absence on the afternoon of 16 June 2003 was not a certificate in a form approved by Comcare, and it was not capable of supporting a claim for compensation in respect of any injury at that time. The certificate did not describe the injury or its circumstances, or say anything about treatment. In any event, the certificate was clearly prepared for the purpose of a claim for sick leave for a single afternoon absence from work.
33. Thus the position is that the plaintiff, although told by Comcare what she needed to do to pursue a compensation claim for her overuse injury, never took any steps to do so. She continued to furnish Comcare with medical certificates which related her incapacity to the motor accident. The evidence before me on the application did not extend to other expert specialist medical opinion as to the causation issues dealt with by Dr Pascall. It is nevertheless clear enough that it only became apparent to the plaintiff and her lawyers that there might be a difficulty with causation when they were provided with a copy of Dr Pascall’s report. I can do no more than speculate as to whether the plaintiff might have been able to obtain medical support for the conclusion that the amounts paid by Comcare since mid-2004 were related to her 2003 overuse injury. Her difficulty is that not only were no certificates provided to Comcare supporting such a conclusion, but that on the contrary, certificates were provided expressing the expert opinion that her impairment and treatment were caused by the motor accident.
34. On the facts of this case I am satisfied that Comcare intentionally made all the payments in contention as payments in respect of the injury suffered by the plaintiff in the motor accident. The only way available to the plaintiff to challenge Comcare’s determinations in that regard would be via the reconsideration and review mechanisms provided by the SRC Act. A court of general jurisdiction given the task of deciding the plaintiff’s claim for damages against the tortfeasor responsible for the motor accident has no power to make the declaration sought by the plaintiff against Comcare as second defendant in the amended statement of claim. The question asked in the statement of preliminary point must be answered in the negative.
35. I shall hear the parties as to the consequential orders and directions which flow from this, and as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 9 October 2009

Counsel for the plaintiff: Mr RL Crowe SC
Solicitors for the plaintiff: Maliganis Edwards Johnson
Counsel for the first defendant: Mr AR Muller
Solicitors for the first defendant: Moray & Agnew
Counsel for the second defendant: Mr TM Howe QC
Solicitors for the second defendant: Minter Ellison
Date of hearing: 15 April 2009
Date of judgment: 9 October 2009