Allianz Australia Insurance Limited v Mercer
[2016] TASFC 2
•18 February 2016
[2016] TASFC 2
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Allianz Australia Insurance Limited v Mercer [2016] TASFC 2
PARTIES: ALLIANZ AUSTRALIA INSURANCE LIMITED
v
MERCER, Ivan
FILE NO: 115/2015
JUDGMENT
APPEALED FROM: Mercer v Allianz Australia Insurance Limited (No 3)
[2014] TASSC 69
DELIVERED ON: 18 February 2016
HEARING DATES: 3, 4 June 2015
JUDGMENT OF: Tennent, Porter and Wood JJ
CATCHWORDS:
Limitation of Actions – Limitation of particular actions – Simple contracts, quasi contracts and torts – Tort actions involving personal injuries – Actions for damages in respect of personal injuries to be brought within three years from date of discoverability – Date of discoverability defined as date when plaintiff knew or ought to have known that personal injury had occurred, was attributable to the defendant, and was sufficiently significant to warrant bringing proceedings – Meaning of sufficiently significant to warrant bringing proceedings.
Limitation Act 1974 (Tas), ss 2(1), 5A(3)(a).
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; State ofNew South Wales v Gillett [2012] NSWCA 83, considered.
Aust Dig Limitation of Actions [1024]
Limitation of Actions – Limitation of particular actions – Simple contracts, quasi contracts and torts – Accrual of cause of action and when time begins to run – Torts – Other personal injury cases – Actions against employers – Worker intending to seek damages must lodge an election to claim damages – Worker not to make an election unless degree of permanent impairment agreed by the worker and the employer or determined by a tribunal to be a specified percentage of the whole person – Cause of action does not accrue until degree of permanent impairment agreed or determined – Action to be brought within three years of date of discoverability – Date of discoverability cannot be earlier than the date upon which the cause of action accrues.
Workers Rehabilitation and Compensation Act 1988 (Tas), s 138AB(1) and (2).
Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd (2005) 15 Tas R 88, followed.
Aust Dig Limitation of Actions [1033]
REPRESENTATION:
Counsel:
Appellant: G Rich SC and F Ashworth
Respondent: K E Read SC and R J Phillips
Solicitors:
Appellant: Page Seager
Respondent: Phillips Taglieri
Judgment Number: [2016] TASFC 2
Number of paragraphs: 168
Serial No 2/2016
File No 115/2015
ALLIANZ AUSTRALIA INSURANCE LIMITED v IVAN MERCER
REASONS FOR JUDGMENT FULL COURT
TENNENT J (Dissenting in part)
PORTER J
WOOD J
18 February 2016
Orders of the Court
Appeal allowed.
Respondent's contention on the point of law upheld.
Judgment of Blow CJ in favour of respondent on 22 December 2014 affirmed.
Serial No 2/2016
File No 115/2015
ALLIANZ AUSTRALIA LIMITED v IVAN MERCER
REASONS FOR JUDGMENT FULL COURT
TENNENT J
18 February 2016
I have had the benefit of reading the very detailed reasons for judgment of Porter J in draft form. I agree with his Honour's reasons, conclusions and summary of the facts and law as they appear in pars [27] to [92]. I would also, subject to Mr Mercer's contentions about s 138AB of the Act and the dispute about the appeal being in time, allow the appeal. As to the s 138AB issue, I also agree with Porter J's reasons as they appear in pars [93] to [119]. His Honour thereafter dealt with the question of when there may have been an agreement for the purpose of s 138AB(2). He ultimately concluded that the Chief Justice had not erred when he concluded that any agreement for the purpose of s 138AB(2) did not occur until February 2010. With respect I disagree with Porter J's conclusion in that regard.
At [133] of his draft reasons, Porter J concluded that an agreement for the purpose of s 138AB(2) must involve a "mutual understanding or 'meeting of the minds'" to the effect that any agreement was for the purpose of that section. That is, in effect, that anything done by reference to s 71 could not be sufficient, even if it dealt with the degree of whole person impairment. The parties, at the time of any agreement as to the percentage of whole person impairment, had to be agreeing specifically for the purpose of a s 138AB election, and not otherwise.
Part VI of the Act is entitled "Amount of compensation". Sections 71 and 72 appear in Div 1 of that Part, which is entitled "Basic compensation payable". At the relevant time, s 71 provided for the entitlement of a worker to lump sum compensation by reference to the degree of his or her whole person impairment. A worker was entitled to the maximum lump sum compensation where the worker's whole person impairment was assessed at a percentage of the whole person equal to or greater than 70%. Section 72 then dealt with how an assessment of that whole person impairment was to be carried out.
On the other hand, s 138AB appeared in Pt X entitled "Concurrent rights to compensation and damages". In fact, it appeared in Div 2 of that Part, entitled "Restrictions on award of damages". While it is clear from the structure of the Act that the sections deal with different matters, both ss 71 and 138AB are underpinned by the concept of an assessment of a percentage of whole person impairment, and s 138AB incorporates the requirements of s 72. An assessment of percentage of whole person impairment for the purpose of the application of s 71 is no different from an assessment of percentage whole person impairment for the purpose of s 138AB(2). Both are carried out by reference to s 72. There is nothing in the Act which requires that an assessment for the purpose of s 71 cannot be the same assessment which underpins the making of an election by reference to s 138AB, and, in my view, no logical reason otherwise why the same assessment cannot underpin both sections.
Mr Mercer's solicitors obtained a report in respect of Mr Mercer from neurologist, Professor Richard Stark. In their letter of instruction to Professor Stark dated 12 June 2008, the solicitors sought generally a medico-legal assessment of Mr Mercer. However, more particularly they sought the following:
"Would you please conduct an assessment of the permanent impairment Mr Mercer has suffered and in particular, would you please identify the percentage of whole person impairment he has suffered as a result of the injury sustained on the 11th of March, 2008. Please note in this respect the Tasmanian WorkCover Guidelines to Assessing Permanent Impairment apply which essentially adopt the AMA 4th Edition Guides but subject to some variation. To assist you in understanding the variation that applies under the Tasmanian Guides, we enclose for your information a copy of the entire sections of the Tasmanian Guides which deal with spinal and nervous system impairment."
The Act, s 72, as it read at the relevant time, required an assessment of impairment to be carried out by a medical assessor in accordance with any relevant guidelines issued by the Board or, if there were none, the AMA guides. A medical assessor was defined in the Act to be "a medical practitioner accredited by The Board for the purpose of assessing the degree of a worker's permanent impairment in accordance with section 72 or 73". There was nothing in any of the material provided to the Court which explicitly identified Professor Stark as a medical assessor.
In Professor Stark's report, he said:
"It is now over three months since the accident occurred and there are some improvements occurring. Nevertheless it seems clear that this man has sustained a very severe spinal injury and it is unlikely that there will be major improvements in his lower limb function. He has been aware of some improvement in his left upper limb function but I am not optimistic that fine finger movement will improve significantly.
It is thus highly likely that this man will be permanently disabled and is likely to require permanent use of a wheelchair. It is likely that there will be significant ongoing dysfunction involving his left upper limb and he is also likely to have ongoing problems with bladder and bowel function.
…
4You have asked me to provide an AMA impairment assessment and I note that the Tasmanian workcover guidelines are based upon the AMA 4th Edition guidelines with some specific variations.
You should understand that this man's condition is not yet fully stabilized and of course the guidelines require that injuries be assessed when they are stable. Generally speaking spinal injuries can be assessed either from the DRE method of from the neurological tables and in most cases of spinal injury the neurological tables provide a more precise assessment of impairment. There is however a disadvantage in using the neurological tables at this stage as there is likely to be some improvement in various individual items and the impairment provided now is unlikely to be precisely the same as the final bottom line impairment after stabilisation. By contrast the DRE model assesses categories that have broader definitions and it is very likely that the current DRE impairment will also be the bottom line impairment using this method. Thus it is likely that the bottom line impairment will be at least as great as the current DRE impairment but may be greater when assessed in due course at the time of stabilisation using the neurological impairment tables."
Professor Stark then included tables in his report in which he inserted details of his assessments by reference to both the methods he had referred to. He then said after the first table:
"These impairments are combined and thus the current impairment using the DRE system is 84%."
After the second table, which used neurological tables, he said:
"Using the combined values table this method provides a current impairment rating of 92% WP.
Thus it is possible to say that with regard to the spinal injury the current impairment is 92% WP. It is likely that the bottom line impairment will be at least 84% WP."
Mr Mercer's solicitors sent a copy of that report to Allianz under cover of a letter dated 25 July 2008. That letter relevantly said:
"We refer to the above matter. Given the nature of Mr Mercer's injuries it is apparent that he will have an entitlement pursuant to Section 71 of the Workers Rehabilitation & Compensation Act.
As a result of the above, I arranged for Mr Mercer to be examined and assessed by Professor Richard Stark, consultant neurologist. I enclose a copy of Professor Stark's report and invite you to pay the maximum sum pursuant to Section 71 of the Act, being 369 units. We have calculated the sum payable to be $222,267.15.
…
We note that Professor Stark indicates that Mr Mercer's injuries are not yet stable and stationery. Notwithstanding this, you will also note that Professor Stark states that it is likely that the final permanent impairment will be at least 84%. As this is higher than the percentage impairment specified by Section 71(1)(c) of the Act, the maximum number of units being 379 units, is payable."
As Porter J says at [125] and [126]:
"The letter from Mr Mercer's solicitors dated 25 July 2008 'invited' Allianz to pay the maximum sum pursuant to s 71 of the WRC Act. On 7 August 2008 the solicitor for Allianz told Mr Mercer's solicitor that he was giving advice to Allianz about the s 71 entitlement. He said, 'without prejudice', that although Mr Mercer's condition was not stable and stationary, it seemed almost certain that Mr Mercer would be left with an impairment that entitled him to the maximum payment; 'It may be that Allianz will be prepared to pay it now even though the injury is not stable and stationary'.
As the trial judge noted, on 29 August 2008 the solicitor for Allianz left a message with the plaintiff's solicitors' office that Allianz had agreed to pay, and on 3 September, Allianz sent a cheque direct to Mr Mercer's solicitors. By letter of 3 September 2008, the solicitors for Allianz confirmed in writing with Mr Mercer's solicitors that Allianz had agreed to pay the sum of $222,267.15 in satisfaction of Mr Mercer's entitlement to a lump sum payment under s 71."
It should be noted that the amount sent directly by Allianz to Mr Mercer's solicitors represented only 90% of the amount agreed to be paid. With the letter of 3 September 2008 sent by Allianz's solicitors to Mr Mercer's solicitors, the solicitors sent a Notice of Settlement and Details of Settlement. They advised that, once those documents were signed, their client would be in a position to pay the remaining 10% of the total sum agreed to the Health Insurance Commission. The solicitors for Mr Mercer signed those forms and returned them to Allianz's solicitors under cover of a letter dated 4 September 2008. I am persuaded that, at that point in time, the parties were agreed that, albeit in the context of s 71, Mr Mercer had a percentage whole person entitlement greater than 70%.
Porter J set out at [93] of his reasons the Act, s 138AB, as it read at the relevant time. As a consequence of that provision, if Mr Mercer wished to seek an award of damages, he needed to file an election to do so with the Tribunal. He could not file such an election unless, by reference to s 138AB(2), the degree of his impairment had been agreed with his employer, or determined by the Tribunal, to be a percentage of the whole person impairment of not less than 30%.
On 24 February 2010, the solicitors for Mr Mercer sent a form of election to claim damages to the solicitors for Allianz and asked the solicitors to sign it. In that letter the solicitors said:
"Would you please take instructions to ascertain if your instructions are to sign the election. In default we will simply apply to the Tribunal on the basis that the degree of impairment has been agreed by the fact of payment."
The Tribunal had prepared forms for use in such circumstances. The one relevantly used in this case was headed:
"Degree of Permanent impairment agreed by Employer"
In that form, the following words appeared:
"I have been assessed as suffering a permanent impairment of ……………. percent of the whole person in accordance with assessment conducted pursuant to Section 72 and 73 of the Act."
A blank space was left for the parties to insert the percentage impairment said to have been assessed.
The form sent by Mr Mercer's solicitors to the solicitors for Allianz had the words "not less than 30" inserted in that blank space. It must be inferred that was inserted by the solicitors for Mr Mercer, and those solicitors then signed the election of his behalf.
Allianz's position is that a degree of impairment greater than 30% was agreed in September 2008, whereas Mr Mercer argues such an agreement for the purpose of s 138AB did not come into existence until such time as the form of election was signed by Allianz's solicitors in February/March 2010.
What was required by s 138AB before Mr Mercer could make his election was an agreement with his employer or a determination by the Tribunal to the effect that he had a percentage of whole person impairment of at least 30%. I accept that any agreement had to be underpinned by an assessment in accordance with s 72. It is clear that Mr Mercer's solicitors, having regard to the terms of their letter dated 24 February, then were of the view that the payment by Allianz in September 2008 of the maximum level of lump sum compensation, only payable if the percentage whole person impairment was above 70%, was evidence Allianz had agreed that Mr Mercer's percentage whole person impairment was greater than 30% for the purpose of an election pursuant to s 138AB.
Allianz had advice from Professor Stark in 2008 that Mr Mercer's whole person entitlement was at least 84%. That advice was prepared in response to a request for an assessment by reference to the relevant guidelines. It is clear Professor Stark had regard to those guidelines because he refers to the fact that the guidelines require that injuries be stable. There was no evidence that, leaving aside the question of the stability of Mr Mercer's condition, Professor Stark was a medical assessor for the purpose of the Act. However, his report does indicate that he is responding to a request for an assessment by reference to the relevant guidelines. If that assessment was the only one ever obtained, and there is no evidence there was any other prior to the notice of election in 2010, and it is said it was not an assessment which complied with s 72, it is arguable it could therefore not, on any basis, be an election for the purpose of s 138AB. Nobody has suggested that there was not an assessment in compliance with s 72 for the purpose of the election.
I accept that s 138AB(6)(b) allows for the Tribunal to extend the time within which an election may be made where a worker's injury is not yet stable or stationary. Porter J suggested that that might carry with it an inference that a s 72 assessment cannot be carried out until an injury is stable and stationary. However, s 72 does not provide for that and, with respect, perhaps for a good reason. There would be many workers' compensation cases (the Court sees them not infrequently) where there is an argument as to the level of the worker's impairment, and that argument impacts directly on the question of what amount of lump sum compensation might be payable under s 71, and whether or not a worker meets the threshold under s 138AB. In those cases, where a worker's situation is in that potential grey area, there could be good reason to seek an extension.
This case is not one of those. The percentage whole person impairment relied on by Mr Mercer's solicitors in 2008 was way above that required to underpin a maximum lump sum payment of compensation. Their invitation to Allianz was clearly based on the premise that there was absolutely no argument that Mr Mercer's degree of impairment was then, and always would be, well over the 70%. Allianz accepted that, and paid a lump sum accordingly.
The invitation to Allianz to pay was made by reference to s 71, and, in issuing it, Mr Mercer's solicitors relied on the assessment done by Professor Stark. Any assessment for the purpose of s 71 had to be done by reference to s 72. Allianz could not be said to be inexperienced in the workers' compensation field. Could it not have said, if indeed Professor Stark's report did not constitute an assessment for the purpose of ss 71 and 72, that it did not accept the report and would get its own assessment? It did not. The suggestion is that was a pragmatic approach, in that it chose to pay rather than have an argument. There is no evidence as to that.
I am persuaded, having regard to the facts of this case, that the report of Professor Stark contained an assessment completed by reference to s 72, and that Allianz, in accepting the advice in that report, agreed a level of impairment greater than 70% for the purpose of s 71 in 2008.
There was no evidence that the situation of Mr Mercer changed to such a degree between 2008 and 2010 to warrant a reconsideration of his degree of whole person impairment. As I have already said, there was no evidence of any other assessment between those dates. I accept that there appear to have been occupational therapy reports but no evidence they impacted, in any significant way, upon Mr Mercer's degree of impairment. In those circumstances, there was no reason for Allianz to have to revisit the issue of the degree of impairment. It had already accepted that, as a minimum, the level of impairment was over 70%. An election required only an assessment that the level of impairment was at least 30%. While the agreement that the degree of impairment was at least 70% was made at a time where only a s 71 payment was being considered, as I have already indicated, both ss 71 and 138AB are underpinned by an assessment by reference to s 72, and there is no reason why that assessment cannot be the same one for the purpose of both sections.
In my view, once there was an agreement as to the level of impairment for the purpose of s 71, that agreement remained effective for all purposes unless the parties acted to the contrary. They clearly did not.
It follows that, in my view, the determination of the trial judge that there was no agreement for the purpose of s 138AB(2) until February 2010 and that, as a consequence, Mr Mercer did not have a cause of action until then, should be set aside. It also follows that I am of the view that there was such an agreement as at September 2008 and, as a consequence, a cause of action. That leads to an outcome different from that reached by Porter J. His Honour determined that the trial judge's finding that any cause of action accrued in February/March 2010 should stand. I would determine that, subject to the extension of time issue, the appeal by Allianz should succeed.
As to the application to extend time, I agree with the reasons of Porter J commencing at [140] of his reasons. If it were needed, I would have allowed the application to extend time to file the appeal.
In all the circumstances, I would allow the appeal and order the judgment in favour of Mr Mercer be set aside.
File No 115/2015
ALLIANZ AUSTRALIA LIMITED v IVAN MERCER
REASONS FOR JUDGMENT FULL COURT
PORTER J
18 February 2016
Introduction
This is an appeal from a determination by Blow CJ in an action for damages by Mr Mercer against Allianz Australia Insurance Limited as to whether the action is statute barred. The trial of the action before his Honour has been segmented. Mr Mercer's action against Allianz is one brought pursuant to s 601AG of the Corporations Act 2001 (Cth). The employer company had been deregistered. The section provides that a person may recover from the insurer of a company that is deregistered an amount that was payable to the company under an insurance contract if the company had a liability to that person.
As a preliminary question, the trial judge held that s 5(3A) of the Limitation Act 1974 (Tas) (the Limitation Act) did not govern such an action, but that the applicable time limit was six years from the date on which the cause of action accrued; that is, the date on which the company was deregistered: Mercer vAllianz Australia Insurance Limited (2013) 273 FLR 459. His Honour then assessed damages and judgment was entered for Mr Mercer for an amount of $5.096 million: Mercer vAllianz Australia Insurance Limited (No 2) [2013] TASSC 35.
On 9 May 2014, the Full Court overruled the determination of the applicable time limit, holding that the governing provision was s 5(3A) of the Limitation Act: Allianz Australia Insurance Limitedv Mercer (2014) 286 FLR 21. When that provision applies, a plaintiff is precluded from recovering damages in an action instituted more than three years after the "date of discoverability". The judgment was set aside and the limitation point as pleaded in the defence was remitted for determination by the trial judge. On 22 December 2014, his Honour held that Mr Mercer's action was not statute barred: Mercer v Allianz Australia Insurance Limited (No 3) [2014] TASSC 69. It is that determination which is the subject of this appeal.
After that determination the trial judge went on to resolve a dispute between the parties about the amount for which judgment should again be entered, the date of the judgment and the date from which post-judgment interest would run: Mercer v Allianz Australia Insurance Limited (No 4) [2015] TASSC 2. On 16 February 2015, judgment was entered for the same amount as before. This appeal was filed on 20 February 2015. I particularly mention the last two events because there is also an issue before this Court about whether the appeal was lodged within the 21 day time limit. Depending on from when time is said to run, Mr Mercer alleges that it was not; Allianz says that it was but has filed a precautionary application to extend time. The Court heard the application and the appeal together.
The limitation defence
The writ was filed on 21 February 2012. Paragraphs 16 and 17 of the defence are as follows:
"16By no later than about 3rd September 2008 the Plaintiff knew or ought to have known that personal injury:-
(a) Had occurred;
(b) Was attributable to the conduct of Windsor Agencies Pty Ltd;
(c) Was sufficiently significant to warrant bringing proceedings.
Particulars
(i)On or about the 16th June 2008 the Plaintiff's solicitors had obtained a medical report of Associate professor Richard Stark which assessed the Plaintiff's whole person impairment as at least 84%.
(ii)On or about the 3rd September 2008 the Defendant agreed the Plaintiff's whole person impairment was greater than 30%.
(iii)On or about the 3rd September 2008 the Defendant paid to the Plaintiff the sum of $222,267.15 as a lump sum payment pursuant to Section 71 of the Workers Rehabilitation and Compensation Act 1988.
17Contrary to the provisions of Section 5A(3)(a) of the Limitation Act 1974 the Plaintiff has brought this action after the expiration of 3 years commencing on the 'date of discoverability' as defined in Section 2(1) of that Act and accordingly the Plaintiff's action and remedy are statute barred."
Mr Mercer asserted that he neither knew, nor ought to have known, that his personal injury was sufficiently significant to warrant bringing proceedings until a time less than three years before the issue of the writ. At this point, it is convenient to set out the relevant parts of the Limitation Act.
Section 5A provides as follows:
"5A Actions in respect of personal injuries incurred on or after commencement day
(1) This section applies only to an action where the cause of action accrues on or after the commencement day.
(2) For the purpose of this section, 'personal injury' includes any disease and any impairment of a person's physical or mental condition.
(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:
(a) 3 years commencing on the date of discoverability;
(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action."
Section 2(1) of the Limitation Act provides that "the date of discoverability in the case of an action for damages for personal injuries or death means the date when the plaintiff knew or ought to have known that personal injury or death —
(a)had occurred; and
(b)was attributable to the conduct of the defendant; and
(c)in the case of personal injury, was sufficiently significant to warrant bringing proceedings."
In addition to asserting the date of discoverability was less than three years before the writ was issued, Mr Mercer contended in the trial that, because of the operation of s 138AB of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act), he did not have a cause of action against Allianz until 26 February 2010, which is less than three years before the issue of the writ. He argued that accordingly, the date of discoverability provisions had no operation until then. He maintains that contention in response to the appeal.
It is sufficient for present purposes to explain that s 138AB(1) provided that before commencing proceedings in court for an award of damages, a worker who intended to seek damages against an employer must lodge with the Workers Rehabilitation and Compensation Tribunal an election to claim damages. Subsection (2) provided that a worker was not to make an election unless the degree of permanent impairment is agreed by the worker and the employer, or determined by the Tribunal to be a percentage of the whole person of not less than 30 per cent.
Chronology
The following are the relevant dates:
· On 11 March 2008, Mr Mercer was very badly injured in the course of his employment with a company named Windsor Agencies Pty Ltd.
· Allianz alleges that on or about 3 September 2008 the parties agreed that Mr Mercer's degree of permanent impairment was not less than 30 per cent of the whole person, thus giving rise to the right of election to claim damages.
· Allianz alleges that the date of discoverability was no later than 3 September 2008, or at the least, a time earlier than a date three years before the issue of the writ; 21 February 2012.
· Mr Mercer argues that the date of discoverability did not occur before 21 February 2009.
· Mr Mercer argues it was on or about 26 February 2010 that, by signing the form of election, the parties agreed that Mr Mercer's degree of permanent impairment of the whole person was not less than 30 per cent.
· On 5 March 2010, Mr Mercer lodged with the Tribunal his election to claim damages.
· On 26 January 2011, Windsor Agencies was deregistered.
· On 21 February 2012, Mr Mercer commenced his action for damages against Allianz as the insurer of Windsor Agencies, relying on s 601AG of the Corporations Act.
The trial judge's determinations
The trial judge first dealt with the issue of when it was that the cause of action arose in light of the operation of s 138AB of the WRC Act before dealing with the question of the date of discoverability. His Honour:
· found that Mr Mercer's degree of permanent impairment was not agreed until 26 February 2010;
· held that it followed that Mr Mercer did not have a cause of action against his employer until that day;
· held, however, that a date of discoverability could be earlier than a date upon which a cause of action arises;
· found that the date of discoverability did not occur before 21 February 2009, three years before the issue of the writ;
· accordingly held that the limitation defence must fail.
I will later address the trial judge's reasons in greater detail, but it is convenient to set out the grounds of appeal at this point. They are:
"1 The trial judge erred in ordering that judgment be entered for the Respondent and in failing to dismiss the Respondent's action in circumstances where that action was brought after the expiration of 3 years commencing on the date of discoverability and therefore barred by s 5A(3) of the Limitation Act 1974.
2 The trial judge misconstrued par (c) of the 'date of discoverability' definition in s 2(1) of the Limitation Act, in that:
a his Honour failed to give effect to the ordinary meaning of its language, having regard to its context and purpose; and
b his Honour wrongly concluded that the Respondent did not or could not know that his personal injury was 'sufficiently significant to warrant bringing proceedings' until:
(i) the Respondent was able to 'make a strategic decision that to rely solely on his rights under' the Workers Rehabilitation and Compensation Act, or 'whether to sue for damages' …
(ii) after the Respondent had considered (or was in a position to consider) the extent of the available workers compensation benefits, his chances of establishing that Windsor Agencies was liable for damages for negligence, the amount of damages likely to be assessed, the likely reduction in contributory negligence and past workers compensation payments: …
(iii) the Respondent knew or ought to have known 'whether he would be better off relying solely on workers compensation benefits and not claiming damages': …
(iv) the Respondent 'knew or ought to have known of the likely magnitude of the damages for attendant care and expenses', relative to the workers compensation benefits available to him: …
3The trial judge erred in failing to find that, prior to 21 February 2009, the Respondent 'knew or ought to have known' that his personal injury was 'sufficiently significant to warrant bringing proceedings' within the meaning of par (c) of the 'date of discoverability' definition in s 2(1) of the Limitation Act."
In argument, the appeal grounds were addressed before Mr Mercer's contention as to s 138AB of the WRC Act, with senior counsel for Allianz dealing with that issue in reply. This was not the order in which the trial judge dealt with the issues, but in accordance with the way the appeal was conducted, I will deal with the date of discoverability issue first, and then with the question of the operation of s 138AB.
The date of discoverability issue
As is plain from the grounds of appeal, the focus is on the construction of par (c) of the definition of "date of discoverability". The facts are relatively uncontroversial; it is the trial judge's approach to what par (c) means which is the issue. Having said that, pars (a) and (b) of the definition remain of some significance in deciding the correct approach.
At par [20] of his reasons, the trial judge noted that if an injured worker obtained a judgment for damages, any rights to further payments of workers compensation are extinguished: s 133(2) of the WRC Act. His Honour continued:
"In this case, the plaintiff had to make a strategic decision whether to rely solely on his rights under that Act and not sue for damages, or whether to sue for damages. To make that decision, he needed to consider the extent of the available workers compensation benefits, his chances of establishing that Windsor Agencies was liable for damages for negligence, the amount of damages likely to be assessed if an action were successful, the likely reduction for contributory negligence, and the likely judgment sum after reductions in relation to contributory negligence and past workers compensation payments."
The trial judge noted Mr Mercer's contention that all of those considerations must be taken into account in determining, whether at any particular date, he knew or ought to have known that his injury was sufficiently significant to warrant bringing proceedings. He also noted the competing contentions that such considerations were irrelevant, that by September 2008 Mr Mercer was well aware that his injuries were serious enough to entitle him to substantial damages, and that any question of whether he would be better off relying solely on workers compensation entitlements was irrelevant.
His Honour considered a number of New South Wales cases dealing with a provision similar to the Tasmanian definition of "date of discoverability".[1] The cases considered were Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 (Baker-Morrison); Harris v Woolworths Ltd [2010] NSWSC 25 (Harris) and State ofNew South Wales v Gillett [2012] NSWCA 83 (Gillett). His Honour went on to say:
"[28] In the light of what has been said in the New South Wales cases, it seems clear enough that the question whether a plaintiff knew or ought to have known that an injury 'was sufficiently significant to warrant bringing proceedings' must be determined with all legislative provisions relevant to the recovery of compensation and damages being taken into account. It would be ludicrous if legislative provisions that were likely to render a damages action fruitless or inadvisable had to be ignored simply because, but for the existence of workers compensation legislation, a significant sum might be recovered by way of damages.
[29] It therefore follows that in this case, in order to determine when the plaintiff knew or ought to have known that his injuries were 'sufficiently significant to warrant bringing proceedings', it is appropriate to take into account all of the factors relevant to a decision whether he would be better off relying solely on workers compensation benefits and not claiming damages."
[1] Section 50D(1) of the Limitation Act 1969 (NSW) provides that "a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action." [Emphasis added.]
These cases were the subject of close scrutiny in this appeal and I will later discuss them. As to the facts, at par [30], the trial judge set out a summary of the evidence. That is as follows:
"· On 16 June 2008, his solicitors obtained a report of Associate Professor Stark which assessed his whole person impairment as at least 84%.
· On 3 September 2008 – the date relied on in par 16 of the defence – Allianz sent his solicitors a cheque for 90% of the maximum amount payable under s 71(1)(c) of the Workers Rehabilitation and Compensation Act when a worker suffers a whole person impairment of more than 70%.
· Although the plaintiff's solicitors had been engaged less than three weeks after he was injured, the situation as at 3 September 2008 – less than six months after the accident – was that they were still investigating the merits of a damages claim, and had not advised him as to whether or not such a claim should be pursued.
· On 5 December 2008 the plaintiff's solicitors wrote to him advising as to the merits of a damages claim. They advised that a reduction of 50% for contributory negligence was quite likely, and that failure to establish negligence was possible. They suggested that, after allowing for contributory negligence and workers compensation payments, he might recover some $710,000 by way of damages but that, if he did not pursue the damages claim, there would be 'greater certainty', and he would potentially be entitled to $1,188,480 to $1,514,800 by way of future workers compensation entitlements.
· Having received that advice, the plaintiff did not then pursue a claim for damages.
· There is no evidence that the plaintiff had any reason to change his mind as to whether damages proceedings were warranted prior to 21 February 2009. That date is a critical date because the writ was issued three years later, on 21 February 2012.
· It was not until February 2010 that steps were taken by the plaintiff's solicitors to enable him to lodge an election to claim damages pursuant to s 138AB of the Workers Rehabilitation and Compensation Act."
Next, the trial judge observed that the prediction by the plaintiff's solicitors on 5 December 2008 as to the likely outcome of a damages action was significantly different from the outcome on his Honour's assessment of damages. He noted that there was an enormous variation between the solicitors' prediction and his assessment in relation to damages to compensate future expenditure on carers. His Honour went on to set out the further reasons for the "great discrepancy" which included the failure to make allowances for higher hourly care rates for some periods, the amount of care required, the increase in rates charged, and the adoption of an incorrect discount rate higher than the correct one.
His Honour resolved the date of discoverability issue in the following terms:
"[32] When the solicitors provided advice to the plaintiff in December 2008, his residential and care arrangements had not stabilised. He had been discharged from hospital at the end of August 2008. He was still living in Hobart. However he and his wife purchased a ground level unit in East Gosford, New South Wales, and moved there early in 2009. It was only after that move that arrangements were made for carers to look after him in his new home, and the care arrangements stabilised.
[33] Until such time as the plaintiff knew or ought to have known of the likely magnitude of the damages for attendant care expenses, I do not think it can be said that he knew or ought to have known that his injury 'was sufficiently significant to warrant bringing proceedings', given that substantial workers compensation benefits were available.
[34] In determining what the plaintiff 'ought to have known', I think it is appropriate to take into account the efforts that the plaintiff made to obtain advice, and the advice that he was in fact given, as distinct from any advice that ought to have been given but was not given. I say that because the relevant provisions in the Limitation Act amount to beneficial legislation, enacted for the benefit of injured plaintiffs. It follows that any ambiguity ought to be resolved in favour of the class of persons intended to be benefited by the provisions. Not treating knowledge that solicitors ought to have had as knowledge that their client ought to have had is consistent with the approach taken by Dawson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 259, though that case concerned differently worded statutory provisions.
[35] It is clear that, after receiving the letter from his solicitors dated 5 December 2008, the plaintiff did not know how enormous his entitlement to damages was likely to be. As at 3 September 2008 – the date referred to in the relevant paragraph of the defence – he did not know that his injuries were so significant that it would be appropriate to sue for damages rather than relying on workers compensation entitlements. There is no evidence that he knew or ought to have known anything more about the merits of bringing damages proceedings by 21 February 2009, three years before the issue of the writ. I am not satisfied that on or about 3 September 2008, or that at any time more than three years before the issue of the writ, the plaintiff knew or ought to have known that his personal injury was sufficiently significant to warrant bringing proceedings. The limitation defence must therefore fail."
As to the facts, Allianz relies on further aspects of Mr Mercer's evidence than that referred to by the trial judge. That is set out in its written submissions:
"6…
(a)the Respondent's evidence was that, immediately after the accident on 11 March 2008 and prior to the arrival of an ambulance, he 'couldn't feel [his legs] or move them', 'was pretty aware at that stage that something serious had happened' and 'expected [he'd] probably severed the spinal cord … because [he] couldn't move anything'.
(b)also on the day of his accident, doctors established that the Respondent's spinal cord had been severed and he was diagnosed with quadriplegia. Once 'the opiates wore off' and whilst he was at the Austin hospital, the Respondent 'was told' of his diagnosis: he 'was quite aware' and would have 'been surprised if it was anything else.'
(c)the Respondent agreed that he realised in April 2008, and has remained of the view since that time, that the likelihood was he would never work again. He further agreed that he knew from April 2008 that his injury meant he would never earn income from his labour ever again.
(d)the Respondent was cognisant of his own physical condition, limitations and extensive daily care requirements months before February 2009. This included knowledge that he had no voluntary movement in his legs; that he had no control of his bladder or bowel; and that he required the assistance of others perform [sic] many normal activities of daily life.
(f)the Respondent conceded that by July 2008 he had read Professor Stark's report. He also agreed that in July 2008, he knew of Professor Stark's opinions that:
(i) the Respondent 'sustained a very severe spinal injury and it is unlikely there will be major improvements in lower limb function';
(ii) 'It is thus highly likely that this man will be permanently disabled and is likely to require permanent use of a wheelchair. It is likely that there will be significant ongoing dysfunction involving his left upper limb and he is also likely to have ongoing problems with bladder and bowel function';
(iii) 'It is likely that the bottom line impairment will be at least 84% WP'.
(g)the Respondent admitted knowing, in July 2008, that Professor Stark's WP assessment was significant because he had been told that one had to have a WP impairment of 70% or more to obtain the maximum lump sum compensation under the WRC Act. He acknowledged being aware at the time that he satisfied the impairment threshold for the highest level of lump sum workers' compensation; and moreover that, later in 2008, his solicitor claimed and Allianz paid the maximum amount based on a WP impairment of over 70%.
(h)on about 5 December 2008, the Respondent received and read a written advice from Phillips Taglieri. It included advice to the following effect:
(i) '… you may only proceed with a common law claim against your employer, if you have suffered a 30% whole person impairment. You have suffered this level of impairment, so the only issue is whether you could demonstrate that your injuries were caused by the negligence of Nick Bacic. If "yes", Windsor Agencies Pty Ltd will be liable as Nick's employer and indemnified by the insurer.'
(ii) '… if you succeed in establishing liability at common law, you probably would recover' damages of $1,682,360 to $2,158,700, but after adjustment for a probable finding of 50% contributory negligence and past statutory compensation, the 'Net result' would be $710,265." [Original emphasis]
Additionally, Alllianz refers to the advice of 5 December 2008 which was given some prominence by the trial judge. Allianz points to Mr Mercer's evidence that as a result of the advice, he thought "we had no advantage proceeding with a civil action as a result was minimal compared with the outcome. So we, at that stage, decided to – to stick with workers comp". When asked why he later decided to issue common law proceedings, Mr Mercer said that he received further advice and "the outcome was considered to be of – beneficial to us". Allianz relies on comments which emerged from Mr Mercer's answers in cross-examination about the December 2008 advice. They are as follows:
"(a)there was absolutely no question in the Respondent's mind that his level of impairment exceeded the 30% threshold applicable to common law claims;
(b)when he testified that he thought there was 'no advantage' in proceeding with a civil action, he meant that the amount of money he was likely to be left with at the end of the case was not going to be much more and possibly less than he would receive by way of workers' compensation entitlements.
(c)when he testified that according to later advice, the 'outcome was considered to be … beneficial' he meant that he was told he was likely to get more money by way of damages than he'd previously been advised;
(d)his decision not to commence proceedings earlier had nothing to do with a belief that his injuries were not serious enough. Moreover, nobody had advised him that he could not commence proceedings at common law because his injuries were not significant enough.
(e)the Respondent's injuries did not materially change after December 2008;
(f)what changed between December 2008 and the commencement of proceedings was the dollar sum that the Respondent thought he had a chance of receiving at common law."
Allianz summarises the position as follows:
"9 In short, the evidence established that by the end of 2008 the Respondent knew his injury had rendered him a quadriplegic; that he was unlikely to work or earn an income from his labour ever again; that for the remainder of his life he would require the assistance of others to perform most ordinary daily activities; that he had been assessed as having a WP impairment of at least 84%; that there was no question he satisfied the 30% minimum impairment threshold applicable to common law actions; that he did have a common law cause of action against his employer; and that if he proved his injuries were caused by the negligence of his fellow employee, Mr Bacic, he may recover damages of about $710,000 (after reductions)."
Allianz submits that the evidence shows that Mr Mercer's decision not to commence proceedings earlier than he did had nothing to do with the significance of his injuries. It was driven by a perception that, in comparison with his workers compensation entitlements, the outcome of common law proceedings would not produce a financial advantage. Mr Mercer made a conscious choice between the two available remedies known to him, rationally selecting the one that he thought would produce the most compensation. He later reversed his choice, but for the same reason: with a view to obtaining the most compensation.
Critical to the conclusion of the trial judge is the proposition contained in par [20] of his reasons which I have set out above. As to this, Allianz submits that:
"13 … it is undoubtedly true that [Mr Mercer] had a decision to make and that the considerations identified by the trial judge were relevant to that decision. But the decision fixed upon by his Honour was a decision whether to actually commence common law proceedings. The 'date of discoverability' is not the date by which proceedings must be commenced: it is the date on which the limitation period starts. Once it starts, a personal injury plaintiff has 3 years to make the 'strategic decision' adverted to by his Honour. There is no cogent reason why the limitation period should not even begin until the plaintiff is in a position to make that decision."
That takes things to the point of what is to be made of the New South Wales decisions, and whether it follows from those decisions that "all of the factors relevant to a decision whether [Mr Mercer] would be better off relying solely on workers compensation benefits and not claiming damages" is a correct statement of the law.
The definition – "date of discoverability"
Incorporating the introductory words, par (c) refers to actual constructive knowledge that the person's injury was sufficiently significant to warrant bringing proceedings. The definition deals with personal injury or death, but par (c) is confined to personal injury. It seems common ground that the word "warrant" is to be treated as synonymous with "justify", as appears in the New South Wales equivalent.
The difference in the parties' positions is that Allianz says that the required knowledge relates to the nature and extent of the injury. Mr Mercer says that the paragraph incorporates the question of significance assessed by reference to something broader than the injury itself. That is, it makes knowledge as to whether proceedings are generally justified, enabling all relevant considerations bearing on actions for damages to be taken into account. Allianz makes the point that such a position is inconsistent with the position of personal representatives of the deceased person. Only pars (a) and (b) relate to death. If par (c) operates as contended for by Mr Mercer, personal representatives of a deceased person are put in a completely different category, and a "date of discoverability" would occur without reference to the likely outcome of an action for damages for wrongful death.
Before turning to the New South Wales authorities, it is worth mentioning the genesis of the "date of discoverability" provisions. Section 5A and the definition are derived from the review of the Law of Negligence Final Report, 2002 (the Ipp Report). Apart from a slight change in the wording of par (b), the s 2 definition is identical to the proposal in Recommendation 24 of that report.
The recommendation was made recognising the need to cater for many different kinds of damages. Paragraph 6.11 of the Ipp Report states:
"Different considerations arise depending upon whether damage is suffered in consequence of an accident that causes trauma or whether it is suffered in consequence of the contraction of a disease. In the case of an accident, the damage is usually (but not always) suffered immediately or soon after the accident. However, there are cases, such as those involving certain kinds of post-traumatic stress disorder, where the damage can manifest itself many years after an accident. In the case of a disease (such as mesothelioma for instance) damage may also manifest itself many years after negligent conduct. Damage may occur progressively, with the result that a plaintiff may only realise after many years of being subjected to wrongful conduct that significant damage has been sustained …".
As to par (c), par 6.20 of the Ipp Report states that "the purpose of the requirement of knowledge that the personal injury is sufficiently significant to warrant bringing proceedings is to deal fairly with those cases where serious injury is sustained progressively over a period". At pars 6.23-6.24, the report states that an element of determining the date of discoverability is the time when the plaintiff could reasonably be expected to have discovered that damage had occurred, thus providing a fair way of dealing with those cases where damage manifests itself long after the event, or in a form difficult to detect. "Adopting the date of discoverability provides a fair way of dealing with those cases where it takes many years for a plaintiff to discover that his or her condition was caused by the negligence of another."
The mischief the provisions was intended to remedy was that created by the circumstances in which a cause of action accrues. A cause of action in negligence accrues when all the elements of the tort are present. Damage is an essential element of the cause of action, and so there is accrual when damage of more than an insignificant nature is suffered: Cartledge v E Jopling & Sons Ltd [1963] AC 758; Jobbins v Capel Court (1989) 25 FCR 226 at 228; Footner v Broken Hill Associated Smelters Pty Ltd (1993) 33 SASR 58 at 71. In situations where damage manifests itself long after the event, or injury is sustained progressively or in a form difficult to detect, causes of action may easily become statute barred before the injured party is aware of having suffered damage.
That the amendments to the Limitation Act were based on the Ipp Report was made explicit in the Minister's second reading speech in respect of the Limitation Amendment Bill 2004. The Minister noted that even before the Ipp Recommendations, all other States and Territories "had provided for some form of discovery-based limitation period for latent diseases".
At this point I note that the task of statutory interpretation begins with the ordinary grammatical meaning of the text to be interpreted having regard to its context. Context includes having regard to the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 31 [4] and 46-47 [47]. Statutory purpose resides in the statute's text and structure, and may appear by inference or by appropriate reference to extrinsic materials: Lacey v Attorney-General for Queensland (2011) 242 CLR 573 at 592 [44]. The objective is to give to the words the meaning the legislation is taken to have intended: Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 per French CJ at 1103 [45].
The authorities
The first case is Baker-Morrison. The leading judgment is that of Basten JA, with whom Ipp and MacFarlan JJA agreed. The facts were that a 2-year old girl injured her fingers in a set of automatically opening sliding doors. Her right little finger and part of her right ring finger had to amputated and reconstructive surgery was needed on two other fingers. Proceedings were instituted on a date after three years had elapsed from the date of the injury. The question was whether the cause of action was discoverable by the child's mother in the period up to a point in time three years before the issue of the writ. I say "whether the cause of action was discoverable", because s 50D(1) of the Limitation Act (NSW) provides that a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the matters set out in pars (a) to (c) which are not dissimilar to the paragraphs in the Tasmanian definition: see footnote 1 above.
It should be noted that s 16 of the Civil Liability Act 1969 (NSW), limits damages which may be awarded for non-economic loss. No damages can be awarded unless the severity of the loss was "at least 15% of a most extreme case". There is a maximum amount and a table based on percentages of severity. Additionally, because of the age of the child, proceedings cannot be commenced except by a tutor who, in turn, cannot commence proceedings except by a solicitor. The solicitor is required to certify that there were reasonable prospects of success.
In setting out the factual background and submissions, Basten JA at 460 said:
"19 With respect to par (c), the plaintiff argued that the seriousness of the injury was not a matter of objective fact, but was an element in an evaluative judgment requiring the seriousness of the injury to be sufficient to justify bringing an action against the defendant. Given the variety of statutory schemes applicable to personal injury claims, and the various limits placed upon the recovery of damages, it was said to be unlikely that par (c) would be capable of assessment by a plaintiff unadvised, except perhaps in quite severe cases. The problems must be exacerbated in respect of injury to a young child.
20 The material before the Court included an assessment (albeit made in 2005) of the degree of 'whole person impairment' of the plaintiff, although not a criterion relevant under the Civil Liability Act 2002 (NSW). The plaintiff's medical expert considered that there was a whole person impairment of 16%, but the State's expert considered the relevant figure was 1%. This was clearly not a case in which the seriousness of the injury self-evidently justified the bringing of proceedings. Further, the question is whether such a judgment should have been made by the plaintiff's mother within 26 days of the injury occurring."
When dealing with the construction of s 50D(1), at 461 [26] his Honour said that the aspects of the concept of knowledge and each of the identified facts in the paragraphs were interrelated, "in the sense that if the facts were properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise". Further, at 464-465 [41]-[43], his Honour said:
"41 Although a legal evaluative judgment appears to be required by par (b)[2], that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise. …
42 The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.
43 It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004 (NSW), s 347. The statement of claim in the present case bore such a certification which read:
'I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success'." [My footnote.]
[2] Paragraph (b) requires actual or constructive knowledge of the fact that the injury or death was "caused by the fault of the defendant". [Emphasis added]
In dealing with the question of knowledge as it related to all of the facts referred to in s 50D(1), his Honour said at 465 [45]:
"… It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. …". [My emphasis.]
Basten JA went on to quote with apparent approval from a judgment of Goldring DCJ in Rawle v Southstate Industrial Suppliers Pty Ltd (2008) 7 DCLR (NSW) 134. There it was said that the question of whether or not the bringing of an action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law. The quoted passage continues:
"[26] In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist."
In Baker-Morrison, the appeal was allowed. It was held that the child's mother did not have actual knowledge sufficient to satisfy par (c) or in all probability, par (b), nor did she have objective knowledge of any of the facts identified in the provisions.
Allianz relies on the subsequent decision in Bostik Australia Pty Ltd v Liddiard [2009] NSWCCA 167. The facts were that the plaintiff was injured while lifting in the course of his employment on 30 January 2003. He was originally diagnosed as having strained biceps and certified fit for normal duties within three weeks of the accident. Some months later, he was diagnosed as having a neck injury which required surgery. Two lots of surgery failed to alleviate his condition. The court confirmed the finding of the trial judge that the relevant date for the purposes of par (c) was a date in November 2004, when the first operation proved unsuccessful.
Beazley JA, with whom Ipp and Basten JJA agreed, referred to the comment at par [26] of Baker-Morrison, which I have set out above, and also to par [41]. At par [55] her Honour noted that the injury was first diagnosed as relatively minor, with the injury being such as to likely resolve or substantially resolve. "It would not, in the normal course, be sufficiently serious to justify the bringing of a proceeding." At par [56], her Honour observed that even if the trial judge's finding that the relevant date for the purposes of par (c) was an earlier date, "then the earliest the cause of action was otherwise discoverable was some time after November 2004, when the operative treatment did not provide the relief … anticipated".
Allianz also relies on later comments about Baker-Morrison made by Basten JA. The case is Frizelle v Bauer [2009] NSWCA 239. The plaintiff was knocked unconscious and suffered a fractured kneecap as a result of a fall in rented premises. She sought legal advice within a few weeks, but did not commence proceedings until nearly four years later. The time between the injury and the three-year period back from the proceedings date was about nine months. A limitation defence succeeded at first instance. Judgment was delivered before Baker-Morrison, but the appeal heard after that decision had been handed down.
In Frizelle, the trial judge noted the action was one in negligence and one subject to the provisions of the Civil Liability Act "with its limitations". His Honour said that there may have been some question as to whether or not any action commenced by the plaintiff would have been such as to entitle her to recover damages for non-economic loss given the threshold, but by about four months after her injury, she had been forced to give up employment, she was out of work for four months before obtaining alternative employment, and that was only on a casual basis. The trial judge was of the opinion that it would have been fairly apparent, at least after about six or seven months, that the plaintiff had an impairment of her earning capacity as a result of the injury, and at that time she had also developed symptoms in the knee which had not been present before. Earlier she had been told of the likelihood of surgery and had received advice that she had a good case against the defendant.
The trial judge concluded that it was more than three years before the filing of the writ that the plaintiff knew all of the matters in s 50D(1). He said that the nature of the injury and the likelihood of some further surgery, albeit minor, the possibility of the development of arthritis, the development of the further symptoms, and the substantial impact on her employment "was such as would to the mind of a reasonable person have led to the conclusion that the injury was sufficiently serious to justify the bringing of an action … prior to a date three years preceding the actual date upon which [proceedings were instituted]."
On appeal, Basten JA (with whom McColl JA agreed) said at pars [27]-[28]:
"27 There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the 'fault' of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case.
28 The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt."
The next case is Harris v WoolworthsLtd [2010] NSWSC 25. It is not necessary to recite the facts. R A Hulme J expressly dealt with the relevance of such things as prospects of success. In a passage, part of which was referred to by the trial judge in the present case, his Honour said:
"180 It was contended that in the present case Mr Lindsell had no information about the seriousness of the plaintiff's injury in 2004 and early 2005 which would enable him to advise (a) if it was more than the threshold of 15% of a most extreme case (s 16 Civil Liability Act); (b) if an award for future economic loss could be made (s 13 Civil Liability Act); (c) that she had a need for, or an entitlement to, damages for gratuitous or commercial care which exceeded the threshold in s 15 (Civil Liability Act); or that there were reasonable prospects to commence proceedings (s 345 Legal Profession Act).
181 The last point in that submission is at odds with what Basten JA said at [45] of Baker-Morrison – 'the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings'. Sections 50C and 50D are concerned with when a cause of action is discoverable, not with the prospects of success of any proceedings brought in respect of it. It might be patently obvious that an injury and its effects are sufficiently serious to exceed all of the thresholds that have been referred to but the evidence to prove the claim might be entirely deficient. It would be anomalous if it could be said that the cause of action is not discoverable until more evidence became available to satisfy a lawyer that there was a reasonable prospect of success.
182 Moreover, I do not understand Basten JA to have held that all of the heads of damages that might be available must be known to the person. To know that an injury is sufficiently serious to justify the bringing of an action requires legal and medical expertise, as I have earlier referred to his Honour having said. But the degree to which matters within such expertise need to be known with precision will depend upon the circumstances of the individual case. There will be cases in which it will be patently and immediately obvious that an injury is so serious that all of the statutory thresholds will be exceeded without having to wait until the injury has stabilised. There will be cases in which it will be obvious that some thresholds will be exceeded whilst others cannot yet be determined. The nature of the thresholds will then require consideration in order to decide whether it was possible to determine at that point that the bringing of an action is justified, or whether such a determination could only be made at a later point when the position is clearer." [My emphasis.]
That brings me to Gillett, a case in which the Court of Appeal was constituted by five judges in order to consider the correctness of Baker-Morrison. Allianz suggests that it is of little significance given that the question in issue was the meaning of the concept of "fault" as expressed in par (b), an aspect absent from the Tasmanian equivalent. On the other hand, Mr Mercer places considerable reliance on what Blow CJ in the present case described as "supplementary comments" made by Campbell JA.
It is not necessary to set out the facts of Gillett in any detail. The events underlying the plaintiff's cause of action happened in 2004. He commenced proceedings in negligence and breach of statutory duty in 2008. The argument was that he must have known that a cause of action existed in 2005, but that he did not have enough evidence to make it out. It is true that the case concerned the concept of fault in s 50D(1)(b). The argument advanced for the State was that for the purposes of s 50D, the necessary knowledge, whether actual or constructive, is of facts sufficient to establish that a person has a cause of action against the defendant; s 50D does not require that a person also know that he or she has a cause of action, that is, it was not necessary that the plaintiff know that the defendant is legally liable. The particular question was whether "fault" should be confined to relevant acts or omissions to which moral blameworthiness attaches.
The leading judgment is that of Beazley JA. Campbell JA agreed and made additional comments. McColl, Young and Whealy JJA, all agreed with Beazley JA and with the additional comments of Campbell JA. At pars [39]-[56], Beazley JA makes it quite plain that the point in Baker-Morrison which was the subject of contention in Gillett, was the construction given to the operation of par (b) and the meaning of the word "fault" in that paragraph.
In examining what was said in Baker-Morrison, Beazley JA said at [70]-[71]:
"70 It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that 'the injury suffered was sufficiently serious to justify the bringing of an action': s 50D(1)(c). In other words, a plaintiff had to know that the defendant's conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters.
71 Basten JA also considered, at [43] 465, that s 50D was to be read in a broader context. One such context was the requirement that a claim for damages for personal injury, in cases where a solicitor acts for a plaintiff, must be accompanied by a certification that the proceedings have prospects of success: the Legal Profession Act 2004, s 347. This supported his Honour's construction of s 50D(1)(b) that a plaintiff had to know, or ought to have known, that a defendant's conduct was actionable."
The supplementary comments of Campbell JA that are the subject of debate in this case are as follows:
"131 In Baker-Morrison Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon 'the exercise of both legal and medical expertise' ([41]) and that 'the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made' ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being 'fault', actionability is likewise one of the 'key factors necessary to establish liability' that must be known before s 50D(1)(b) is satisfied." [My emphasis]
Resolution of the issue
Allianz submits that it does not "follow" from the New South Wales decisions to which the trial judge referred, that in order to determine when Mr Mercer knew or ought to have known his injuries were sufficiently significant to warrant bringing proceedings, it is appropriate to take into account "all of the factors relevant to a decision whether he would be better off relying solely on workers' compensation benefits and not claiming damages". The New South Wales decisions do not warrant a conclusion that a cause of action is not discoverable until the plaintiff is in a position to decide whether that cause of action will produce more compensation than a statutory alternative. In other words, it is not correct to say that the provision contemplates taking into account what an action for damages might produce, as against an alternative remedy or source of income to which the person may be entitled by virtue of the injury.
Allianz submits that it is clear from the evidence that Mr Mercer did not pursue an action for damages at an earlier time because he believed there was a more financially beneficial course to take. But the existence of a more lucrative alternative does not mean that a person does not know that an injury is not serious enough to justify bringing proceedings. Allianz stresses that the date of discoverability is not the date by which proceedings must actually be commenced. It is the date when the limitation period commences. There is no cogent reason why the limitation period should not even begin until the plaintiff is in a position to make the strategic decision referred to by the trial judge.
Mr Mercer says the trial judge's approach is supported by Baker-Morrison and Gillett. Knowledge of the significance of an injury sufficient to warrant bringing proceedings includes such things as the comparison between the likely outcome of the action and what might be obtained by way of workers compensation benefits. Because of the compendious nature of the expression, such a comparison can make proceedings justified or not; it is not just the seriousness of the injury as such. The ultimate consequences of taking action, as against accepting existing entitlements, is a matter relevant to knowledge.
I accept Allianz's arguments as to the construction of the definition. The fundamental point is that the provision is to fix a time at which time commences to run. The clear purpose of the provisions is to deal fairly with cases where the existence of some injury, or the seriousness of it, is not apparent for some time, particularly where it is of a progressive nature. It seems to me that against the backdrop of the rationale for the date of discoverability provisions, and on the wording of a definition as whole, it is the significance of the injury which is the focal point of par (c). It is the injury which must be known to be sufficiently significant to warrant bringing proceedings, although it is plain from Baker-Morrison and Frizelle v Bauer that in certain circumstances the knowledge referred to in par (c) will involve legal and medical information and evaluation. Whether or not a degree of impairment is required, as is the case under s 138AB, is a good example. Relevant knowledge would include knowledge that the threshold exists and whether the injury has given rise, or might well give rise, to the particular degree.
Of course, as Basten JA made clear in Frizelle, it is not every case which involves legal or medical evaluation. In Baker-Morrison, his Honour expressly said that the introductory words refer to knowledge of identified facts, "and not to an assessment of prospects of success in the prospective proceedings". The possible need for medical and legal evaluation where such things as thresholds and other legal factors bearing on the viability of an action, does not mean that knowledge of sufficient significance to warrant bringing proceedings extends to knowledge of all of the various favourable and adverse contingencies which will affect the ultimate outcome. Those matters are relevant to the decision as to whether to institute proceedings.
I do not think that par (c) is to be read as saying that a person only knows or is taken to know that the injury is sufficiently significant to warrant bringing proceedings until they are in possession of all information enabling a full evaluation of the likely outcome of proceedings, and if relevant, a comparison to alternatives which may be available. In my view, par (c) does not mean knowledge that the injury is sufficiently significant to warrant bringing proceedings, in the sense that the anticipated outcome, assessed on the basis of the significance of the injury and all other factors which may affect the outcome, warrants proceedings actually being taken.
I now turn to the comments of Campbell JA in par [131] of Gillett. It will be recalled that his Honour said for a person to have the knowledge referred to in par (c), they would have to know, or be in a position where they ought to know, that they had sufficient prospects for recovering enough damages for it to be worthwhile litigating, and that this would require, amongst other things, the knowledge that the damages that could be recovered are large enough to be worth the time and trouble of suing.
Care needs to be taken to put these comments in their proper context. In Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77, Rich J said at 109-110 (omitting references):
"The real meaning of the words used in a judgment must be studied having regard to the subject matter and all the circumstances. No 'court should consider itself fettered by the form of words, as if it were a phrase in an Act of Parliament which must be accepted and construed as it stands'."
While entitled to respect, particularly as they were endorsed by three other members of the court, the comments of Campbell JA were merely observations. However, I am not able to read his Honour's comments as justifying the approach adopted by the trial judge in this case. Gillett did not concern the construction or application of par (c). It only concerned the concept of "fault" in par (b) as it appears in the New South Wales statute. All of what his Honour said needs to be taken into account. Having referred to the recovery of enough damages "to be worthwhile litigating", or "large enough to be worth the time and trouble of suing", his Honour said that as a consequence "knowledge of actionability is necessary before [par](c) is satisfied". (My emphasis.) That does not support the argument that his Honour was endorsing the requirement for relevant knowledge to involve actual or constructive knowledge of all factors which might affect the ultimate outcome, and hence actual or constructive knowledge that it was worthwhile bringing proceedings in that sense.
With respect, I take the view that the trial judge erred in his approach. His Honour referred to the plaintiff having to make a strategic decision as to whether to rely on his rights under the WRC Act and not sue for damages; that to make that decision Mr Mercer needed to consider all questions of liability, contributory negligence and all factors affecting quantum. His Honour held that in order to determine whether the plaintiff had the requisite knowledge under par (c), it was appropriate to take into account all of the factors relevant to a decision whether he would be better off relying solely on workers compensation benefits and not claiming damages. In my view, those matters are clearly relevant to the decision as to whether to in fact institute proceedings, but that is not the way in which par (c) operates. Paragraph (c) relates to the significance of the injury itself. Some medical and legal evaluation may be required to put the significance of the injury in its proper context, but it does not extend to all factors relevant to the decision to actually commence proceedings.
My view is that the wording of s 138AB and its context provide good grounds for concluding that an agreement within the meaning of subs (2) involves a mutual understanding, or 'meeting of the minds', that the agreement is for the purposes of the section. I would hold that to be so. I do not, however, accept Mr Mercer's submission that an agreement has to use the precise words of subs (2). If I am right, there could not have been a relevant agreement in September 2008. There is simply no evidence of a common intention to that effect, and the evidence plainly shows otherwise. On that primary basis, it is the end of the matter. If I am wrong about the scope of the agreement extending that far, I think that at the least, an agreement for the purposes of s 138AB(2) must be based on an assessment carried out in accordance with s 72 (or s 73). In other words, the matters agreed must include the required manner of the assessment. That is because the requirement in subs (3) is a substantive one.
This was not the subject of submissions, but I take that view because it is uncontroversial and self-evident that s 138AB was designed, as a matter of public interest, to limit the class of persons able to claim damages, and so to reduce costs to employers and insurers. It seems to me that because the scheme is designed for the public interest, no party would be able to waive the requirement in subs (3), although on its face it might operate for their individual benefit: Lieberman v Morris (1944) 69 CLR 69; Brooks v Burns Philp Trustee Co Ltd (1968) 121 CLR 432 per Windeyer J at 456; Commonwealth v Verwayen (1990) 170 CLR 394 per Mason CJ at 404, per McHugh J at 496. It would follow that non-compliance would make an election invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-89. This would be particularly so as compliance is in the hands of private individuals: Clayton v Heffron (1960) 105 CLR 214; Hunter Resources Ltd v Melville (1988) 164 CLR 234 per Dawson J at 252. I have already addressed the consequences of instituting proceedings in the absence of a cause of action having accrued by virtue of s 138AB(2).
The question is then whether it is shown that any agreement in September 2008 was based on a s 72 assessment. The evidence would need to induce actual persuasion of that fact, in order to make the finding on the balance of probabilities. The following things are relevant. In September 2008 it was common ground that Mr Mercer's injury was not stable and stationary. In the communications between the parties, there were no references to s 72 or to the Board's guidelines (which were not in evidence), and nothing about the nature or legitimacy of either the DRE method or the assessment based on the neurological tables. There was nothing to show to Allianz that Professor Stark was a medical assessor. Compliance, and agreement based on compliance, might be inferred, but the inference must be one which arises as an affirmative conclusion from the circumstances proved in evidence, and not simply a choice amongst rival conjectures: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304.
The evidence does not satisfy me that any agreement in September 2008 was based on a s 72 assessment. There is no evidence that Allianz directed its corporate mind to the issue. I accept that there was no evidence of any further assessment or directly relevant information coming into Allianz' hands between August 2008 and February 2010. However, this Court has general material from the file of Mr Mercer's solicitors for the period up to January 2009. Parts of that suggest ongoing payments of medical and other expenses, and the provision to Allianz of a report from an occupational therapist, a copy of which is not in the appeal book. Some understanding of the medical situation might have been gained from this. The signing of the election form is the first piece of direct evidence that Allianz directed its attention to any assessment under s 72.
I may also be wrong about my view of what is essentially required for an agreement for the purposes of s 138AB(2). In that case, and in any event, the matter falls to be decided on the factual question of whether the evidence about what happened in August and September 2008 establishes an agreement as to any relevant matter. Again, that evidence needs to induce an actual persuasion of the fact. I am not persuaded that the trial judge was wrong in finding as he did. Mr Mercer's injury was not stable and stationary. It would appear that he could then not establish an entitlement to payment under s 71. Plainly enough, Allianz agreed to pay when it did, accepting that at some point in the future, it was highly likely, if not inevitable, that such an entitlement would be established. The full entitlement was paid on the basis of the information Allianz had at the time.
It might be implicit in the payment that there was an acceptance that Mr Mercer's permanent impairment as a percentage of the whole person was not less than 30 per cent, but apart from agreeing to pay the money, which it did, Allianz did not agree to anything material. The payment was not accompanied by any acknowledgement of a right to payment at that time. It seems correct to me to characterise what was done as choosing to pay rather than getting involved in a dispute, or putting Mr Mercer to proof. I note that in February 2010, Mr Mercer's solicitors threatened that in default of Allianz signing the election, they would apply to the Tribunal on the basis that the degree of impairment had been agreed by the fact of the payment, not on the basis that there had been any express or implied agreement as to the basis of that payment. It follows that the finding that Mr Mercer did not have a cause of action against his employer until about 26 February 2010 should not be set aside.
Outcome
The end result is that the appeal should succeed, subject to the issue of its competence. The respondent's contention also succeeds, and the finding of fact by the trial judge about the timing of the s 138AB(2) agreement is undisturbed. The outcome is that the judgment in favour of Mr Mercer must stand. In strict terms, there is then no need to consider the application to extend time. However, as its resolution may have some consequences, and having regard to the level of vigour with which it was pursued on behalf of Mr Mercer, I will briefly deal with it.
Section 40 of the Supreme Court Civil Procedure Act 1932, gives to the Full Court jurisdiction to hear and determine appeals "from all judgments, orders, and other determinations (whether final or otherwise) given by a judge, …". By virtue of r 659 of the Supreme Court Rules 2000, an appeal from a final judgment is to be instituted within 21 days after the date on which the judgment was pronounced, or if it is not from a final judgment, within 10 days. Rule 655 defines "final judgment" as including "any judgment, by which the rights of the parties are finally concluded with respect to any matter in question in a proceeding, other than a decision on a matter of procedure".
Mr Mercer's point is that the trial judge's determination of the limitation point, reasons for which were delivered on 22 December 2014, was a judgment by which the rights of the parties were finally concluded, not only in respect of the limitation point, but as things happened in this case, the trial of the action. That point is maintained notwithstanding that the trial judge went on to hear submissions about the final amount for which judgment should be entered, handing down his reasons for that decision on 11 February 2015, with the judgment being entered on 16 February 2015. The appeal was lodged on 23 February 2015.
In my opinion, the appeal was brought within time. Allianz could have appealed against the trial judge's determination of 22 December 2014. That was permitted by the definition of "final judgment" in r 655. The question is whether the appeal could only have been brought from that determination, and not from the final judgment with the appeal encompassing the earlier determination. I do not believe that the rules should be interpreted in this way. The usual rule is that on an appeal against a final judgment it is open to an appellant to raise the correctness of any interlocutory or other order which has been made as a step in the proceedings leading up to the final judgment, at least one which affects the final outcome: Crowley v Glissan (1905) 2 CLR 402; Smith v Tabain (1987) 10 NSWLR 562, per Mahoney JA at 566; Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61 at [15]-[16].
In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Gaudron, McHugh and Hayne JJ said at 483 [6] (omitting references):
"The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handleywhere it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result'." [Original emphasis]
Their Honours went on to say that there may be some kinds of interlocutory decisions made, other than in the course of the hearing which leads to entry of final judgment in the proceeding, which may present some other issues for consideration. See also Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 at 449 [78]. In this case, separate questions were dealt with by the trial judge in stages. The one under appeal had a strong bearing on the outcome. That being so, the usual rule should apply.
If I am wrong about that, I would in any event have allowed the application to extend time. The delay was only 27 days. The explanation is plainly to be inferred from the arguments put about the appropriate time for appeal. Mr Mercer expressly disclaimed any prejudice.
I would allow the appeal but uphold Mr Mercer's contention on the point of law. Given the undisturbed finding of fact by the trial judge about the timing of the s 138AB(2) agreement, it follows that the judgment should be affirmed.
File No 115/2015
ALLIANZ AUSTRALIA LIMITED v IVAN MERCER
REASONS FOR JUDGMENT FULL COURT
WOOD J
18 February 2016
I have had the advantage of reading the reasons for judgment of Porter J and for the most part, I agree with his Honour's reasoning. Because of the success of the respondent's contentions, I agree that the judgment in the respondent's favour must stand and I would also affirm that judgment. I wish to add some comments of my own with respect to two discrete issues. These issues are the timing of the agreement for the purpose of s 138AB(2) of the Workers Rehabilitation and Compensation Act 1988 and a matter, which I will deal with first, concerning the definition of "date of discoverability" and the construction of par (c) of s 2(1) of the Limitation Act 1974 (Tas). It seems to me that it may be argued that the wording of the definition of "date of discoverability" entails that the cause of action has accrued before the definition could apply. The proper construction of the definition may mean that that date could not arise until s 138AB(2) of the Workers Rehabilitation and Compensation Act had been satisfied and liability was in existence. As will be seen, I agree that s 138AB(2) was not satisfied until February 2010. If the argument is correct, then, in this case, it would mean that the date of discoverability arose at a time less than three years before the issue of the writ. The upholding of grounds 1 and 3 follow from a conclusion that the date of discoverability arose at a point in time more than three years before the issue of the writ. Accordingly, I am left with some reservations about the conclusion reached by Porter J at [92] that all three grounds of appeal had been made out. The argument does not affect the outcome of the date of discoverability issue or impinge on the reasoning of his Honour, with which I agree, as to the construction of s 5A of the Limitation Act, operating only in respect of accrued causes of action.
Before explaining the argument, I wish to record my agreement with all that Porter J has said about the limits of the medical and legal evaluation that may be engaged by par (c) and the matters which are excluded from that evaluation. His Honour did not need to deal definitively with the matters of legal and medical expertise that would be included in the knowledge referred to in par (c) that an injury "was sufficiently significant to warrant bringing proceedings". At [84] his Honour noted an example of whether or not a degree of impairment is required, as is the case under s 138AB, and knowledge that the injury has given rise or might well give rise to the particular degree specified. I agree that this section would not be excluded from any evaluation under par (c), but I wish to make it plain that I do not see the implications of s 138AB for par (c) as resting there.
The argument is that par (c) is sufficiently flexible to allow the requirement in s 138AB to be taken into account in fixing the date of discoverability. It is arguable that regard may be had to the true import of s 138AB as established by Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd (2005) 15 Tas R 88.It seems to follow that, in a case where s 138AB applies, par (c) would operate so that the date of discoverability could not arise until liability has come into existence. In other words, time could not commence to run until an agreement had been reached or determination had been made.
This approach to the construction of par (c) is entirely in line with the New South Wales decisions that were considered by Porter J in his thorough analysis of the authorities: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 per Basten JA at [41]-[45]; followed in Frizelle v Bauer [2009] NSWCA 239; Bostick Australia Pty Ltd v Liddiard [2009] NSWCA 167; Harris v Woolworths Ltd [2010] NSWSC 25 at [173]-[184]. See also State of New South Wales v Gillett [2012] NSWCA 83. This line of authority allows for consideration of the broader legal landscape, including statutory regimes bearing on the recovery of damages. When a worker has been injured, s 138AB is a particularly prominent feature of that landscape. Moreover, s 138AB is not a provision which merely affects the prospects of success in the prospective proceedings, or a statutory threshold which must be proved once proceedings have been instituted. In a case where s 138AB applies, there is no liability until there has been either agreement or a determination as to the degree of permanent impairment: Skilled Engineering. The cause of action could not be discoverable until s 138AB has been satisfied and fulfilment of s 138AB is a key factor necessary to establish legal liability. The authorities support the proposition that, for a person to be in a situation where he or she knows or ought to have known that personal injury was sufficiently significant to warrant bringing proceedings, they would have to know (or be in a position where they ought to know) that the injury in question is one for which they may institute proceedings: see Beazley JA in Gillett at [70]-[71] and Campbell JA at [131] considering s 50D(1)(c), the equivalent definition to s 2(c). In the words of Campbell JA in making additional observations, "knowledge of actionability is necessary before s50D(1) (c) is satisfied", at [131]. These additional observations attracted the agreement of McColl JA, Young JA and Whealy JA.
In Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19, the Court of Appeal of Western Australia rejected an argument to similar effect regarding the equivalent section to s 138AB (s 93K(4) of the Workers Compensation and Injury Management Act 1981 (WA)). However, that case is clearly distinguishable for the reason identified by Porter J in his analysis. The effect of the equivalent provision was held by the Court of Appeal not to extinguish the cause of action. It was observed by that Court that cases where the limitation period expires before the requirements of the workers compensation legislation were complied with should be rare. I note that such cases will be more frequent in Tasmania, given the more generous time limits under the Tasmanian Workers Rehabilitation and Compensation Act, which means that the process may be more prolonged than under the Western Australian Act.
The observations I have made regarding the implications of s 138AB for par (c) were not the focus of submissions and I decline to express a concluded view. However, it is worth drawing attention to the fact that the observations do not detract from Porter J's analysis regarding s 5A and the implications of s 138AB in that context. Assuming the correctness of his Honour's analysis, a consideration of s 138AB and the fact that the degree of permanent impairment had not been agreed or determined would not, practically speaking, ever arise in an evaluation pursuant to par (c). There would be no need to resort to the date of discoverability definition provision because s 5A would not have any operation at all until the cause of action had accrued.
As a final observation relevant to the analysis of s 5A, it might be said that the matter I have mentioned concerning par (c), and the flexibility of its terms and its accommodation of s 138AB, is a further indication that an accrued cause of action is an essential precursor to the commencement of the period of limitation in s 5A(3)(a).
I agree that the second ground of appeal, being the substantive ground, has been made out.
In relation to the date of the agreement issue, I find myself in agreement with the conclusion reached by Porter J and I am not persuaded that the trial judge's conclusion that an agreement was not reached until February 2010 was incorrect. On this issue, I wish to make some comments of my own.
There are a number of issues that arise regarding the construction of s 138AB. One of the questions is whether an assessment pursuant to s 138AB(3), to be carried out in accordance with s 72, is a statutory procedure that applies regardless of whether there is agreement regarding the degree of the worker's impairment, or whether it only applies in the context of disputes requiring a determination by the Tribunal. The subsection is expressed in general terms, applicable to both agreements and determinations. By contrast, other subsections expressly refer to disputes. Further, the structure of the section as a whole suggests that subs (3) applies to both agreements and disputes. The section, at the relevant time, was in the following terms:
"138AB Election to claim damages
(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against an employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%.
(3) An assessment of the degree of the worker's impairment is to be carried out in accordance with section 72 or 73.
(4) An election is to be in a form approved by the Tribunal.
(5) An election is to be lodged within 2 years after the date on which the claim for compensation is given to the employer of the worker, or person designated by the employer, under section 34.
(6) The Tribunal may extend the period within which an election is to be made if —
(a) there is a dispute as to the level of the worker's impairment; or
(b) the injury is not stable and stationary.
(7) If there is a dispute as to the degree of impairment, the worker may apply to the Tribunal for a determination of the degree of impairment.
(8) An application under subsection (7) is to be —
(a) accompanied by evidence from a medical practitioner that he or she is of the opinion that the degree of impairment is not less than 30% of the whole person; and
(b) made not less than 21 days before the expiration of the period referred to in subsection (5).
(9) If the Tribunal determines the degree of impairment to be not less than 30% of the whole person, the worker is to lodge his or her election within 21 days after the determination.
(10) The Tribunal may refer the question of the degree of impairment to a medical panel in accordance with Part V.
(11) An election to claim damages does not preclude a worker from receiving compensation under this Act.
(12) This section does not apply to proceedings taken by a personal representative or dependant of a worker who has died as a result of an injury for which compensation is payable under this Act."
It can be seen that the sequence of the subject matter moves from general matters to matters specific to disputes: elections requiring agreement or a determination (subs (2)), assessments (subs (3)), elections (subss (4), (5) and (6)), applications to the Tribunal in the event of disputes and requirements for applications in the event of disputes and evidentiary support with respect to disputes (subss (7) and (8)). The fact that subs (3) falls within the earlier part of the section dealing with matters generally, suggests that it applies to agreements as well. I consider Parliament envisaged that there would not be an agreement without an assessment pursuant to ss 72 or 73.
It makes sense that Parliament intended that, in the case of both agreements and determinations, there should be an assessment. There is otherwise an unfair or arbitrary consequence for workers, turning on the idiosyncratic attitude of an employer and what they may be prepared to agree. Further, the purpose of the section is to bar proceedings for damages in cases where the degree of impairment suffered by the worker is in fact not less than 30%, rather than merely agreed by the employer to be so, whether it is or not. It is consistent with the purpose of the section that, objectively, it should be established that the worker had suffered an impairment of not less than 30%.
I conclude that it was intended by Parliament that an assessment would be obtained in all cases and subs (3) should be read as a general requirement. In consequence, s 72 applies in this case. The assessment is to be undertaken by a medical assessor in accordance with s 72. I note that there is no evidence that in 2008, or for that matter at any other time, Professor Stark was a medical assessor as defined in s 3 of the WRC Act. The consequences of any failure to comply with s 72, and whether it would render an election invalid, is a matter of statutory interpretation and a task of divining the intention of Parliament: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] and [93]. It is not a matter that I have reached a concluded view about or that needs to be determined for the purpose of this appeal.
Another matter concerning the construction of s 138AB is whether subs (2) requires that the agreement is that the degree of permanent impairment was a particular percentage, rather than merely a percentage of not less than 30%. It was submitted on behalf of Allianz that it was not to the point that there was no evidence of agreement that Mr Mercer's degree of permanent impairment was any particular percentage. I must agree. In my view, subs (2) does not require an agreement as to a particular percentage. The words of subs (2) are clear. It is sufficient if agreement is reached, or a determination made by the Tribunal, that the degree of the worker's permanent impairment is a percentage of the whole person of not less than 30%.
In submissions the appellant contended:
"Section 138AB does not impose any formal requirements on the 'agreement' to which it refers. In the present case, the Appellant never disputed and had accepted by early September 2008 that the Respondent's degree of impairment exceeded 70%. In the circumstances, and particularly given it paid a sum of money that both parties knew was only payable if the Respondent's degree of impairment exceeded 70%, the trial judge ought to have found that by early September 2008 they had reached an 'agreement' for the purposes of s 138AB."
Further, it was submitted that the letter of 3 September 2008, from Allianz to Mr Mercer's solicitors, amounts to an express agreement satisfying the requirements of s 138AB. The letter is in the following terms:
"We refer to your letter of 25 July 2008 and enclose our cheque totalling $200,040.43 in settlement of your client's entitlement pursuant to Section 71 of the Act which is equal to the maximum sum being 369 units less the ten percent Advanced Payment …"
On the same day, the solicitors for Allianz wrote to Mr Mercer's solicitors in terms that:
"We confirm that our client has agreed to pay to Mr Mercer the sum of $222,267.15 in satisfaction of Mr Mercer's entitlement to a lump sum payment pursuant to Section 71 of the Act."
In my view, the resolution of the question of whether there was an agreement for the purpose of s 138AB turns on a simple, but compelling point. The payment in 2008 and the relevant correspondence falls short of an agreement as required. An agreement to pay "a sum in satisfaction of Mr Mercer's entitlement to a lump sum payment under s 71" is not to be equated with an agreement that Mr Mercer in fact has a degree of permanent impairment for the purpose of s 138AB. The observations made by the trial judge are pertinent in this context. As stated at [14], the payment may have been made in 2008 to avoid getting involved in a dispute or to avoid putting Mr Mercer to proof. Further, as noted by Porter J at [137], Allianz paid the full s 71 entitlement on the basis of the information it had at that time and when the injury was not stable and stationary.
If Allianz had addressed the question of s 138AB when the s 71 payment was made in 2008, I have no doubt that its expectation would then have been that, when the time arose to consider that question, there would almost certainly be no dispute that the threshold of 30% impairment had been met. But that is not the same thing as an actual agreement for the purpose of s 138AB. The section clearly requires more than a lack of dispute about the impairment, as evident from the plain words of the statute: "the degree of his or her permanent impairment is agreed by the worker and the employer", s 138AB(2), and the reference to "agreement" in s 138AC. If the intended dichotomy was a determination by the Tribunal or a lack of dispute as to the threshold impairment, then Parliament would have reflected that in the terminology used.
There is nothing that occurred later to suggest that an agreement for the purpose of s 138AB had been reached in 2008, or that the parties regarded their correspondence at that time as giving rise to an agreement. In fact, the election form ultimately signed on behalf of the worker and employer in 2010 suggests that the signed form is the agreement. This pro forma document approved by the Tribunal has the heading:
"ELECTION TO COMMENCE PROCEEDINGS FOR DAMAGES
(Section 138AB)
Degree of permanent impairment agreed by Employer".
The form provides that the worker has been assessed "in accordance with an assessment conducted pursuant to Section 72 and 73 of the Act" as suffering a permanent impairment, with space for the percentage impairment of the whole person as assessed to be inserted and for the election form to be signed by both the worker and the employer. The form was completed and the words "not less than 30" inserted, as the percentage impairment, and it was signed by the solicitors for Mr Mercer and Allianz.
Significantly, the letter from the solicitors for Allianz dated 26 February 2010 was in the following terms:
"We refer to your letter dated 24th February 2010 and advise that we have been provided with instructions on behalf of the employer by virtue of Allianz Australia Insurance Limited to agree that Mr Mercer suffers from a whole person impairment of not less than 30%."
It was argued on behalf of Mr Mercer that this was when the agreement in relation to s 138AB was struck. It seems clear that the parties regarded the signing of the election form in 2010 as the agreement. The reaching of an agreement in those terms was no doubt shaped by the wording of the pro forma document, but that does not detract from the finding of the trial judge. The correspondence from Mr Mercer's solicitors indicated that if the election was not signed on behalf of the employer, they would apply to the Tribunal "on the basis that the degree of impairment has been agreed by the fact of payment". That position is entirely consistent with an expectation reasonably held by Mr Mercer that the threshold impairment of at least 30% would not be disputed, given the past conduct of Allianz in making the s 71 payment. As I have said, that expectation is not to be equated with an agreement reached by Mr Mercer and Allianz. The letter is an exercise in persuasion, foreshadowing a legal argument that such conduct, in making the payment, amounts to an agreement for the purpose of s 138AB. In my view, it does not undermine the conclusion of the trial judge that an agreement for the purpose of s 138AB had not been reached until February 2010.
I am unpersuaded that the trial judge's finding about the timing of the agreement was in error.
84
34
2