Barwon Spinners Pty Ltd & Ors v Podolak
[2005] VSCA 33
•25 February 2005
SUPREME COURT OF VICTORIA COURT OF APPEAL
| BARWON SPINNERS PTY LTD & ORS | No. 3774 of 2003 |
| v | |
| PODOLAK | |
| ST. LAURENCE COMMUNITY SERVICES (BARWON) INC & ORS | No. 3776 of 2003 |
| v | |
| GLEDHILL | |
| STOJANOVSKI | No. 3759 of 2003 |
| v | |
| BARTTER ENTERPRISES PTY LTD & ORS | |
| PAUSAK | No. 3760 of 2003 |
| v | |
| BARWON HEALTH & ORS |
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JUDGES: | ORMISTON, CHERNOV & PHILLIPS JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18, 19 & 20 October 2004; 7, 8, 9 & 10 February 2005 | |
DATE OF JUDGMENT: | 25 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 33 | |
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Accident compensation – Work-related injury – Worker’s application for leave to sue employer at common law – Injury to be linked to “employment on or after 20 October 1999” – Need to identify nature and extent of relevant injury so linked – Whether “serious injury” as defined – “Permanent serious impairment of body function” – Meaning of “permanent” – “Serious” according to consequences of economic loss or pain and suffering – Need to separate psychological and psychiatric consequences – Statutory prescription for calculation of economic loss – Onus of proof as to rehabilitation and retraining – Whether employability relates to job opportunities – Accident Compensation Act 1985 s.134AB.
Courts – Appeals - Accident compensation - Appeal from County Court after “serious injury” determination in respect of possible common law proceeding – Appellate court directed to “decide for itself” the issues on appeal – Meaning and effect – Nature and extent of appellate function – Accident Compensation Act 1985 ss.134AC, 134AD.
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| APPEARANCES: | Counsel | Solicitors |
| In Proceedings No. 3774 & 3776 | ||
| For the Appellants | Mr J.H.L. Forrest QC with Mr P.H. Solomon | Wisewoulds |
| For the Respondent | Mr C.M. Maxwell QC with Mr P.G. Misso | Petersons |
| In Proceedings No. 3759 & 3760 | ||
| For the Appellant | Mr C.M. Maxwell QC with Mr P.G. Misso | Petersons |
| For the Respondents | Mr R.P. Gorton QC with Mr P.H. Solomon | Wisewoulds |
________________________________________________________________________________________
VICTORIAN GOVERNMENT REPORTING SERVICE 9603 2404
2nd Floor, 565 Lonsdale Street, Melbourne
PHILLIPS, J.A. for the Court (ORMISTON, CHERNOV and PHILLIPS, JJ.A.):
The Court has before it four appeals that were listed to be argued together last October. The first, Barwon Spinners v. Podolak, occupied three days in argument largely because some problems thought to be common to all four were explored, but that left no time for the other three cases to be heard. Accordingly they were adjourned to a date to be fixed. Fortunately, arrangements were able to be made for those other three cases to be argued before the same Bench as was originally intended and argument was heard earlier this month. This judgment now deals with all four cases. Each of the four appeals is against a determination in the County Court in a proceeding brought by a worker under s.134AB of the Accident Compensation Act 1985 (“the Act”), seeking the leave that was a necessary precondition in the circumstances to the institution of a common law proceeding against the employer for damages for personal injury. In two of the four cases the plaintiff succeeded below in establishing “serious injury” and obtaining leave accordingly, and the defendants now appeal; in the other two cases, the plaintiff failed below and is now the appellant. All four appeals are as of right: see s.134AC.
Introduction
The legislative provisions with which all four appeals are concerned are comparatively new. Nearly five years ago, Parliament enacted s.134AB in order to re-introduce the right of a worker to seek common law damages for serious injury which was work related. The background to the new provisions was explained thus by the Minister in the Second Reading Speech[1]:-
[1]Hansard, Legislative Assembly, 13 April 2000, at p.1001.
"The entitlement of injured workers to obtain damages at common law was removed by the former government on 12 November 1997 under the Accident Compensation (Miscellaneous Amendment) Act 1997. Only workers injured prior to 12 November 1997 retained the right to seek common-law damages.
The former rights, which were removed, provided access to common law by a requirement that the compensable injury be a serious injury. The test of serious injury was satisfied by a worker having a 30 per cent or greater permanent impairment as a result of compensable injury assessed according to the American Medical Association, Guides to the Evaluation of Permanent Impairment, second edition – the AMA Guides, second edition. On the 30 per cent test being satisfied a worker was deemed to have a serious injury and entitled to bring proceedings for common-law damages. A worker with a whole-person-impairment determination of less than 30 per cent had an entitlement to make an application to the Victorian Workcover Authority [for a certificate] that the injury was a serious injury or alternatively make an application to the court seeking leave to bring proceedings on the basis that the injury satisfied the narrative test of serious injury. The narrative test examined the effect and consequences of the injury on the worker. The narrative test for serious injury in section 135A of the Accident Compensation Act 1985 contained a definition of ‘serious injury’, meaning:
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.
The bill seeks to restore common-law rights for seriously injured workers who satisfy the former deeming test of 30 per cent or greater whole-person impairment which will now be assessed in accordance with the AMA Guides, fourth edition, and in the alternative, for workers who satisfy the narrative test of serious injury proposed by this bill. The government sees the deeming test to be the main gateway for access to common-law rights.”
Thus, for a worker with a whole-person-impairment determination of less than 30 percent, it was necessary for the worker either to obtain a certificate from the Victorian WorkCover Authority (“the Authority”) that the injury was a serious injury or alternatively obtain the leave of the court, and to obtain the leave of the court the worker had to satisfy what the Minister dubbed “the narrative test” for serious injury in s.135A.
When s.134AB was enacted, significant changes were made to that “narrative test”. The reason, it was said, was to contain costs. According to the Minister, the previous narrative test had given little guidance on what was meant by serious injury and the courts had been left, in effect, to develop the meaning of the test. In the result, it was claimed, there had been “a rapid increase in the number of common law claims over the actuarial estimate …”. The Minister continued:-
"The commitment of this Government to restore common law rights to seriously injured workers has an equal commitment to ensure that the costs of the restoration of common law rights are confined and the number of common law claims and the cost of those claims can be actuarially measured in a reasonably predictable manner. In order to achieve the objectives of government in relation to the restoration of common law rights, the former narrative test of serious injury has been altered in a number of respects: firstly with the intention of defining the meaning of serious injury; and secondly, with the intention of excluding the economic loss basis on which certain types of applications were successful ...”.
In broad terms, that explains the intent of s.134AB. On examination, it is apparent that in the new section Parliament constructed a number of very significant hurdles.
Section 134AB
As before, the new section commences in sub-s.(1) with what is in form a prohibition. Subsection (1) reads, so far as presently relevant :-
“A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 -
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except - . ..
(iii). . . as permitted by and in accordance with this section; and...”
(b)shall not, in proceedings in respect of the injury, recover any damages for pecuniary loss except - . ..
(ii) . . . as permitted by and in accordance with this section; and...”
The notion of “serious injury”, which in one way or another is the gateway to bringing a common law proceeding to recover damages for work-related injury, is then introduced by sub-s.(2), which at the relevant time read:-
"A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999.”[2]
[2]By Act No. 95/2003 s.3(8) the words “if employment of that nature was a significant contributing factor, and” were omitted as from 3 December 2003, but that was well after the injuries relied upon by the plaintiffs in these four cases.
These introductory provisions set the scene for what follow – a complicated set of detailed provisions intended to regulate and in some ways to restrict the bringing of common law proceedings for damages for work-related injury. The overall scheme is much as it was in earlier days when such proceedings were permitted: as the Minister foreshadowed, the bringing of a common law proceeding still depends upon an impairment assessment of more than 30 per cent of the whole body (under the A.M.A. Guides), in which case the worker is deemed to have suffered a serious injury (sub-s.(15)); or a certificate from the Authority consenting to the bringing of the proceeding, which may issue only if the Authority is satisfied that the injury relied upon is a serious injury (sub-s.(16)(a)); or the leave of the Court, which cannot be given unless the Court is satisfied on the balance of probabilities that the injury is a serious injury (sub-ss.(16)(b) and (19)(a)).
That is the scheme in broad outline only, for on occasion variations are provided for. For example, it is now required that the worker not proceed at all without first seeking an assessment of the degree of impairment[3] and, if the Authority does not respond in timely fashion to the worker’s application for assessment, the latter is deemed to have suffered a serious injury: see sub-ss.(3), (4), (7) and (9).[4] That is a mere variation on the overall scheme which, as described, is in extrapolation of the introductory permission granted in sub-s.(2) by reference in particular to serious injury.
[3]Contrast the position that existed when Hanrahan v. Davis [1997] 1 V.R. 285 was decided.
[4]Although the drafting of sub-s.(4) is not altogether clear.
Before proceeding further with the detail of s.134AB, we mention one argument of the parties affecting the meaning and application of the section as whole. First in connection with the argument being put on the plaintiff’s appeal in Stojanovski and then more directly in relation to the defendants’ appeal in Gledhill, Mr. Maxwell submitted that when injury was suffered to which employment was a contributing factor over a period of time spanning the months, if not the years, both before and after 20 October 1999, it was enough to bring the worker within s.134AB if the impairment to a bodily function (which was said to arise from that employment) was impairment which “arose on or after 20 October 1999” within the meaning of sub-s.(2); for that subsection (he said) was enough in itself, without the need to refer at all to sub-s.(1), to authorise a common law proceeding and to direct the worker to the succeeding provisions of the section (which in the case of these appeals meant sub-s.(16)(b) in particular). Alternatively, if sub-s.(1) had to be referred to, that subsection should be read and construed consistently with sub-s.(2), so as to refer to injury arising on or after 20 October 1999 rather than to employment on or after that date, and, moreover, as referring to the consequent impairment rather than the underlying injury.
Certainly, sub-s.(2) is enough in itself to refer the reader to all that follows in the section, including sub-s.(16)(b); as already indicated, it is sub-s.(2) that serves to introduce the notion of “serious injury” and to that extent it is therefore the obvious preface to the detail that follows. But that does not mean that sub-s.(1) can be ignored, and we shall return to that in moment. As the matter was argued, however, Mr. Maxwell took the last point first, contending that the consequent impairment, not the underlying injury, was the only concern of sub-s.(2) and, as we followed him, of sub-s.(1) too. In those subsections (he said) “injury” did not mean some physiological change to a body part, but rather the impairment of the body function by which alone the individual plaintiff (and in particular Mrs. Gledhill) sought to establish “serious injury”.
In essence Mr. Maxwell’s argument ran thus. Section 134AB deals with common law proceedings and then only in respect of serious injury; “serious injury” is defined as meaning, relevantly, the impairment of a body function; and, as the definition is not inclusive but exhaustive, the word “injury” has to be similarly understood in sub-ss.(1) and (2). After all, if the injury is not “serious injury” as defined, leave to bring a proceeding is to be refused under sub-s.(16)(b): sub-s.(19)(a). In answer, Mr. Forrest submitted that this was to turn the statute on its head: the concept of “injury” was well understood as meaning some physiological change to a body part and that was how the word was consistently used throughout the statute. Moreover, there was nothing difficult in the requirement that the injury be serious injury (as defined) before leave could be granted: that meant quite simply that the physiological change to the body part had to be seen, relevantly, as productive of an impairment to a body function before the injury could be characterised as serious injury. So analysed, there were two steps involved not one, Mr. Forrest said, and we agree, at least in respect of sub-s.(1).
In short, in sub-s.(1) we see no reason at all to conclude that “injury” is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act. Mr. Maxwell’s other argument in relation to sub-s.(1), in an effort to bring it more clearly into line with sub-s.(2), was this: that the expression “on or after 20 October 1999”, although in form attached to the concept of “employment”, apparently as a qualifying adjective, should be read as attached to the word “arising” and accordingly as qualifying the whole of the phrase that precedes it. If the former, sub-s.(1) speaks only of injury linked to employment on or after the given date; if the latter, it speaks of injury arising on or after the given date linked to employment whenever occurring. The latter, said Mr. Maxwell, was in line with sub-s.(2), but the former was not.
Again this is to have the tail wag the dog. As we read it, s.134AB, and in particular sub-s.(1), is concerned only with injury linked to employment on or after the given date, an opinion which is very plainly confirmed by both the legislative history and the larger context in which s.134AB now appears. As Buchanan, J.A. pointed out in Wilson v. State of Victoria[5], there is now a series of sections dealing with injury in employment at different times. His Honour said:-
“Actions for damages for injuries arising out of or in the course of employment at particular times are subject to different rules. Actions for damages for injuries arising from employment before the appointed day are governed by common law rules. Actions for damages for injuries arising from employment between the appointed day and 12 November 1997 are governed by the provisions of s.135A. Actions for damages for injuries from employment between 12 November 1997 and 20 October 1999 are regulated by the provisions of s.134A. Actions for damages for injuries arising from employment after 20 October 1999 must comply with the provisions of s.134AB, which sets out an elaborate system of medical assessments and exchange of medical reports and offers of settlement. In my opinion, an applicant for leave pursuant to s.135A is required to establish that he sustained an injury to which the provisions of the section, not those of another regime, apply.” [Emphasis added]
[5][2004] VSCA 55 at [16].
Thus, the present s.134A proscribes the recovery of damages for injury arising out of or in the course of or due to the nature of employment between 12 November 1997 and 20 October 1999. As first enacted, s.134A was open-ended. There was no cut-off date; it related in terms to injury in employment after 12 November 1997. This was the general proscription of common law proceedings enacted by the Kennett Government and which the later government was moved to qualify. It did this by adding in s.134A[6] an end date (namely, 20 October 1999) to the proscription otherwise enacted there, at the same time enacting the new s.134AB[7] to deal with injury linked to employment on or after 20 October 1999. In the new section, the form adopted was similar to that of the earlier proscription, in that s.134AB commenced with a like proscription on the recovery of damages arising out of or in the course of or due to the nature of employment on or after 20 October 1999, albeit that that proscription was promptly made subject to the long and complicated set of exceptions that followed, centred on serious injury. The essential pattern was thus continued without a break: in respect of injury linked to employment on and after 12 November 1997 recovery of damages at common law was proscribed, albeit that in respect of injury linked to employment on or after 20 October 1999 there were now substantial exceptions. The obvious regularity of this pattern would be disturbed if the date 20 October 1999 were to be detached in s.134AB from “employment” and attached instead to “injury arising”. It seems to us very clear that while the later government was willing to reinstate a limited right to common law proceedings for work-related injury, it deliberately chose not to alter or modify the proscription on common law proceedings for injury linked to employment before 20 October 1999, preferring instead to ease the position only in respect of future employment.
[6]By Act No.26/2000, s.21.
[7]See s.18.
With that established, sub-s.(1) is seen to be dominant; it is truly a preface to all that follows in s.134AB, including sub-s.(2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description “serious injury” if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s.134AB addresses - first, in prohibiting a common law proceeding for damages in respect of it “otherwise than as permitted by and in accordance with this section” and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with sub-s.(2) which, though essential, is a part of the overall scheme: it does not exist independently of it.
That is why Mr. Maxwell’s attempt to rely upon sub-s.(2) independently of sub-s.(1) fails. In our opinion, properly construed, sub-s.(2) authorises the recovery of damages only in a case which is otherwise subject to the prohibition in sub-s.(1). As Mr. Forrest put it, the second is but a subset of the first – and indeed so much appears to have been accepted by the plaintiffs themselves. For example, in her originating motion Mrs. Gledhill was seeking leave to bring a proceeding against her employer for “personal injuries suffered during the course of her employment . . . on very frequent occasions between the 20th October 1999 and approximately 27th April 2001” (our emphasis). Such wording follows the natural and ordinary meaning of what appears in sub-s.(1). It is true that the concluding words of sub-s.(2), “arose on or after 20 October 1999” do not appear to reflect – or do not reflect exactly - the reference in sub-s.(1) to “employment on or after 20 October 1999”, but it is not impossible to reconcile the two; indeed, the particular expressions used in both subsections might be found to owe a good deal to earlier models, such as s.135A (both before and after its amendment). Perhaps, as Mr. Maxwell submitted, in sub-s.(2) the words “an injury” and “the injury” should be taken as referring to the impairment or loss of a body function by which (in cases like these) the injury is seen to be serious injury, and the concluding expression (“arose on or after 20 October 1999”) as qualifying “serious injury” rather than “the injury”; but none of this needs to be explored now, as sub-s.(2) does not pose a problem on these appeals. It is enough on any application under s.134AB(16)(b) for leave to bring a common law proceeding to show that the injury relied upon is injury within the ambit of sub-s.(1) and that it is serious injury as defined.
Serious injury as defined
We turn now to the rest of s.134AB, as it applies to a case in which the worker must seek the leave of the court under sub-s.(16)(b) before bringing a common law proceeding. As was so under the previous system, sub-s.(16) is the gateway provision under which the court becomes involved, leave being forbidden (by sub-s.(19)(a)) unless the court “is satisfied on the balance of probabilities that the injury is a serious injury” as defined by sub-s.(37). There is a further qualification in sub-s.(17). If a worker establishes that the injury is a serious injury by reference only to consequences of pain and suffering, the worker is entitled in any common law proceeding to “recover damages for pain and suffering only”. That is new.
It is not necessary for present purposes to deal in any detail with the provisions immediately following sub-s.(19). Some ameliorate earlier constraints; others limit the damages that may be recovered or otherwise regulate the trial of a common law proceeding; and some deal with costs. These four appeals are concerned more particularly with sub-ss.(37) and (38) which regulate, in very specific terms, what must be proved in order to establish “serious injury” on an application for leave under sub-s.(16)(b).
First, the expression “serious injury” is defined by sub-s.(37) thus:-
"’Serious injury’ means –
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.”
This is very similar to its predecessor (as described in the Second Reading Speech). The only change is in paragraph (a) where the expression “long-term” has been replaced by the word “permanent” and the order of the adjectives has been reversed[8]. It is only paragraph (a) with which we are directly concerned on these appeals.
[8]See paragraph 2 above and compare s.135A(19).
Before us counsel were agreed that “permanent” meant “likely to persist in the foreseeable future”, as per Woodward, J. in McDonald v. Director-General of Social Security[9], an opinion adopted by McDonald, J. in AMP Workers’ Compensation Services v. Chalkley[10] (compare Ajinvan Pty Ltd v. Fry[11]). It is true that the context in McDonald was very different from that here, in that there the question was the worker’s qualification for an invalid pension under the Social Security Act 1947 (Cth) s.24, for which the applicant had to be “permanently incapacitated”, and the position was reviewable. (In that case the position was initially to be reviewed after 12 months.) But if Woodward, J. meant, not “likely to last into the foreseeable future” but “likely to last for, during or through the foreseeable future”, it seems that the Minister would agree; for he said in the Second Reading Speech[12]:-
“The definition of serious injury contains a new concept in respect of the qualifying period for a consequence of an impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder to be found to be serious. Previously, it was a time period which satisfied the requirement of being long-term. In Humphries v. Poljak, the majority of the full court did not express a view on the meaning of the phrase ‘long-term’. It said ‘long-term’ was not an expression likely to give rise to difficulty. The absence of guidance as to the meaning of long-term has, however, given rise to ambiguity in application and this has been compounded by the medical and legal professions having a different approach to the meaning to be given to the term. The expression ‘long-term’ has been removed from the new test and the word ‘permanent’ has been inserted by way of substitution. This is intended to reflect the view of government that a serious consequence is one which is permanent, meaning indefinitely for the foreseeable future.” [Emphasis added]
[9][1984] 1 F.C.R. 354 at 360.
[10][1998] VSC 29.
[11][2001] 3 V.R. 644 at 651.
[12]Hansard at p.1002.
As we read it, the word “permanent” in the definition of “serious injury” in s.134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair – or at least not to any significant extent. It is perhaps unfortunate that Parliament saw fit to replace the expression “long-term” (which caused no difficulty) with the word “permanent” (which might); for “permanent” is already used elsewhere in the statute (for example, in ss.91 and 104B(5)(a)) in conjunction with the concept of “impairment of the whole person”, with the sense attributed to it by the A.M.A. Guides. Those Guides, called more fully the “Guides to the Evaluation of Permanent Impairment”, declare that for assessment purposes –
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment, or that is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.
If an impairment is not permanent it is inappropriate to characterize it as such and evaluate it according to Guides criteria.”
Plainly this is permanent as specially defined; it is not the sense in which it appears in the definition of “serious injury” where it is linked to words other than merely impairment. Accordingly some care is necessary when using medico-legal opinions concerning permanency; while helpful, their utility is often diminished upon discovering that the word permanent has been used by the writer according to the Guides. We shall come back to the word “permanent” after canvassing the opening paragraphs of sub-s.(38), dealing with consequences.
Subsection (38)
Sub-section (38) of s.134AB is altogether novel. So far as presently relevant, it makes elaborate provision for what must be shown in order to establish that impairment or loss of a body function is “serious” within the meaning of the phrase “permanent serious impairment” in paragraph (a) of the definition of serious injury in sub-s.(37). It does this by reference only to the consequences to the plaintiff of the relevant impairment or loss, paragraph (b) serving to confine attention exclusively to pain and suffering (which by definition includes loss of enjoyment of life) and loss of earning capacity. Paragraph (b) - which in fact deals with the first three paragraphs of the definition of serious injury - reads thus:-
"(b)the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder, as the case may be, with respect to-
(i) pain and suffering; or
(ii) loss of earning capacity-
when judged by comparison with other cases in the range of possible impairments or losses of a body function [or] disfigurements or mental or behavioural disturbances or disorders, respectively”.
Paragraph (c), dealing with paragraphs (a) and (b) only of the definition of serious injury, reads:-
“(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable”[13].
In weighing the consequences of an impairment or loss of a body function, any psychological or psychiatric consequences of the physical injury are to be excluded from consideration[14]. Paragraph (d) of sub-s.(38) (which is not directly relevant here) deals with mental or behavioural disturbance[15]; it provides that such is not “severe” unless the relevant consequences are “more than serious to the extent of being severe”[16]. Thus, all three paragraphs (b), (c) and (d) build on the definition of serious injury in sub-s.(37) and in conjunction with that definition they constitute the so-called narrative test of which the Minister spoke in the Second Reading Speech. That test was the central point of the argument on the four appeals before us.
[13]The wording is derived directly from the majority judgment in Humphries v. Poljak [1992] 2 V.R. 129 at 140.
[14]See sub-s.(38)(h).
[15]Including any physical consequences of the mental or behavioural disturbance or disorder: see sub-s.(38)(i).
[16]Wording which is again derived directly from the majority judgment in Humphries v. Poljak.
As to loss of earning capacity in particular, paragraph (e) makes further detailed provision, directing the court not to grant leave to commence a common law proceeding “unless the worker establishes, in addition to the requirements of paragraphs (c) and (d)”, that[17] –
[17]Although paragraph (e) makes special provision for workers under 26 years of age and in Stojanovski the plaintiff was only 25 at the time of the incidents relied upon, that fact was not mentioned in argument. The special provision had no significance because the plaintiff abandoned on appeal any reliance upon economic loss.
(i)at the date of the hearing of the application to the court “the worker has a loss of earning capacity of 40 per cent or more”, measured “as set out in[18] paragraph (f)”; and
(ii) the worker “will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.
This “new concept of a 40 per cent threshold” was said by the Minister, in the Second Reading Speech, to provide “an objective criterion of a loss of earning capacity”[19]. In explanation, the Minister said that -
"… this objective standard is within the range which the Full Court found in Petkovski v. Galletti 1994 1 V.R. 436 to be very considerable. There the Full Court considered a fact situation where the reduction in working hours was from about 40 to between 25 and 20. The Full Court said that such an interference with working capacity may fairly be regarded as a serious consequence.”
Now, however straightforward it may be to calculate a financial loss of 40 per cent or more when what is at stake is a reduction in working hours, the argument on these appeals has demonstrated how difficult it can be to calculate the extent of the loss, in the required terms, when what is at issue is employment in areas quite different from those in which the worker was engaged at the date of the relevant injury.
[18]In Reprint Nos. 11, 12 and 13, the notation “(i)” intrudes at this point, apparently by a typesetter’s error. It is ignored above.
[19]Hansard at p.1003.
Moreover, while it might have been thought that the easiest way to determine relevant economic loss would be to compare what was being earned by the worker before injury with what could be earned after injury, the loss of earning capacity is now to be “measured ... as set out in paragraph (f)” - and paragraph (f) is far more sophisticated. It requires a comparison of two things which may be called, shortly, after-injury earnings and without-injury earnings. The first is described as:
“the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date [being the date of the hearing of the application before the court]”
and the second, as -
“the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion ..., had the injury not occurred”.
The latter, without-injury earnings, are to calculated by reference to “that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity”, had there been no injury. The Court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out “as most fairly reflects the worker’s earning capacity”. As it stands, that task is not inconsiderable.
With respect to after-injury earnings paragraph (f) speaks of the worker’s capacity to earn in “suitable employment”, and so does paragraph (g) which, in substance, directs the Court to bring to account, in addition to actual capacity, any capacity for employment which is, or would be, the result of rehabilitation or re-training. The term “suitable employment” is defined in s.5 in this way:-
“’suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
(a)the nature of the worker’s incapacity and pre-injury employment;
(b) the worker’s age, education, skills and work experience;
(c) the worker’s place of residence;
(d)the details given in medical information including the medical certificate supplied by the worker;
(e) the worker’s return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker;”
The concept of “suitable employment” will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to “work for which the worker is currently suited”. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as “suitable” if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing “suitable employment” for a worker resident in Melbourne. The expression “whether or not that work is available” emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is “suitable employment”, whether or not the job is currently available.
None the less, the definition of “suitable employment” was called in aid by Mr. Maxwell to support an argument that the concept of capacity to earn in employment involved employability and that a worker who had been injured at work and successfully claimed compensation was in practical terms unemployable. It appears from the evidence given below that there are now persons calling themselves expert in the area of “capacity to earn”, and in one or more of these four appeals the so-called expert opined that, given the injury and the consequent claim for compensation, no employer would be prepared to risk employing the worker again in any capacity, having regard to the possibility that further injury might be sustained and even that the employer itself might be prosecuted under safety regulations. The mere history of injury and claim would be enough (it was suggested) to deter any employer from offering further employment to the victim of antecedent workplace injury – and that suggestion was made, as we followed it, almost irrespective of the magnitude of the injury in question.
The possibility that, irrespective of the nature and extent of the injury first suffered, a worker becomes unemployable because of the subsequent claim for compensation, is troubling. On the one hand, it may be said to be a realistic approach to the possibility of further employment, which will lead to common law damages for those in our community who are the most vulnerable because of injury at work. On the other hand, the mere reference to “capacity for any employment” does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in paragraph (g) what is relevant, after considering rehabilitation or re-training or the possibility of rehabilitation or training, is -
"... a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion ...”.
In our opinion, the expression “if exercised” means “if exercised in employment”. Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained: it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment. Mr. Forrest pointed out that this was at least consistent with the definition of “suitable employment” which spoke of employment “for which the worker is currently suited (whether or not that work is available)”.
Accordingly, we would reject the argument that paragraphs (e) to (g) of sub-s.(38) are concerned with anything but the physical or mental capacity of the injured worker to work again. That appears consistent, too, with the expression found in paragraph (b) of sub-s.(38), and as well paragraph (c) – namely:-
". . . when judged by comparison with other cases in the range of possible impairments or losses of a body function etc. etc.”.
That describes an objective test, not a subjective one[20], and it supposes a wide spectrum of cases which, if the argument about non-employability by reason of the making of the claim were accepted, would be very significantly reduced – and reduced without sufficient justification.
[20]As pointed out in Humphries v. Poljak.
Next in relation to s.134AB(38), there is the question of onus of proof in relation to economic loss. Paragraph (e) expressly casts upon the worker the burden of establishing that he or she has, at the date of the hearing of the application, “a loss of earning capacity of 40 per centum or more” and that that loss will “continue permanently”. As we have seen, paragraph (f) then explains how to measure the loss and paragraph (g), in directing the court to bring to account the possibility of rehabilitation or re-training, reads, so far as relevant to onus of proof:-
"a worker does not establish the loss of earning capacity required by paragraph (b) [of sub-s.(38)] where the worker has or would have after rehabilitation or re-training ... a capacity for any employment ... which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion ... had the injury not occurred”.
Mr. Forrest urged that the burden of dealing with the possibility of rehabilitation or re-training within paragraph (g) rested on the worker, but that was disputed. Mr. Maxwell pointed to the difference in wording between paragraph (e), where the burden was expressly cast on the worker, and paragraph (g) where it was not, or at least not in express terms. If the two were to be equated, he asked rhetorically, why was the same formula not used in both? The answer, he submitted, was that it was not up to the worker to prove that he or she did not have or would not have after rehabilitation or re-training, a relevant capacity for employment; it was up to those who asserted the contrary to establish it.
We consider that Mr. Forrest’s submission is to be preferred. The burden of proving economic loss is expressly placed by paragraph (e) on the worker, and as the question of rehabilitation or re-training is but part of that larger issue, we think the better view must be that the onus remains on the worker even in relation to the matters canvassed by paragraph (g). Indeed sub-s.(19)(b) appears to provide so expressly. It reads: -
“For the purposes of subsection (16)(b) - ...
(b)for the purposes of proving a loss of earning capacity in accordance with sub-section (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.”
Accordingly, in our opinion the burden of proof under paragraph (g) of sub-s.(38) does not shift from the one upon whom the overall burden lies of proving the case for leave.
Having now dealt, however briefly, with the consequences (being consequences as to pain and suffering and economic loss) by which alone an impairment stands to be adjudged serious or not for the purpose of the expression “permanent serious impairment or loss of a body function” in paragraph (a) of the definition of serious injury in s.134AB(37), we return to the word permanent; for the proper construction of the phrase “permanent serious impairment” was much debated before us, the argument suggesting that there was some ambiguity lurking there. Now, there can be no doubt but that, if a relevant impairment of a body function is to answer the statutory definition, the impairment must be “serious” in the sense dictated by paragraphs (b) and (c) of sub-s.(38) – that is, the consequences of the impairment (and more particularly the consequences as to economic loss or pain and suffering) must be such as can be “fairly described as being more than significant or marked, and as being at least very considerable” (which we shall refer to as the “very considerable” test). But given that that is so, is it the impairment (as Mr. Maxwell tended to suggest) or (as Mr. Gorton submitted) the serious impairment which must answer to the description “permanent” if the statutory definition is to be satisfied? Indeed Mr. Gorton submitted that in the result the consequences, which were already required to meet the “very considerable” test, had to be permanent as well. That followed, he said, from the order in which the adjectives now appeared in the definition in paragraph (a) of sub-s.(37)[21].
[21]Contrast the specific reference in sub-s.(38)(e)(ii) to the 40% loss of income “continuing permanently” and the absence of any such express reference in relation to pain and suffering.
In some ways the debate seemed rather hypothetical. In practical terms, one can scarcely proceed to consider the consequences to the plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the plaintiff: are the consequences such that they satisfy the “very considerable “ test set forth in paragraphs (b) and (c)? Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the plaintiff such as to satisfy the “very considerable” test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the plaintiff relies to satisfy the “very considerable” test will be otherwise.
Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description “permanent serious impairment” if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the “very considerable” test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives – permanent and serious (as defined) - and beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.
Section 134AD
It remains to note that by paragraph (j) of sub-s.(38), the assessment of serious injury is to be made at the time the application is heard by the court. Again it was common ground before us that this refers, even on appeal, to the time when the application for leave to proceed is heard by the court at first instance. That that is so is borne out by the wording of s.134AD:-
"On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.”
Not only does s.134AD contrast, in terms, the hearing of the appeal and the making of the application at first instance, it also provides that the Court of Appeal must act upon the evidence before the judge at first instance “who heard the application”, at least in the main, and then limits the receipt of other evidence according to “any other Act or rules of court”. This brings into play the ordinary principles governing the receipt of further evidence by an appellate court, which are fairly well understood: for example, in Mobilio v. Balliotis[22] the Court was unanimous that further evidence would not be received of facts occurring after the hearing at first instance when those facts were of such a type as had already been brought to account, at least in prospect, by the judge below.
[22][1998] 3 V.R. 833.
The reference in s.134AD to the appellate court’s proceeding by reference to the evidence below confirms that the appellate court is making a determination of serious injury as at the time when the application was heard at first instance, though presumably, if the worker’s condition deteriorates significantly after the hearing at first instance and before the appeal, that might ground an application to receive fresh evidence. That need not be explored now; for while a further affidavit was filed by the plaintiff on one of these appeals, no reliance was placed upon it in argument. Suffice it for present purposes that the position will generally be as the Minister described it in his Second Reading Speech[23] :-
“Finally, the bill requires the Court of Appeal to decide for itself whether an injury is a serious injury on the evidence and other material before the judge who heard the application.”:-
[23]Hansard, at p.1005.
There is a more difficult aspect of s.134AD which it is convenient now to mention. First, s.134AC provides expressly that the decision on the application made at first instance shall not be taken to be a judgment or order in an interlocutory application for the purposes of appeal: compare Supreme Court Act 1986 s.17A(4)(b). That means that, whether the decision below is in favour of or against the worker, leave to appeal is not a prerequisite to instituting an appeal[24]. Whatever the result at first instance, the dissatisfied party may now appeal as of right. Then s.134AD declares expressly that the Court of Appeal “shall decide for itself whether the injury is a serious injury” and do so on the evidence below, subject to the reception of further evidence as already mentioned. The expression “decide for itself”, though simple enough in itself, is not easy to unravel.
[24]Compare Dodoro v. Knighting [2004] VSCA 217.
Certainly, s.134AD was seen by the Minister as making a change; for the Minister said of it in the Second Reading Speech[25]:-
“This effectively restores the task to be undertaken by a court of appeal to the principles established by Humphries v. Poljak [1992] 2 VR 129 at 140. There the Court followed the dicta of the majority as stated by the Full Court of the High Court in Warren v. Coombes (1979) 142 C.L.R. 531 p.552, ‘the duty of the appellate court is to decide the case – the facts as well as the law – for itself. In doing so it must recognise the advantages enjoyed by the judge who conducted the trial’.”
This led to a proposition before us that, in contrast to what this court had said in Mobilio, namely, that “in the absence of specific error the decision below will be set aside only if it is plainly wrong or wholly erroneous”[26], error below was now quite irrelevant on appeal. Mr. Maxwell, then counsel for the respondent-plaintiff, accepted that that was so in Podolak, and, despite some encouragement from the Bench to do otherwise, counsel for the defendants declined to disagree, perhaps influenced by the dual roles of counsel on these appeals. Nevertheless the proposition is wrong: it is too absolute. Error below is always significant on appeal (save only the appeal by rehearing de novo); for, obviously, unless affected by error the order below will not be disturbed. All that is arguably made irrelevant by s.134AD is the type of error commonly identified (by reference to House v. R.[27] and Australian Coal and Shale Employees’ Federation v. Commonwealth[28]) in appeals against the exercise of discretion[29].
[25]Hansard at p.1005.
[26][1998] 3 V.R. 833 at 841 per Brooking, J.A., at 858 per Phillips, J.A. and at 860 per Charles, J.A.
[27](1936) 55 C.L.R. 499.
[28](1953) 94 C.L.R. 621.
[29]On an appeal against the exercise of discretion it is not enough to differ in opinion as to the result; the exercise of the discretion below must be shown to have miscarried: for example, if the judge at first instance acts upon a wrong principle, allows extraneous or irrelevant matters to guide him, mistakes the facts or does not take into account some material consideration, or if the result is so unreasonable or so plainly unjust that the appellate court can infer relevant error though not otherwise identified specifically. Only then can the appellate court intervene: House v. R. 55 C.L.R. at 505.
Warren v. Coombes[30] was an action in negligence for personal injury arising out of the defendant’s driving of a motor car. The trial judge found that negligence was not shown and the Court of Appeal declined to interfere. The High Court, by majority, was concerned to establish that the appellate function included the drawing of inferences on established facts, thus entitling the appeal court in that instance to substitute for the finding below its own finding that the defendant had failed to take reasonable care in the circumstances, once it had so concluded. In their joint judgment Gibbs, A.C.J., Jacobs and Murphy, JJ. said[31]:-
“ … we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.” [Emphasis added]
Giving more precise context to these remarks, their Honours immediately added:-
“Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question.” [Emphasis added]
[30](1979) 142 C.L.R. 531.
[31]At 552.
Thus, Warren v. Coombes concerned specifically the appellate function in relation to the drawing of an inference of negligence and, if the inference was such as could be drawn by the appellate court on the findings below or otherwise on the evidence at trial, the mere fact that a difference of opinion emerged as to the proper inference was not to inhibit the discharge of the appellate function. That stood in marked contrast to the position on an appeal against an exercise of discretion, where it is well established that an appellate court will not interfere unless first satisfied that in some way the exercise of discretion miscarried below, in recognition of the fact that there is room for different opinions within the proper exercise of the discretion.
Humphries v. Poljak[32] was one of five appeals, heard together, concerning the similar gateway provision of serious injury in the Transport Accident Act 1986. The majority held that on such appeals the decision of serious injury or no was to be taken by the appellate court itself, subject to the usual constraints: that is, acting on the materials before the judge at first instance and recognizing “the advantages enjoyed by the judge who conducted the trial” of the issue at first instance. In a joint judgment, Crockett and Southwell, JJ. said of the appellate court[33]:-
“.. it is under no obligation (indeed it would be irrelevant) to examine the reasons given by the primary judge in order to ascertain whether he has fallen into any error of law in the course of reaching his decision. That is to say he may have taken into account irrelevant matters or failed to have regard to relevant matters. In fact, in a number of cases it is plain that error of this nature has occurred. Such error, however, is not to the point. This court must, as we have said, subject to the limitations we have defined, decide each application for itself.”
[32][1992] 2 V.R. 129.
[33]At 140.
Here, too, the Court was rejecting as inappropriate the test of error common to appeals against the exercise of discretion. This was made plain in the earlier passage of the joint judgment when their Honours adopted (with one qualification) the following passage in the judgment of Adam, J. in State Rivers and Water Supply Commission v. McIntyre[34]:-
“… the function of this Court, on appeal, is to consider for itself upon the evidence before the learned judge whether it is proper that the leave sought be granted. Its proper function on this appeal is not, I think, to determine whether the learned judge might properly have arrived at the decision which he did, but to consider for itself what was the proper order to have been made. In other words, this appeal involves as it were a rehearing de novo upon the material before the learned judge. Had the conclusions reached by the learned judge depended on credibility of witnesses and findings on disputed facts, other considerations would no doubt have arisen, but this is not such a case. We are in as good a position as the learned judge to arrive at a conclusion upon the affidavit evidence, which was not subjected to cross-examination.”
Crockett and Southwell, JJ. disagreed only with the expression “de novo”; for while the appeal was a rehearing, it was not a rehearing de novo. The appellant would ordinarily address first, the appeal was to be determined on the materials below and the decision was subject to the appellate court’s recognising the usual advantages, if relevant, enjoyed by the trial judge. Otherwise, the issue of serious injury was to be decided by the appeal court for itself. Again that does not mean that error was not relevant; what was irrelevant was the need to establish error of law or other error relevant to an appellate court’s interfering with an exercise of discretion.
[34][1965] V.R. 279 at 290.
In Mobilio the Court ruled that in the absence of specific error the decision would be set aside only if it was plainly wrong or wholly erroneous. Brooking. J.A., most plainly of all five judges, regarded the decision at first instance, of serious injury or no, as “a discretionary judgment or akin to a discretionary judgment”[35] so as to attract the limitations on the appellate function derived from House v. R. and the like. That view is no longer open in the light of s.134AD. Section 134AD denies the need, before the appellate court can interfere, to identify some specific error (whether of law or fact) tainting the process by which the conclusion under appeal was reached or alternatively to conclude that the determination below was simply so wrong that it must have involved error, though error which cannot be identified specifically. But having said that, it remains to describe just what is the appellate function in the particular circumstances of an appeal from a decision in the County Court that the applicant suffered, or did not suffer, a serious injury within the gateway provisions of the Accident Compensation Act.
[35][1998] 3 V.R. at 859.
It must be accepted by reason of s.134AD that the appellate court is to decide the question of serious injury, without inhibition if at the end of the day it differs from the opinion of the judge at first instance. None the less the appeal is justified by s.74 of the County Court Act 1958 and, although it is a full appeal, there are always some constraints by reason of its being an appeal proper as distinct from an appeal by way of rehearing de novo (as, for example, an appeal to the County Court after conviction by the Magistrates’ Court). Thus, it is for the appellant to persuade the Court that the decision produced below was the wrong one and should be reversed, or at least set aside. If a finding of fact is attacked, it is for the appellant, as the attacker, to carry the burden of persuasion, and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue. These things are generally taken for granted and call for no special mention. It is common, too, in cases that canvass the appellate function, to find express mention made of the obligation resting on the appeal court to recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses and who might, for example, have had an in-court demonstration (as in Abalos v. Australian Postal Commission[36]) or gone on a view (as in Pledge v. Roads and Traffic Authority[37]).
[36](1990) 171 C.L.R. 167.
[37](2004) 78 A.L.J.R. 572 at [49].
Mrs. Gledhill discovered early in the year 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s.134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an enquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s.134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; but even if we were wrong and it was sufficient to satisfy s.134AB(1) that the injury relied upon (in that case, carpal tunnel syndrome) was in part linked to employment on or after 20 October 1999 (albeit that part of it was referable to employment before that date), the plaintiff might well be no better off because, under s.134AB(2) she is permitted to sue only if the injury “is a serious injury and arose on or after 20 October 1999”. Either way, then, it may be that a plaintiff must establish the extent to which the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date.
We mention this, first because it seems to us that in that regard the statute might well be viewed as unsatisfactory, serving to raise what might prove to be an insuperable hurdle if medical opinion cannot resolve the factual issue. Secondly, if the legislation were to be reconsidered, might it not be sufficient, if injury (or indeed impairment) must still be linked to employment on or after a critical date, to require only that the relevant incapacity become known to the plaintiff on or after the date in question? This is of course a matter for Parliament, not the courts, and we do no more than raise the possibility for consideration.
Finally, we mention one or two matters of procedure. We have concluded that, even in the light of s.134AD, it is not correct to say that error is not relevant on an appeal under s.134AD. We therefore take leave to state what obviously follows, lest doubt remain. A notice of appeal in cases such as these should, as hitherto, serve to identify (as grounds of appeal) any errors relied upon, even if, in standard form, some of those errors are said to be that a specific finding is against the evidence or the weight of the evidence in a particular respect. Moreover, although more than once upon the hearing of these appeals counsel sought to raise a new point without warning, it should be clearly understood that the notice of appeal is the proper vehicle for an appellant’s giving notice of all points to be argued; and, if a respondent seeks to maintain the decision under appeal otherwise than for a reason given by the judge at first instance, notice of contention will ordinarily be called for. It is important that an appeal be conducted in an orderly fashion, and not by way of ambushing one’s opponent. This is to say no more than that the usual rules will apply in relation to such appeals even if, in obedience to s.134AD, it is no longer relevant to allege error of the sort upon which an appeal depended when brought from the exercise of discretion.
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