Brennan Taylor v State of New South Wales

[1999] NSWCA 159

Reported Decision: 46 NSWLR 322

New South Wales

Court of Appeal

CITATION:	BRENNAN TAYLOR v STATE OF NEW SOUTH WALES [1999] NSWCA 159
FILE NUMBER(S):	CA 40646/97
HEARING DATE(S):	9 March 1999
JUDGMENT DATE:	2 June 1999
PARTIES :	BRENNAN TAYLOR STATE OF NEW SOUTH WALES
JUDGMENT OF:	Handley JA at 1; Giles JA at 12; Sheppard AJA at 61

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	21068/95
LOWER COURT JUDICIAL OFFICER:	Murray AJ

COUNSEL:	Appellant - A J Leslie QC & J O Anderson Respondent - L King SC & R A Stanton
SOLICITORS:	Appellant - Steve Masselos & Co Respondent - P W Turk & Associates
CATCHWORDS:	WORKERS COMPENSATION - election to claim permanent loss compensation - revocation with leave - whether at time of election there was no reasonable cause to believe that the further deterioration in medical condition would occur - nature of belief - whether possibility of deterioration sufficient to negate belief - Francis v Dunlop (NSW CA, 16 December 1998, considered).
DECISION:	(By majority) Appeal allowed, the orders of Murray AJ be set aside, and the Master's grant of leave to revoke the election be confirmed. The respondent should pay the appellant's costs of the appeal to Murray AJ and of this appeal.

33

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40646/97

CL 21068/95

HANDLEY JA
GILES JA
SHEPPARD AJA

Wednesday 2 June 1999

BRENNAN TAYLOR v STATE OF NEW SOUTH WALES

JUDGMENT

1 HANDLEY JA: In this appeal, by leave, from a decision of Murray AJ, the Court is concerned with the meaning and application of s 151 A (5)(c) of the Workers Compensation Act 1987 as amended. The appellant, an injured worker, who elected to accept permanent loss compensation applied for leave to revoke his election. The Court has a discretion to grant leave if certain conditions are fulfilled. These include that in sub s 5(c):

“At the time of the election there was no reasonable cause to believe that the further deterioration would occur”.

2 I adopt the statement of the facts and the reasons of Giles JA other than his conclusion that the requirements of sub s 5 (c) were satisfied in this case.
3 This paragraph uses ordinary English words but its meaning has already given rise to difficulty, this Court being divided in Francis v Dunlop (unrep, 16 December 1998) with myself in dissent. Counsel agreed that the majority judgments in that case lacked a common ratio and the Court as presently constituted is therefore free to re-examine the question. I find myself again in the minority and have considered whether I should acquiesce in the majority opinion, but have decided to maintain my dissent.
4 Paragraph (c) requires the worker to prove a negative. I agree with Sheppard AJA that the test is objective and impersonal, and the answer therefore does not depend just on the personal knowledge or belief of the worker. However he is the person making the election and in this context it seems to me the question must be answered in the light of the information known or reasonably available to the worker and his legal and medical advisers.
5 If the worker’s doctors had cause to believe that the further deterioration would occur but the worker made an election without, personally or through his solicitors, asking the appropriate questions of his doctors, the requirements of para (c), in my view, would not be satisfied. On the other hand, the knowledge of doctors qualified for the employer, which was not communicated to the worker or his advisers would not be relevant, nor would be the opinions of those who had never been asked to consider the question.
6 I remain of the opinion expressed in Francis v Dunlop that the Court should not pose the test under para (c) by a paraphrase of the statutory language, and in particular should not pose the test by a paraphrase in positive terms.
7 A medical prognosis can seldom be made with precision. The question under para (c) relates to “the further deterioration”. What has occurred might be a deterioration of X percent. Is the paragraph satisfied where further deterioration was expected but only some percentage less than X? I am unable to accept that Parliament intended that this paragraph could be satisfied merely because the further deterioration was greater than expected if what was expected would have been material anyway. If that was the case, it would be relatively easy for a worker to establish that the condition in par (c) had been satisfied, whereas the intention discernible from the words “no reasonable cause to believe” is that this was intended to be quite difficult.
8 In my opinion the requirement inherent in the words “there was no reasonable cause to believe” that something would occur is not satisfied where there was some reasonable cause to believe that it would or might occur. The difficulty of forecasting the future of injured persons is well known, and long before Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 the courts had rejected the view that they should award or refuse damages for future contingencies on the basis of a finding of probability greater or less than 50 percent. Damages are awarded for future events that might occur based on the degree of probability assessed by the Court.
9 Where, at the date of the election, there was reasonable cause to believe that the further deterioration might occur, it cannot be said that there was no reasonable cause to believe that it would occur. A 20 percent chance of something occurring can, in my view, be described both as a chance that it would occur and as a chance that it might occur. In such a case it cannot be said, in my view, that there was no reasonable cause to believe that it would occur.
10 On the medical evidence available to the worker and his advisers at the date of his election and his own awareness of his deteriorating condition he failed, in my judgment, to establish that there was no reasonable cause to believe that the further deterioration would occur.
11 In my opinion therefore the appeal should be dismissed with costs.
12 GILES JA: The appellant was employed as a cleaner at the Blacktown Girls High School. In October 1992 he injured his back lifting garbage bins. In August 1993 he applied for permanent loss compensation under the Workers Compensation Act 1987 (the Act). In September 1994 his claim was settled, and in November 1994 he banked the cheque received pursuant to the settlement. He thereby elected to claim the permanent loss compensation and ceased to be entitled to recover damages in respect of the injury, see s 151A(2) and (3) of the Act.
13 In October 1995 the appellant commenced these proceedings claiming damages in respect of the injury. The election stood in his way, and was irrevocable except with the leave of the court, see s 151A(4) of the Act; by s 151A(5), set out in full later in these reasons, if certain conditions were satisfied then with the leave of the court he could “revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury”. The respondent’s defence filed in the proceedings in January 1996 included that the appellant had not obtained leave and that the proceedings were not maintainable by him.
14 In April 1997 the appellant applied by notice of motion in the proceedings for leave and for an order that the proceedings “be deemed to have been validly commenced” pursuant to the leave. On 3 June 1997 Master Greenwood granted leave and, apparently because it was considered that the leave could not relate back to validate the commencement of the proceedings, also granted leave to commence fresh proceedings. The last mentioned leave was necessary because the three year time limit for commencement of court proceedings for damages in respect of the appellant’s injury had expired in October 1995, and it must have been granted pursuant to s 151D(2) of the Act. We were informed that the fresh proceedings were duly commenced.
15 The respondent appealed from the decision of the Master. Its notice of appeal challenged the grant of leave pursuant to s 151A(5) for errors of fact and law and challenged the grant of leave pursuant to s 151D(2) for denial of procedural fairness. On 18 September 1997 Murray AJ allowed the appeal in relation to the grant of leave pursuant to s 151A(5), whereby the appeal in relation to the grant of leave pursuant to s 151D(2) (if persisted in - it is not clear that it was) was of no consequence. His Honour ordered that the appellant’s notice of motion be dismissed and that the proceedings be struck out.
16 Having been granted leave to appeal on 1 December 1997, the appellant then appealed to this Court. The appeal did not raise the grant of leave pursuant to s 151D(2), and it was accepted in this Court that, if the leave pursuant to s 151A(5) granted by the Master were reinstated, the time limit for commencement of the fresh proceedings had been overcome.
17 Section 151A(5) reads:
“If:

(a) a person elects to claim permanent loss compensation in respect of an injury, and
(b) after the election is made, the injury causes a further material deterioration in the person’s medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and
(c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,
the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.”
It provides for three conditions to the grant of leave, and if the conditions are satisfied the court then has a discretion whether or not to grant leave. In the present case para (a) was satisfied. The debate at all levels was over paras (b) and (c).
The appellant’s medical condition

18 The appellant was off work for about three weeks after his injury. He consulted his general practitioner, Dr N J Nott, who considered that the lifting had caused the prolapse of a previously degenerative disc in the appellant’s back and prescribed physiotherapy and anti-inflammatory tablets. There was little improvement, and the appellant was referred to Dr Atish Sengupta, who became his treating specialist.
19 A CT scan showed a disc bulge at L4-5 but no obvious nerve root involvement, and Dr Sengupta continued the conservative treatment with physiotherapy and spinal exercises. The appellant attempted to return to work on occasions, but this brought exacerbation of his pain. A further CT scan confirmed the disc bulge, and given the symptoms over a long period Dr Sengupta advised a percutaneous discectomy. This procedure was undertaken on 2 June 1993. It improved the appellant’s condition. He had occasional pain and discomfort in his back, but not the extent of pain or the pain in his left leg as before, and he returned to work on light duties in August 1993.
20 But then the appellant’s condition deteriorated, with increasing pain and radiating pain in his left knee. A myelogramme in about April 1994 confirmed the disc bulge and showed compression of the L5 nerve root, but there was no major disc herniation or rupture or any canal stenosis. The pain worsened and extended to his left calf. He was referred to a pain management specialist, Dr Peter Cox, and in Dr Sengupta’s view if the appellant’s problems did not resolve a discographic examination of the L4-5 level to elicit the more precise nature of the disc pathology and his continuing symptoms would be worthwhile. Dr Cox recommended a conservative regime of hydrotherapy, exercise, and use of a TENS machine.
21 When Dr Cox reviewed the appellant on 17 October 1994 he “seemed fairly stable without having made significant improvement”, and was “working four hours a day”, but according to the appellant his pain was slowly getting worse in the period up to September 1994 and continued slowly to get worse thereafter.
22 By February 1995 the appellant was experiencing more frequent and more severe pain in the back and legs. In that month he underwent a discographic examination. It showed a degenerative and ruptured disc at the L4-5 level, and Dr Sengupta recommended surgical exploration and excision of the disc and fusion at the L4-5 level. The appellant ceased work in March 1995, being unable to continue even with light work. The pain continued, and by August 1995 was noted by Dr Sengupta as fairly severe and chronic low back pain radiating to the left leg, “the symptoms being particularly severe in the last few weeks with paraesthesia in the form of tingling and spasm of the left leg”. Dr Sengupta now strongly recommended the surgery and fusion, possibly even to the L5/S1 level, and considered that the appellant was unfit for any kind of work. In September 1995 the appellant was referred by Dr Cox to Dr Roberto Garofali, a behavioural psychologist, and began therapy for his feelings of insecurity, anxiety and depression.
23 The appellant was also examined over this period by Dr Richard Evans and Dr W D Sturrock for medico-legal purposes. Dr Evans examined him in November 1993 and April 1995, and recorded that his back was more painful and stiff at the later examination than at the earlier examination and that at the later examination he had “very troublesome, constant, pain in the left leg”. Dr Sturrock’s opinion was rather different from that of his colleagues, and was to the effect that the appellant had some degenerative changes but was quite fit for work and needed no surgical or other special treatment.

Paragraph (b) of s 151A(5)

24 The Master dealt with para (b) shortly, saying that “undoubtedly after the election was made the injury caused a further material deterioration to [the appellant’s] medical condition which, had it existed at the time of the election, would have entitled [the appellant] to additional permanent loss compensation”. Murray AJ expressed the view that this finding “was certainly open to the Master on the evidence”, and continued -
“The significant thing that occurred after the election was the diagnosis, following discogram, of the disc protrusion.

Although the attribution of percentages for physical injury involves a subjective element, it is noted that Dr Nott, on 3 March 1994, assessed the permanent loss of efficient use of [the appellant’s] back as 20 per cent. On 12 December 1994 (after the election), he assessed the percentage loss at 60 per cent.”

25 By a notice of contention the respondent sought to uphold the dismissal of the appellant’s notice of motion on the ground that his Honour had erred in holding, or confirming, that para (b) had been satisfied. It took up his Honour’s reference to the diagnosis, following discogram, of the disc protrusion, and said that the diagnosis and the discogram were not a further material deterioration. Rather, it said, a further material deterioration would be a sufficient increase in adverse pathology or adverse symptoms, or both, and the diagnosis and the discogram were but discovery tools and consistent with a constant pathology and level of symptoms. So, it was submitted, there was error in the foundation for his Honour’s conclusion.
26 His Honour’s reference was elliptical, but I do not think it was as limited as this submission required. The disc protrusion was the degenerative and ruptured disc at the L4-5 level, to be compared with the disc bulge previously revealed by the CT scans (see Dr Sengupta’s observation in April 1994 that there was no major disc herniation or rupture), and it and the worsening in pain indicated and constituted increase in adverse pathology and adverse symptoms. Even if this be incorrect, his Honour also rested his conclusion on the assessments of percentages for physical injury, noting the increase in the assessments by Dr Nott. Dr Nott’s assessment of 20 per cent (back) was expressed as a likely result, while his assessment of 60 per cent was in bald terms, but provided a sound foundation for his Honour’s view. And there was other such evidence. In his report of 12 December 1994 Dr Nott forecast a 15 per cent loss of the efficient use of the appellant’s left leg, and in December 1996 assessed the percentage loss at 40 per cent (and confirmed the 60 per cent (back)). In June 1994 Dr Sengupta opined percentages of 20 per cent (back) and 5 per cent (leg), and in August 1995 expressed percentages of 30 per cent (back) and 20 per cent (leg) plus 10 per cent for the right leg. I have already referred to Dr Evans’ opinion that the appellant’s back was more painful and stiff at his examination in April 1995 than at his examination in November 1993, and Dr Evans assessed the impairment in November 1993 at 28 per cent (back) and 4 per cent (leg) and in April 1995 at 40 per cent (back) and 10 per cent (leg). Recognising, as his Honour did, the subjective element in the assessments, all this plus the evidence of ability to work followed by cessation of work and of the gradual worsening of pain provided ample grounds for the finding of the Master, including that the deterioration would have entitled the appellant to additional permanent loss compensation, and for his Honour’s view that the finding was open to the Master.
27 As part of the submission, the respondent contended that a deterioration in the appellant’s medical condition could not be a further material deterioration for the purposes of para (b) unless it was “outside the predictable run of the established condition”. This, it was said, was because of the word “material”. I do not think the facts permitted the respondent to take this aspect of the submission anywhere, but in any event I do not agree. Paragraph (b) is concerned with what in fact happens, and if what happens is a deterioration in the worker’s condition, and is of sufficient magnitude or seriousness to be described as material, the paragraph is satisfied. I do not think that the notice of contention has been made good.

Paragraph (c) of s 151A(5)

28 The Master said -
“It is the plaintiff’s evidence that his back was not getting any better but he was firmly of the view that he did not expect it to deteriorate as much as it had when he had accepted the compensation.

There is evidence from the various doctors who had examined the plaintiff that the prognosis was guarded, even before the plaintiff’s decision to accept lump sum compensation. However, there is nothing that I read in the reports to suggest that the plaintiff was advised that he would suffer the disc rupture that he has now suffered with the imminence of further operative treatment which has been recommended.
In my view the plaintiff’s medical condition, as it has now materialised, is such that it was not reasonable for the plaintiff to believe that he would suffer further deterioration at the time of his election. He was employed - on a part time basis - but it was at least 20 hours per week - and there is nothing in the evidence to suggest he did not regard it as indefinite employment, even though he knew there was some deterioration in his condition.
The medical evidence did not suggest that operative treatment would be necessary. Subsequent to the election the events occurred which have changed further the plaintiff‘s way of life. I am satisfied the plaintiff meets the criterion of s151A(5)(c).”

29 Murray AJ first summarised the three conditions in s 151A(5). After dealing with para (b) in the manner I have described, he said that the more difficult question was whether the appellant had satisfied the third condition, “namely that at the time of the election, there was no reasonable cause to believe that the further deterioration would occur”. He set out the last three paragraphs from the reasons of the Master which I have set out, and continued -
“With respect to the findings of the Learned Master, the abovementioned findings do not accord with the evidence which was before him. The question confronting the respondent at the time of the election was whether or not there was no reasonable cause to believe that the further deterioration would occur. One assumes that he had available to him through his legal advisers, the medical reports annexed to his affidavit dated 1 April 1997. Those reports included the following -

Dr Nott - Report 3 March 1994
‘In conclusion, in my opinion, while lifting bins on 19 October 1992, Brennan Taylor caused the prolapse of an already degenerative disc at L4-5 level of his back and despite a percutaneous discectomy in June 1993, he is still having problems with his prolapsed disc. His injury is consistent with the stated cause.
It is too early for a final opinion on permanent impairment, as Mr Brennan (sic) may improve, or deteriorate or further surgery may in fact totally relieve his problem, however it seems likely he will have about 20 per cent permanent loss of efficient use of his back following his injury.’
Dr Sengupta - Report 27 June 1994
‘The long term prognosis, at this stage, remains guarded, as his condition may deteriorate and he may require further surgical treatment.’
Dr Evans - Report 19 November 1993
(annexed to the affidavit of Miss Edwards, but addressed to the plaintiff’s solicitor)
‘Mr Taylor suffers from a prolapse of the L4-5 intervertebral disc. The disc protrusion caused him to have pain in his low back, whilst the pressure of the protruded disc on the left L5 nerve root causes him to suffer pain in the left leg …
Mr Taylor has had a very good result from this, (the discectomy) with substantial reduction in the back and left leg pain. However, as expected, he still has some pain in his back and left leg, and there is some impairment of back movements …
Prognosis :
This is uncertain. He has still a degenerate, damaged L4-5 intervetebral disc, and could suffer further prolapse of this, particularly if he attempts heavy lifting. There is also some degeneration of the L3-4 disc, and this also could prolapse.’
Contrary to the findings of the Master above stated, it seems to me the above stated evidence reveals that the plaintiff’s condition prior to and at the time of his election might well have deteriorated, and that further surgery was at the very least, possible.
Nowhere in the plaintiff’s affidavit of 1 April 1997, does he say that he was not advised of the findings of the various doctors referred to above, particularly as at least Dr Nott and Dr Sengupta were his treating doctors.
It is difficult to see how the Master could say that ‘there is nothing that I read in the reports to suggest that the plaintiff was advised that he would suffer the disc rupture that he has now suffered’.”

30 After referring to the reports of Dr Sturrock, his Honour then said -
“Even if one accepts that there has been a material deterioration, that is not the end of the inquiry. What has to be shown is that ‘there was no reasonable cause to believe the further deterioration would occur’.

In my view, there was ample evidence available to the plaintiff, and which should have been apparent to the Master, to show that there was reasonable cause to believe that the further deterioration would occur.
In coming to this conclusion, I accept that the decision of the Learned Master involved the exercise of discretionary judgment. I pay regard to the fact that there is a presumption that the judgment is correct. I am also aware that that presumption can only be displaced where it can be shown that -
a) the Court acted on a wrong principle, or
(b) failed to give weight or sufficient weight to relevant
considerations, or
c) made a mistake as to the facts.
Because of the foregoing reasons, I am forced to the conclusion that the Master erred in respect of items b) and c) of these principles.”

31 The grounds of appeal were not well framed, but as understood in the light of the appellant’s submissions on the appeal in essence raised three grounds.
32 The first ground was that Murray AJ had misdirected himself in relation to the words, and so the effect, of para (c). Paragraph (c) refers to “no reasonable cause to believe that the further deterioration would occur” [emphasis added], and the definite article relates back to the further (material) deterioration in para (b). It was submitted that his Honour’s reasons did not recognise this connection, as I understand it with the asserted consequence that his Honour might have thought that para (c) was satisfied by reasonable cause to believe that further deterioration would occur of less materiality than the further (material) deterioration found for the purposes of para (b).
33 There is nothing in this ground. When summarising the conditions in s 151A(5), his Honour referred to the necessity that the appellant show that at the time of the election “there was no reasonable cause to believe that a further deterioration would occur” [emphasis added]. The summary was not accurate in that the indefinite article was used. But, as the passages from his Honour’s reasons set out above amply demonstrate, when he addressed satisfaction of para (c) his Honour directed himself by regard to the correct words, using the definite article, and he expressed his conclusion in the precise words of para (c). Further, at the beginning of the second passage from his reasons set out above his Honour expressly distinguished between a material deterioration and the further deterioration found in the words of para (c), saying that acceptance that there has been a material deterioration is not the end of the enquiry and that a deterioration which he expressed by quoting the words of para (c) must be shown. In my opinion, it can not be said that his Honour misdirected himself in the manner suggested.
34 The second ground was that the Master’s grant of leave to revoke the election was an exercise of discretionary judgment, and that in accordance with the well known limitations on appellate intervention in the exercise of discretion (see for example House v the King (1936) 55 CLR 499 at 504-5) it was not open to Murray AJ to intervene. His Honour seems to have recognised those limitations in the concluding part of the second passage from his reasons set out above, and to have considered that intervention was nonetheless warranted.
35 In my opinion, however, this was a red herring, and the limitations invoked by the appellant were not in point. Satisfaction of the conditions in s 151A(5) was necessary so that leave to revoke the election could be given, but the exercise of discretion was in relation to the grant of leave once the conditions had been satisfied: whether or not para (c) was satisfied was not an exercise of discretionary judgment. Any limitation on appellate intervention in the Master’s finding of satisfaction of para (c) would flow from principles involving credibility of witnesses (see for example Jones v Hyde (1989) 65 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) HCA 3) and the due weight and respect to be given to findings at first instance. The Master had a number of medical reports but no oral evidence from the doctors, and there was no relevant issue over the appellant’s credibility. In those circumstances, if after giving full weight and respect to the Master’s finding Murray AJ considered that it was wrong, he was entitled and obliged to give effect to his own judgment (Warren v Coombes (1979) 142 CLR 531; Dawson v Westpac Banking Corporation (1991) 104 ALR 295).
36 The third ground was of more substance, and was that the Master had been right, and Murray AJ was wrong, as to whether there was no reasonable cause to believe that the further deterioration would occur.
37 When addressing para (c) the Master focussed on further material deterioration by suffering the disc rupture with the need for further surgery, and while recognising that the appellant’s condition was deteriorating considered that it was not reasonable for the appellant to believe that he would suffer further deterioration - by which the Master seems to have meant the disc rupture and deterioration to the extent of having to cease work - at the time of his election. Murray AJ upheld the Master’s finding as to a further material deterioration, but differed from the Master in that he saw in the medical reports to which he referred reasonable cause to believe that the further deterioration would occur. His Honour’s summary of what the reports revealed was “that [the appellant’s] condition prior to and at the time of his election might well have deteriorated, and that further surgery was, at the very least, possible” (see the first passage from his reasons set out above), and the reports were clearly enough what he later referred to as evidence to show that there was reasonable cause to believe that the further deterioration would occur (see the second passage from his reasons set out above). At the heart of the difference between the Master and his Honour was whether the possibility of the further (material) deterioration which in fact occurred precluded satisfaction of para (c).
38 To resolve this difference, the interpretation and application of para (c) must be explored.
39 Section 151A was introduced into the Act in 1989. Amendments to the Act in 1987 had taken away a workers’ entitlement to common law damages. Amendments in 1989, of which the introduction to s 151A was part, restored modified common law damages. Relevantly, the worker was required to elect whether to claim permanent loss compensation under the Act or common law damages, and was not entitled to both. The obvious question was, what if after an election for permanent loss compensation there is further deterioration in the workers’ condition? Section 151A was part of the answer to the question. In that event, with the leave of the court the worker could claim common law damages and the permanent loss compensation would be credited against the amount of the damages. The broad purpose of para (c) as part of the answer is clear enough. No doubt to exclude further deterioration which the worker should have taken into account when making his initial election, para (c) requires that the further deterioration be what might loosely be called unexpected. But the broad purpose provides little assistance in resolving questions thrown up by the language of the paragraph.
40 First, the language addresses a negative - there was “no reasonable cause” for belief in something. The worker must prove a negative, and at least in theory must prove the entire field of relevant human knowledge in order to say that the belief is not reasonably available. Assuming that the legislature did not mean to impose such a burden, how is the field of knowledge delimited? It clearly goes beyond the worker’s actual knowledge, and extends to regard to the opinion of his medical advisers and others such as the doctors qualified for the employer for the purposes of the claim for permanent loss compensation. Does it include the opinion which a further eminent doctor would have given if consulted? That the context is the worker’s election suggests that the field of knowledge is that which was known or ought to have been known to the worker, but what the worker ought to have known is a slippery concept.
41 Secondly, whatever the relevant knowledge be, it must not provide reasonable cause for a belief. There can be degrees of belief, ranging from something like suspicion, to expectation, to complete confidence. What is the kind of belief for which there must have been no reasonable cause?
42 Thirdly, the subject of belief is that the further deterioration would occur. The assessment is retrospective, hence “would” rather than “will”, but the further deterioration must be approached as a future event, necessarily putting aside that it has occurred. Is belief in the future event, approached as a future event assessed by asking whether the event will occur, belief that the event will certainly occur, that it will occur more probably than not, or that it will possibly occur although not more probably than not?
43 Paragraph (c) must, of course, be read as a whole. Regard to the composite notion of reasonable cause to believe that a future event will occur, in my view, means that the further deterioration must be more than a possible event (because it can not readily be said that a possible event will occur) but not a certain event (because cause to believe and the futurity deny certainty), and that the belief must be more than suspicion (because reasonable cause should found more than suspicion) but less than complete confidence (because reasonable cause and the futurity deny complete confidence). The reference to reasonable cause connotes the existence of facts sufficient to induce the relevant belief in a reasonable person (cf George v Rockett (1990) 170 CLR 104 at 112). Assuming without deciding the field of knowledge described above, the effect of para (c) is that it must be asked whether a reasonable person knowing what was known or ought to have been known to the worker would expect the further deterioration in fact suffered by the worker as something more probable than not. If the answer is no, para (c) is satisfied.
44 An analysis such as the foregoing may risk departure from the words of para (c), to which the Court must be true, but the legislature has used singularly awkward language. The view of the effect of para (c) I have expressed does not seem to me to depart from the broad purpose of para (c) earlier identified, and that para (c) can give rise to divergent interpretations is shown by the judgments in the decision of this Court in Francis v Dunlop (16 December 1998, unreported). It remains to consider those judgments and, with that advantage, review the view of the effect of para (c) I have expressed.
45 In Francis v Dunlop the worker accepted payment of permanent loss compensation on the basis that he had a 15 per cent impairment of his back. The medical opinions available to him at the time varied in their diagnosis of ankylosing spondylitis. Mr Dewey thought the worker’s history and his physical examination suggested such a disease, and forecast a deterioration in his condition. Dr Dalton regarded this as a diagnosis of ankylosing spondylitis. But Dr Gray thought that it was necessary to have “an open mind on this diagnosis”, and that the worker had sustained a soft tissue sprain injury. By majority (Priestley JA and Fitzgerald AJA, Handley JA dissenting) it was held that para (c) was satisfied and, having considered satisfaction of para (b) as well, that the worker should have leave to revoke his election.
46 Fitzgerald AJA said -
“In my opinion, what is required for the appellant to satisfy subs 151A(5)(c) is a negative answer to the following question:

‘Would a reasonable person with the information available to the appellant when he elected to accept permanent loss compensation on 30 June 1993 have then had any cause to believe that his injury in respect of which such compensation was accepted would cause a further material deterioration in his medical condition that, had it existed at the time of the election, would have entitled the appellant to additional permanent loss compensation?’ (Emphasis added)

Because of the awkward phraseology of the section, I should elaborate briefly. The section requires an absence of reasonable cause for belief. On the other hand, the belief with which it is concerned is not a belief as to what might occur, but a belief as to what would occur (Cf Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 291-292, per Barwick CJ; 303-304 per Kitto J). Knowledge of medical advice that further deterioration probably would occur provides reasonable cause to believe that deterioration would occur in the absence of any contrary opinion, but does not necessarily do so if there is other medical advice that further deterioration probably would not occur. In the latter event, the question which I have posed would be answered in the affirmative unless, on a consideration of all the advice, a reasonable person would conclude that, while further deterioration might occur it probably would not occur.”
His Honour considered that, absent Dr Gray’s opinion, the question would be answered in the affirmative. But he said that Dr Gray’s opinion raised doubts, while accepting that ankylosing spondylitis was a possibility, and that “a reasonable person presented with this conflict of expert opinion would have acted on the basis of Dr Gray’s advice”: so the question should be answered in the negative.

47 His Honour’s elaboration involved that the question he formulated was answered according to the probability or otherwise of further deterioration, and that a possibility of further deterioration did not give reasonable cause to believe that the deterioration would occur. As his answer absent Dr Gray’s opinion shows, he regarded reasonable belief in probability as fairly readily achieved, because the opinion of Dr Dewey was not in very definite terms. His citation of Queensland Bacon Pty Ltd v Rees took up a passage in which Barwick CJ distinguished, in relation to s 95(4) of the Bankruptcy Act 1924 (C’th) referring to the inference that the creditor had reason to suspect that the debtor was unable to pay his debts as they became due, between reason to suspect that the debtor might be insolvent and reason to suspect that he is insolvent: the passage included, “It is one thing to suspect a man’s insolvency in the sense that one doubts whether he is solvent or insolvent. It is another thing to suspect that he is in fact insolvent” (at 292).
48 Priestley JA agreed with the reasons of Fitzgerald AJA, “subject to an additional consideration”. His Honour considered that para (c) posed the question, “Is there any reasonable cause to believe a further particular deterioration will occur?”, a question which had to be answered in the negative in order that the condition be fulfilled. For reasons which his Honour gave, he considered that “for a person to believe that something will occur that person must not only think that the thing will occur but also accept as a truth that it will occur”, and his Honour then said -
“On the basis of the medical evidence recounted in Fitzgerald AJA’s reasons, I do not think that an objective observer at the time of the election could have said ‘I accept as true that a particular further deterioration will occur’. Such an observer could have said ‘I accept as true that a particular further deterioration might occur’ or ‘I believe it is probable that a particular further deterioration will occur’. This last way of putting the observer’s belief comes closest to being one which would prevent the appellant discharging his onus, but is not one the existence of which is inconsistent with the non existence of any ‘cause to believe’ in the sense I think the relevant words are used.

Stating the last point more simply, in my opinion there is a real difference between the observer saying ‘I believe it is probable that a particular further deterioration will occur’ and saying ‘I accept as true that a particular further deterioration will occur’. In my opinion the latter is what the appellant must negate, not the former, which would be noticeably harder to do. As already indicated, I think the appellant has, on the available evidence, negated reasonable cause for the observer saying the latter.

49 His Honour seems to have thought that the medical opinions could have entitled the observer to say “I believe it is probable that a particular further deterioration will occur”, although he regarded that way of putting the observer’s belief as “coming closest” to requiring a negative answer to the question. It is not clear whether, despite his conditional agreement with the reasons of Fitzgerald AJA, his Honour might have reached a different result but for the added significance he saw in the notion of belief. That added significance made it easier for the worker to satisfy para (c), because it would be harder to point to reasonable cause for belief in the sense of acceptance as true than to point to belief in the sense of acceptance of probability.
50 Handley JA considered that the medical reports were in conflict, one optimistic but not dogmatically so and recognising some risk of further deterioration (Dr Gray), another pessimistic and forecasting a likelihood that the worker’s condition would worsen (Mr Dewey), and the other giving a poor prognosis which his Honour translated as one that the worker’s back would get worse (Dr Dalton). In his Honour’s view, where medical experts, apparently equally qualified, had arrived at different diagnoses and prognoses, the Court could not find that a reasonable person would have acted on one rather than another. His Honour did not agree with Fitzgerald AJA’s view that a reasonable person would have acted on the basis of Dr Gray’s advice, saying that there was no firm basis for choosing between the opinions, and considered that the opinions of Mr Dewey and Dr Dalton provided reasonable cause to believe “that, at the very least, further deterioration might occur”.
51 Referring then to the distinction between what might occur and what would occur, his Honour distinguished what had been said in Queensland Bacon Pty Ltd v Rees on the ground that the enquiry there related to an existing fact, the insolvency of the debtor. He continued -
“In the present case the word ‘would’ is used in a context (‘the further deterioration would occur’) where it expressed the future in the past (Fowler’s ‘Modern English Usage’, 3rd ed 1996, p 711 ‘should and would’). Moreover in this case it is used to refer to something (‘the further deterioration’) which has occurred by the time the Court undertakes its enquiry. It is something that is now known ‘would occur’ because it has occurred. The Court must look back after the outcome has become a known fact to an earlier date and examine the future from that perspective.

In my opinion the distinction between ‘would’ and ‘might’ in this section does not assist the appellant because the fact has occurred and the section requires that there be ‘ no reasonable cause to believe’ that it would occur. Where there was reasonable cause, at a past date, to believed that something might occur, although there was less than a 50.1% chance of this, it cannot be said that there was no reasonable cause to believe that it would occur. I put to one side cases where the chance is so small that it can be disregarded.
In any event Mr Dewey though it ‘likely’ that the appellant’s condition ‘will’ worsen and ‘expected’ it to do so. This was an apparently reasonable opinion by a qualified expert, even if there was a reasonable opinion to the contrary. It satisfied the requirements of the section even if a prognosis that deterioration ‘might’ occur would not be enough.
I have not been persuaded by the analysis of the meanings of belief undertaken by Priestley JA. The relevant meaning, in my opinion, is ‘think’ as the context excludes questions of faith, trust, or existing fact. Moreover converting the negative language into a positive form can change the meaning. The opposite of ‘had reasonable cause to believe’ is not ‘had no reasonable cause to believe’ but ‘did not have reasonable cause to believe’ which has quite a different meaning.”

52 His Honour’s view that reasonable cause to believe that something might occur, although there was less than a 50.1 per cent chance of it, meant that it could not be said that there was no reasonable cause to believe that it would occur, seems to have been influenced by the fact that at the time of the enquiry it is known that the something has occurred. Part of finding the distinction between “would” and “might” was unhelpful was “because the fact has occurred”. In my respectful opinion, this involves impermissible hindsight. The purpose of para (c), and its language, require that whether there was no reasonable cause for the belief he assessed as at the time of the election, and that excludes regard to the fact that the further deterioration has occurred save so far as it identifies what the hypothetical belief is about. For my part, I share Fitzgerald AJA’s recognition of a distinction between “would” and “might”. In his fall-back position Handley JA regarded likelihood and expectation as sufficient for reasonable cause to believe that something would occur, and did not require certainty. That seems to have followed through into the context whereby his Honour did not agree with Priestley JA’s understanding of what is required for belief, and to inform his Honour’s expression of the meaning of “believe” as “think”. The substituted word, of course, is itself susceptible of degrees of thinking, but it is plain enough that his Honour intended something less than complete confidence.
53 I return to the view of the effect of para (c) I have expressed. I find comfort in Fitzgerald AJA’s recognition of a distinction between “would” and “might”, with its conditional acceptance by Priestley JA, and as I have indicated I respectfully disagree with Handley JA so far as he was of a different view. While “believe” in many contexts may mean “accept as true”, I also am not persuaded that in its use in para (c) it has that meaning, and that it has that meaning was perhaps implicitly rejected by Fitzgerald AJA. Francis v Dunlop does not provide uniform guidance on the interpretation and application of para (c), and in my opinion it leaves open, and provides to some extent support for, the view of the effect of para (c) I have expressed. Having considered Francis v Dunlop, I maintain that view as the preferable one.
54 In the present case there was no issue over the field of knowledge: it comprised the opinions of the appellant’s treating doctors and the doctors who examined him for medico-legal purposes, plus his own account of his condition.
55 Most of the relevant parts of the medical opinions were set out in the reasons of Murray AJ, and I will not repeat them. In addition, in a report dated 8 November 1993 Dr Sengupta said that it was “too early to give a definite opinion”, in a report dated 22 June 1994. Dr Case said that there was “certainly room for improvement in [the appellant’s] physical ability” and I have already referred to Dr Evan’s assessment on 17 October 1994 that the appellant “seemed fairly stable without having made significant improvement”.
56 The appellant’s account of his condition included that it was slowly getting worse before the settlement of his claim for permanent loss compensation and continued to get worse thereafter, and the respondent placed considerable reliance on that and an answer said to evidence the appellant’s belief at the time of the election that further deterioration would occur. The answer must, however, be read together with preceding questions and answers: they speak of September 1994 -
“Q. And was not the most reasonable thing at that stage for your [sic] to assume that that situation, that is that worsening, would in fact have continued on and on?

A. I did not think it would get as bad as it ended up.
Q. But you were aware that there could very well be a worsening?
A. Well, at the time I did not really believe it would be.
Q. But that had been the experience up to then?
A. Yes. On certain occasions it would get worse than others.
Q. There was every reason in September 1994, to think that process of worsening would have continued after September 1994?
A. Well, yes.”

57 The worker’s belief will not necessarily be for reasonable cause, and is not the criterion for the purposes of para (c). The hypothetical belief is impersonal, and the Master may have erred in expressing his finding in the terms that “it was not reasonable for the plaintiff to believe that he would suffer further deterioration at the time of his election”. Read together with the preceding questions and answers, however, I do not think that the answer “Well, yes” on which the respondent relied did evidence the appellant’s belief at the time of the election that further deterioration would occur, and whether there was reason for such a belief (which was what the question put to the appellant really addressed) is better found in the medical opinions than in the appellant’s unqualified (and, it seems, hesitant) concurrence.
58 None of the medical opinions expressed probability of further deterioration in the appellant’s medical condition, in the sense that deterioration was likely or more probable than not. Dr Nott thought that he “may improve, or deteriorate”; Dr Sengupta said the prognosis was guarded and his condition ”may” deteriorate; Dr Evans said that the prognosis was uncertain and he “could” suffer further prolapse; the assessment most proximate in time to the election was that the appellant’s condition was stable. If Dr Sturrock’s views were adopted, there was nothing wrong. It is unnecessary to consider whether there is any significance in the absence of a pessimistic prognosis in, for example, the report of Dr Case. In the might/would distinction, the medical opinions provided reasonable cause to believe that the further deterioration which in fact occurred might occur, but not that it would occur. On the elaboration of Fitzgerald AJA in Francis v Dunlop, the medical opinions fell short of forecasting that the further deterioration probably would occur, and there could not be belief as required by Priestley JA in that case. On the view of the effect of para (c) I have expressed, a reasonable person knowing the medical opinions would not expect the further deterioration in fact suffered by the appellant as something more probable than not.
59 Taking the medical opinions together with the appellant’s account of his condition, including of its continuing worsening, in my opinion, the position is the same. There was no reasonable cause to believe that the further deterioration would occur, and para (c) was satisfied.
60 Thus all conditions in s 151A(5) were satisfied, and leave to revoke the election could be given. At least in this Court, there was no challenge to the Master’s exercise of discretion once this stage was reached. I propose that the appeal be allowed, the orders of Murray AJ be set aside, and that the Master’s grant of leave to revoke the election be confirmed. The respondent should pay the appellant’s costs of the appeal to Murray AJ and of this appeal.
61 SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Giles JA. I am in agreement with his Honour's conclusions and, subject to one inconsequential matter, with his reasons.
62 The problem in the present case is to reach a conclusion on the meaning and effect of what appears at first sight to be a straightforward statutory provision. It is to be found in s.151A(5) of the Workers Compensation Act 1987 which, so far as relevant, provides that if, at the time of the election provided for in subs.(2) of the section, there was no reasonable cause to believe that the further deterioration would occur, an injured worker may, subject to one other matter which is irrelevant for this case, with the leave of the court, revoke the election and commence proceedings for the recovery of damages.
63 A problem of a similar kind has been considered by this Court in Francis v Dunlop (Priestley and Handley JJA and Fitzgerald AJA, 16 December 1998, unreported). The members of the Court expressed different views about the meaning to be given the provision. Giles JA has discussed these in his judgment. He prefers the approach adopted by Fitzgerald AJA. With respect, I have the same view. That is not a conclusion I have reached easily for the considerations mentioned by Priestley JA, whose conclusion was the same as that of Fitzgerald AJA but who approached the matter somewhat differently, and Handley JA whose conclusion is different from those of the other members of the Court, are both persuasive. Nevertheless, I prefer generally the approach adopted by Giles JA in his judgment in the present case and Fitzgerald AJA in what he said in Francis v Dunlop. I am in agreement with the reasoning of both judges but have a few remarks of my own which I wish to make.
64 It seems to me that the approach of those judges involved them contrasting the use of the word "would" in the context in which it appears with the word "might" if it had been used instead. "Would" derives from the verb "will"; "might" from the word "may". Both are usually applied to events which are to take place in the future but "will" and "would" usually imply a probability or likelihood whilst "may" and "might" are the language of possibility. Thus, "I will (or I shall) go to the meeting tonight" suggests a definite intention to attend. And, if one says, "He told me that he would attend the meeting tonight", one conveys a similar idea. On the other hand, if one says, "I may go to the meeting tonight" or, "He told me he might go to the meeting tonight", one is using the language of possibility with the consequence that there is no certainty, really no likelihood, that the speaker will attend the meeting; there is the possibility that that might occur, but it may not. If one imports that way of approaching the matter into the language used in the section, one can see that the legislature has not used the language of possibility but has used the language of probability or likelihood. If one transforms the critical words to the present tense, they will read, "There is no reasonable cause to believe that further deterioration will occur". That would be a perfectly accurate statement even though the person who said the words may have received medical advice that there was a possibility that there could be a further deterioration. It was open to the legislature to use the word "might" instead of "would", but it did not and the consequence must be as I have indicated.
65 There is a further matter. This is beneficial legislation intended to benefit employees injured in the course of their employment. The statutory provision in question is in Part 5 of the Act dealing with common law remedies. The particular provision is found in a section dealing with the circumstances in which an injured employee may pursue common law remedies for damages. Notwithstanding certain restrictions which are imposed by the section both in relation to the circumstances in which a common law damages claim may be made and the amount which may be recovered, the provision is still within a statute, the overall purpose of which is to compensate persons injured in the course of their employment. Furthermore, as Giles JA mentions, the section was one of those introduced into the Act in 1989, the purpose of which was to restore to injured workers the right, in some circumstances, to claim damages under the general law rather than compensation under the Act. In that sense, the section is beneficial notwithstanding the restrictions which it contains.
66 The judicial disagreement about the meaning of the provision as revealed by the judgments in Francis v Dunlop shows that it is the presence of the word "would" which gives rise to the difficulty. The uncertainty as to its meaning which exists may be because the word, in the context in which it appears, is ambiguous. If it is, the nature of the legislation requires that the provision be given the construction which favours the employee or worker; cfBist v London & South Western Railway [1907] AC 209 at 211, McDermott v Owners of SS Tintoretto [1911] AC 35 and George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 436, 437. Such considerations, in my opinion, provide an added reason why the result should be as Giles JA has proposed.
67 It remains to say that I have some concern with that part of the judgment of Giles JA which commences with his statement that, at least in theory, the worker must prove the entire field of relevant human knowledge in order to say that the belief is not reasonably available. He says, however, that, although the legislature probably did not mean to impose such a burden, the field of knowledge clearly goes beyond the worker's actual knowledge and extends to regard to the opinion of his medical advisers and others such as the doctors qualified for the employer for the purposes of the claim for permanent loss and compensation. Later, he says that "the context is the worker's election suggests that the field of knowledge is that which was known or ought to have been known to the worker, but what the worker ought to have known is a slippery concept".
68 For my part I would approach the problem in the context of what, in all the circumstances, is reasonable. The words in the provision, "no reasonable cause to believe" lead to the conclusion that the legislature intended an objective test but one that was reasonable in the circumstances. What I think the court in a given case must do is to consider the medical opinions which were available at the time the election was made, the advice given to the employee and the employee's reaction to that advice. The court then needs to come to a conclusion, having regard to that evidence and the overall circumstances of the case, as to whether there was reasonable cause to believe that the further deterioration would occur. In a given case, a court might have a difficult factual problem but I do not myself perceive why the provision, expressed as it is, gives rise to any other difficulty.
69 In all other respects I agree, as I have said, with the reasons expressed by Giles JA. I also agree with the orders which he proposes.

______________

I certify that this and the 32 preceding pages are a true copy of the reasons for judgment herein of the Hon Justice Giles and of the Court.

Associate
2 June 1999