Corcoran v Tyre Marketers Australia

Case [2001] NSWCA 300

NEW SOUTH WALES COURT OF APPEAL

CITATION:      CORCORAN v TYRE MARKETERS AUSTRALIA [2001]  NSWCA 300

FILE NUMBER(S):
40877/99

HEARING DATE(S):               25 June 2001

JUDGMENT DATE: 11/09/2001

PARTIES:
Trevor Lawrence CORCORAN v TYRE MARKETERS AUSTRALIA

JUDGMENT OF:       Mason P Davies AJA Grove J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 5199/99

LOWER COURT JUDICIAL OFFICER:     Naughton DCJ

COUNSEL:
Appellant: A C Bridge SC/M Fordham
Respondent: P Hall QC/ L Giles

SOLICITORS:
Appellant: Capital Lawyers
Respondent: Hunt & Hunt Lawyers

CATCHWORDS:
Workers Compensation - back injury which subsequently worsened - pre-existing degenerative spinal condition - whether appellant could revoke election to claim permanent loss compensation - Workers Compensation Act 1987 s151A(5)(c) - whether, at the time of the election, there was reasonable cause to believe that further deterioration would occur - State of New South Wales v Taylor [2001] HCA 15 - Practice and Procedure  - joint request of parties that matter be dealt with afresh in Court of Appeal -  "dealing with the case on the evidence" - hearing de novo (D)

LEGISLATION CITED:

DECISION:
See par 100

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40877/99

DC 5199/99

MASON P
DAVIES AJA
GROVE J

Tuesday 11 September 2001

Trevor Lawrence CORCORAN v TYRE MARKETERS AUSTRALIA

On 18 July 1994 the appellant suffered injury to his back when changing a truck tyre.  He was employed by the respondent at Beaurepairs Goulburn.

Between July 1994 and August 1995 the appellant visited various medical practitioners and specialists, undergoing physiotherapy, myelography and exploratory surgery.  However, the appellant’s levels of pain and disability increased.  On 21 August 1995 the appellant’s employment was terminated because of his inability to work.

On 28 July 1994 the appellant completed a compensation claim.  On 25 October 1995 the claim was listed at the Goulburn Court House.  There were settlement negotiations and the appellant elected to settle, accepting the respondent’s offer of $45,000. 

The appellant now seeks to be relieved from this election.  His medical condition has continued to worsen, contrary to his expectation when he settled his compensation claim.  In July 1997 the appellant began proceedings against the respondent, claiming damages based on breach of employer’s duty of care.

In the District Court, Judge Naughton found that the appellant’s injury was the exacerbation of a pre-existing degenerative spinal condition in both his lower back and neck. The critical question for the Judge was whether s151A(5)(c) of the Workers Compensation Act 1987 had been satisfied.  That provision provides that a person may, with the leave of the court, revoke an election to claim permanent loss compensation if “at the time of the election, there was no reasonable cause to believe that the further deterioration would occur”.

Judge Naughton, applying Taylor v State of New South Wales (1999) 46 NSWLR 322, found that a reasonable person knowing what was or ought to have been known by the appellant in October 1995 would have expected the further deteriorations suffered by the applicant as something…

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Corcoran v Tyre Marketers Australia [2001] NSWCA 300
Case
[2001] NSWCA 300
Decision Date

CaseChat Overview and Summary

The appellant, Corcoran, appealed a decision concerning a workers compensation claim for a back injury that subsequently worsened, complicated by a pre-existing degenerative spinal condition. The primary dispute revolved around whether the appellant could revoke an election to claim compensation for permanent loss, pursuant to section 151A(5)(c) of the *Workers Compensation Act 1987*. The appellant also contended that the election did not extend to a neck injury.

The court was required to determine two main legal issues. Firstly, whether the primary judge erred in finding, based on the medical evidence, that there was reasonable cause to believe further deterioration of the appellant's condition would occur at the time of the election. Secondly, the court had to consider the scope of the appellant's election, specifically whether it encompassed a neck injury.

The court's reasoning was heavily influenced by the High Court's decision in *State of New South Wales v Taylor*. The majority in *Taylor* held that section 151A(5)(c) requires the court to assess whether it would be unreasonable to believe, based on the evidence before the court at the time of election, that further deterioration would occur. The onus rests on the applicant for revocation to prove a negative, that there was no reasonable cause to believe in further deterioration. This involves examining all relevant evidence concerning the medical condition and its prognosis at the time of election, including medico-legal opinions. The court's view of the evidence, not the injured person's belief, is decisive. If the evidence admits of two reasonable but opposing conclusions regarding further deterioration, the applicant fails to discharge the onus. The court noted that "no reasonable cause to believe" means "no cause for reasonably believing".

Orders

Orders of the court

See par 100

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant pressed two issues. First it was submitted that the judge erred in concluding on the medical evidence that, at the time of the appellant's election, there was reasonable cause to believe that further deterioration would occur. The Court was invited to determine the matter afresh, not to remit. Secondly it was submitted that the appellant's election did not extend to a neck injury.The impact of the High Court decision in Taylor In its recent decision in Taylor, the High Court (by majority) held that s151A(5)(c) requires the court to determine whether it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur. The reasonable cause for belief is determined by reference to the evidence before the court concerning the applicant's condition at that time and expert opinion as to what the medical prognosis for that condition was at that time. What the applicant knew or ought to have known is irrelevant. If the court determines that it would not be unreasonable for a person to believe that the further deterioration would occur, the application for revocation fails (see judgment of Gleeson CJ, McHugh and Hayne JJ at [4]). It was common ground before us, and correctly so, that the expert opinion upon which the medical prognosis for an applicant's condition was at the time of his or her election could include medico-legal opinion given ex post referable to the stated issue. In Taylor the majority said (at [12]) that:… the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. Taylor makes it clear that the onus rests upon the applicant for leave (see esp at [12]). The following passages in the majority judgment cast further light upon the judicial task(citation omitted):13. Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated.14. In determining the issue of "no reasonable cause to believe", the court does not determine whether, as a matter of probability, there was cause to believe that the further deterioration would occur. To approach the section in that way is to invert the negative proposition that it contains. On the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur. If there was, the application for revocation fails. If on the whole of the evidence, whatever its source or sources, the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails. It is irrelevant that, on the same body of evidence, it would also be reasonable to believe that the further deterioration would not occur. In a case where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur. 15. …. It is true that the notion of "reasonable cause", although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable nor unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments. In par (c), "no reasonable cause to believe" means "no cause for reasonably believing"….

Ratio Decidendi

Legal Principle Established

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