Key v Payne
[2004] VSCA 197
•4 November 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3342 of 2003
| ROY EDWARD KEY | |
| Appellant | |
| v. | |
| WILLIAM LAWRENCE PAYNE | Respondent |
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JUDGES: | ORMISTON and CHARLES, JJ.A. and HANSEN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 August 2004 | |
DATE OF JUDGMENT: | 4 November 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 197 | |
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ACCIDENT COMPENSATION – Workers compensation – Serious injury – Common law proceeding for damages – Proceeding commenced after 11 November 1997 – Amendments to legislation with retrospective effect to 12 November 1997 – Amendment to pre-conditions to bringing common law proceeding – Whether proceeding affected by amendments – Statutes – Interpretation – Retrospective operation – Application to pending proceedings – Accident Compensation Act 1985 s. 135A – Accident Compensation (Miscellaneous Amendments) Act 1997 ss. 2(2), 47, 51.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M.A. Scarfo | Warren Graham & Murphy |
| For the Respondent | Mr M.J. Corrigan | Herbert Geer & Rundle |
ORMISTON, J.A.:
Yet again the Court has had to consider the confused and confusing provisions of the Accident Compensation Act 1985. It would be more satisfying if the Court could approach this legislation as benevolent in effect and capable of being construed accordingly, but, so frequently have its provisions been seen to have been intended to have the opposite effect, that such an approach to equivocal provisions cannot fairly be prescribed. In the circumstances and notwithstanding the doubts I have about the legislative scheme and its operation in the present case, I would agree in the conclusions reached by Hansen, A.J.A. substantially for the reasons he has given.
CHARLES, J.A.:
I have had the advantage of reading the reasons for judgment prepared by Hansen, A.J.A. in this matter. I agree, for the reasons given, that the application be disposed of in the manner proposed by his Honour.
HANSEN, A.J.A.:
Introduction
This appeal concerns the effect of the amendments to the Accident Compensation Act 1985 (“the Act”) which came into operation on 12 November 1997 on a proceeding which the appellant subsequently commenced in the County Court. By that proceeding the appellant sought damages for personal injury suffered by him in a work-related accident on 24 March 1993. The statement of claim in that proceeding alleged that the appellant’s injuries constituted a serious injury within the meaning of the Act. The amendments to the Act were introduced by the Accident Compensation (Miscellaneous Amendment) Act 1997 (“the amending Act”). On 29 May 2003 the then defendant, (who may be regarded as the respondent), filed a summons
for an order pursuant to r. 23.01 of Ch. 1 of the County Court Rules of Procedure in Civil Proceedings 1999 (“the County Court Rules”) for an order that the proceeding be dismissed on the basis that no cause of action was disclosed. The respondent contended that the appellant had not been entitled to commence the proceeding since he had first failed to comply with the requirements of s. 135A(2DE) of the Act. The appellant contended that s. 135A(2DE) did not apply to his proceeding since he had an accrued right to bring a proceeding prior to the coming into operation of the amending Act. The learned County Court judge accepted the respondent’s contention and, on 14 August 2003, ordered that the proceeding be dismissed with costs. It is from her judgment and those orders that this appeal is brought. The case centres entirely around the processes and procedures mandated by s. 135A of the Act (as amended) for bringing proceedings in respect of personal injury suffered in the course of employment.
The events in this proceeding commence with the accident in March 1993 and involve multiple proceedings and numerous applications by the appellant to the Victorian WorkCover Authority (“the Authority”). Consequently it is necessary to set out in some detail the chronology of events up to the current appeal before this Court.
Background of dispute
On 24 March 1993 the respondent, understood at that time to be Bill Payne Pty Ltd, hired the appellant’s services, who was employed as a carpenter by R. E. & D. F. Key Pty Ltd, to perform carpentry work on a building site at Sale. During the course of that employment it is alleged by the appellant in his statement of claim that he was injured as a result of a plank of wood collapsing under his weight, causing him to fall to the ground.
On 10 July 1997 the appellant requested that the Authority carry out a determination of the degree of his impairment pursuant to s. 135A(3) and requested a certificate in the event of a determination that the degree of injury is less than 30 per cent pursuant to s. 135A(4). Under the above sub-sections, to institute proceedings for damages in respect of an injury the person must have a ‘serious injury’. An injury with a degree of impairment of 30 per cent or more is deemed to be a serious injury, whereas an injury with a degree of impairment of less than 30 per cent requires the Authority to be nevertheless satisfied that it is a serious injury and to issue a certificate consenting to the bringing of proceedings. If the Authority did not grant such a certificate the worker could apply to the court for leave to bring the proceeding.
On 4 September 1997 the Authority determined that the degree of impairment was less than 30 per cent, with the result that the appellant was not deemed to have a serious injury. By its letter advising this decision the Authority stated that the appellant could appeal the decision to the County Court.
On 5 October 1997 the appellant filed an originating motion in the County Court pursuant to s. 135A(4)(b) seeking a declaration that he suffered a serious injury within the meaning of s. 135A and requesting leave to bring a proceeding in respect of the injury. A court may only give such leave if it is satisfied that the injury is a serious injury.[1]
[1]See s. 135A(6).
On 17 March 1999 the appellant issued proceedings to avoid his claim becoming statute barred on 24 March 1999, there being a six year limitation period (“the first proceeding”). The defendant was named as Bill Payne Pty Ltd. Shortly afterwards the Authority issued the appellant a serious injury certificate on 22 April 1999 pursuant to s. 135A(4). The Authority determined that although the degree of impairment was less than 30 per cent, nevertheless it was satisfied that the injury was a serious injury and provided consent to bring proceedings for the recovery of damages in respect of that injury suffered as a result of the accident on 24 March 1993. This certificate was forwarded to the appellant’s solicitors on 3 May 1999.
On 8 June 1999 a conference took place between the parties as contemplated by s. 135A(2DE).
On 12 July 1999 the respondent made a statutory offer of nil plus retention of compensation payments received to date. On 30 July 1999 the appellant made a statutory counter offer of $395,000.00 plus retention of benefits paid to date. The respondent rejected the appellant’s counter offer by letter dated 30 August 1999.
On 16 September 1999 the respondent filed an appearance to the first proceeding and later filed its defence on 28 January 2000. In its defence the respondent denied all allegations and alleged contributory negligence by the appellant. No reference was made to any alleged defect in the appellant’s claim on account of non-compliance with s. 135A. No issue was raised in respect of compliance with s. 135A until the respondent filed an amended defence on 4 October 2000 which raised the issue of non-compliance with s. 135A and claimed that the appellant was barred from bringing the first proceeding.
On 16 January 2001 a judge ordered that the issue of whether the appellant had complied with s. 135A be heard as a preliminary point in the proceeding.
On 17 January 2001 the appellant applied to the Authority pursuant to s. 135A(6A) for its consent to the commencement of proceedings outside the time limit provided in s. 135A(2DE). Under sub-s. (6A) the Authority may consent to the bringing of an application if it is satisfied that the applicant is unable to commence proceedings because of the operation of sub-s. (4)(b) and the failure to comply with that sub-section was not due to any fault or omission of the applicant.
On 9 July 2001 the Authority refused the appellant’s application stating that it was not satisfied that the failure to comply with sub-s. (2DE) was not due to fault or omission on the part of the appellant.
On 25 June 2002 the preliminary point set down on 16 January 2001 was heard by a judge in the County Court. The respondent contended that the proceeding was a nullity since the writ had been issued on 17 March 1999 prior to the grant of a serious injury certificate. The certificate, as noted above, was subsequently granted on 22 April 1999. Consequently, the respondent submitted that the proceeding was not commenced in accordance with s. 135A(2DE). In response, the appellant submitted that this was a proceeding commenced not against an employer but against a non employer. Consequently, a different section of the Act, namely s. 135, applied. It is not necessary to further detail the submissions. The judge adjourned the application to a later date to enable the appellant to produce material which may give rise to a successful application to amend the statement of claim, but his view clearly was that as the matter stood, the proceeding was a nullity. On 26 July 2002 the judge ordered that the writ and statement of claim in the first proceeding be struck out.
The appellant’s next step was to apply to the Authority pursuant to s. 135A(6B) for consent to the commencement of proceedings. It seems that the application was delivered to the Authority on or around 15 November 2002. Sub-section (6B) allows the Authority to consent to the commencement of proceedings by the appellant where the appellant is unable to because of sub-s. (2DE). The Authority must consent within 81 days after the date of the counter offer and must be satisfied that the defence of the proceeding will not be prejudiced. Alternatively, the Authority may give its consent after 81 days provided that it is satisfied that the failure to comply with sub-s. (2DE) was not due to any fault or omission of the appellant.
On 1 April 2003 the Authority refused the appellant’s application stating that s. 135A(6B) was not relevant to the appellant’s application to issue proceedings outside the time limit in sub-s. (2DE) and noting that it had already made a determination on the appellant’s application under s. 135A(6A).
On 24 April 2003 the appellant re-issued proceedings against Bill Payne Pty Ltd (“the current proceeding”). The statement of claim was identical to that in the first proceeding. By facsimile dated 20 May 2003 the solicitors for the respondent notified the solicitors for the appellant that according to a company search, Bill Payne Pty Ltd had been deregistered on 28 April 2001 and that it had only been registered on 21 June 1993, some three months after the appellant sustained his injuries.
On 29 May 2003 the respondent filed a defence to the current proceeding. The defence denied negligence and alleged contributory negligence. It further alleged that the appellant had not complied with s. 135A and that he was therefore barred from bringing the proceeding. At the same time the respondent filed the summons for summary judgment upon which the orders under appeal were made.
On 27 June 2003 the appellant filed a summons seeking leave to amend the writ and statement of claim by substituting as the defendant William Lawrence Payne in lieu of Bill Payne Pty Ltd. The appellant also sought an order that the respondent’s application to strike out the current proceeding be dismissed. An affidavit sworn in support deposed that at no time since the appellant’s accident until 20 May 2003 did the Authority deny the existence of Bill Payne Pty Ltd.
The summonses were heard by the learned judge on 29 July 2003. Her Honour reserved her decision and gave judgment on 14 August 2003. At an early stage in the judgment, at [8], her Honour records that on 30 July 2003, by consent, the name of the defendant was changed as sought. For that reason the sole issue for determination was the respondent’s application.
Her Honour stated that the issue to be resolved was whether the appellant was required to comply with sub-s. (2DE) which had been introduced into the Act by the amending Act. Sub-section (2DE) requires that before commencing proceedings after the receipt of a serious injury certificate, a series of conferences and offers must be first pursued. The appellant submitted that the amendment did not apply to the current proceeding.
Her Honour held that the appellant was required to comply with sub-s. (2DE) as the serious injury certificate was not issued until 22 April 1999 subsequent to 12 November 1997. The appellant failed to follow the necessary steps set out in that sub-section, namely by issuing a writ within the correct time frame. This was fatal to the appellant’s claim. Accordingly, her Honour ordered that the proceeding be dismissed with costs.
The appeal
The appellant’s notice of appeal, served on 26 August 2003, seeks the setting aside of the orders below and in lieu an order that the respondent’s application be dismissed with costs. The notice of appeal contained seven grounds. In summary, these grounds all attacked the judge’s finding that the appellant was required to comply with s. 135(2DE) of the Act.
Leave to appeal
Counsel for the respondent submitted that the appellant required leave to appeal as the appeal is from “a judgment and order of the [County] court in an interlocutory application”.[2] In Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[3] the Court of Appeal decided that the expression “in an interlocutory application” referred to an interlocutory judgment or order. Hence, if the judgment or order is interlocutory, leave to appeal is required.
[2]See County Court Act 1958 s. 74(2D).
[3][1997] 2 V.R. 49.
Counsel for the appellant submitted, without developing the point, that leave was not necessary as this was an appeal from a final order, not an interlocutory order. However, in case the court found that leave was necessary, he asked that leave be granted. The Court reserved its position on the basis that it would hear the argument on the appeal, and if necessary consider the matter of leave in giving judgment.
The test for distinguishing between final and interlocutory judgments is now clear, and was conveniently and sufficiently (for the purpose of this case) stated by Gibbs, J. in Licul v. Corney as follows:[4]
“The other view which, since Hall v Nominal Defendant (1966) 117 CLR 423 should, I think, be regarded as established in Australia, depends upon the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
[4](1976) 180 C.L.R. 213 at 225.
Little v. State of Victoria[5] was similar to the present in that it was an appeal from an order made on an application under the rule in this Court (r. 23.01) which is the counterpart to r. 23.01 in the County Court Rules under which the orders now under appeal were made. In Little the appellant appealed from a decision of Beach, J. who had dismissed the appellant’s proceeding on the ground that the cause of action relied upon was not known to the law and had no prospect of success. The respondent had filed an application for summary dismissal pursuant to r. 23.01 of the Supreme Court (General Civil Procedure) Rules 1996 and, on appeal, Callaway, J.A. said that it may be assumed that the order was made pursuant to the rule. Callaway, J.A., with whom Buchanan, J.A. agreed, concluded that the order of Beach, J. was interlocutory. Callaway, J.A. observed that:
“…if a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed, it is highly desirable that there be no appeal except by leave. Leave will usually be granted in such cases if there is any doubt about the correctness of the decision below, but truly hopeless appeals should be prevented, to the advantage of the parties and other litigants waiting to be heard”.[6]
[5][1998] 4 V.R. 596.
[6]At 601.
The respondent, in addition to noting that its application in this proceeding was made pursuant to the equivalent County Court rule as that in Little, also noted that leave was sought and granted in both Dolling v. National Australia Bank Ltd[7] and State of Victoria v. Robertson.[8]
[7](2002) 5 V.R. 234.
[8](2000) 1 V.R. 464.
The decision of this Court in Little is clear authority that leave to appeal is required in the present case. In the circumstances of this case, it is not necessary to refer to further authority on the point or as to the test to be applied in determining whether to grant leave.
I turn now to the substantive question to be resolved and the parties’ submissions, however before doing so, set out the relevant sub-sections of s. 135A both prior to and after the 1999 amendments.
Section 135A prior to amendment
I turn first to the provisions of s. 135A as they were prior to the amendments. It was pursuant to these sub-sections that the appellant commenced the series of events outlined above with the aim of bringing the current proceedings and it is these sub-sections which the appellant submits govern the current proceeding. The relevant sub-sections for present purposes are as follows:
“(2)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-
(a)if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or …..
(2A)Subject to sub-section (2D), a worker may not bring proceedings in accordance with this section unless a determination of the degree of impairment of the worker has been made under sub-section (3).
(2B)Subject to sub-section (2C), the Authority, authorised insurer or self-insurer must make a determination under sub-section (3) within 60 days of receiving a written application for a determination from the worker.
(2C)…
(2D)If the Authority, authorised insurer or self-insurer has not within 60 days of receiving the application advised the worker in writing-
(a) of the determination; or
(b)of the refusal to make a determination under sub-section (2C) -
the worker is entitled to bring proceedings in accordance with this section and to have the question of whether or not the injury in respect of which the worker is seeking to receive damages is a serious injury determined in the proceedings.
(3)If the Authority, authorised insurer or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with section 91 be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
(3A)…
(4)If the Authority, authorised insurer or self-insurer has determined in accordance with sub-section (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless-
(a) the Authority, authorised insurer or self-insurer-
(i) is satisfied that the injury is a serious injury; and
(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b)a court, on the application of the worker, gives leave to bring the proceedings.
(5)…
(6)A court must not give leave under sub-section (4)(b) unless it is satisfied that the injury is a serious injury.”
Section 135A after amendment
Section 47 of the amending Act made several important changes to s. 135A of the Act. Section 47(2) introduced an amendment to s. 135A(2B) whereby the period in which the Authority has to make a determination was increased from 60 days to 120 days. Section 47(3) of the amending Act introduced a new sub-s. (2BA) which required that an application be in a particular form and accompanied by medical reports and affidavits. Section 47(4) amended sub-s. (2D) by removing the worker’s entitlement to bring proceedings and have the question of whether a serious injury exists determined in the absence of a determination from the Authority. Section 47(5) introduced, inter alia, sub-s. (2DB) which provided that the worker was deemed to have suffered a serious injury if the Authority failed to advise the worker in writing within 120 days that a determination had been either made or refused.
The critical provision for the current proceeding is sub-s. (2DE) which was introduced by s. 47(5) of the amending Act. This provides that a worker must not commence proceedings unless a series of conferences and events occurs, and is in the following terms:
“The worker must not commence proceedings in accordance with this section, other than an application under sub-section (4)(b) or the commencement of proceedings with the consent of the Authority under sub-section (6A) or (6B), unless –
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)the Authority or self-insurer does not accept that counter offer within 21 days after it is made; and
(e)the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under sub-section (2DG), not more than 30 days after the day on which the counter offer is deemed to have been made.”
The respondent submitted that the appellant was required to comply with sub-s. (2DE) and that his failure to do so results in his proceeding being void.
Section 47(8) of the amending Act introduced a new sub-s. (6A) to s. 135A which provided that the Authority may consent to the commencement of proceedings or the bringing of an application under sub-s. (4)(b), if satisfied that the worker was unable to commence proceedings because of the operation of sub-s. (2DE) or (4)(b) and the failure to comply with either was not due to the fault of the worker or his representative.
Subsequently, Act no. 82 of 2001 amended sub-s. (6A) by restricting it to the situation where proceedings cannot be commenced because of the operation of sub-s. (4)(b) and to giving consent to an application under sub-s. (4)(b). This same Act also introduced sub-s. (6B) which allowed the Authority to consent to the commencement of proceedings in certain circumstances if the worker is unable to do so by virtue of sub-s. (2DE).
Section 51 of the amending Act also introduced a new s. 138A into the Act which provided that all the provisions in Division 9 (including s. 135A) contained matters that are substantive law and not procedural in nature.
Having set out the relevant provisions of s. 135A for present purposes, I turn now to two decisions of the Court of Appeal in relation to this section which the parties have either sought to rely upon or distinguish.
Relevant law
Two cases have interpreted s. 135A of the Act and are relevant to the current proceeding. The first is State of Victoria v. Robertson, a decision of this Court.[9] In Robertson, the plaintiff injured herself on 1 January 1996 in the course of her employment. On 17 November 1997 the Authority made a determination that her degree of impairment was more than 30 per cent, and accordingly, she was deemed to have a serious injury. On 12 December 1997 the plaintiff commenced a proceeding to recover damages at common law for her injuries. Subsequently, the amending Act received Royal Assent on 23 December 1997 with the amendments introduced as set out above but which came into operation on 12 November 1997. None of the procedures required by sub-s. (2DE) had been undertaken by the plaintiff. The trial judge held, in summary, that s. 135A(2DE) did not apply to a proceeding which had already commenced when the amending Act received Royal Assent and treated the amendments as being procedural in nature and not rendering unlawful that which was lawful at the time.
[9](2000) 1 V.R. 464.
On the appeal, Batt, J.A. stated the question for decision as whether the amendments introduced by the amending Act were retroactive in operation so that the writ filed ought be regarded as incompetent notwithstanding that it was properly filed in accordance with the Act as it was before its amendment.[10] Batt, J.A., with whom Callaway and Buchanan, JJ.A. agreed, concluded that the question should be answered affirmatively and held that the presumption against giving legislation a retrospective construction was overturned by the provisions of the amending Act manifesting a contrary intention.[11] His Honour stated that:
“Here the necessary intendment of s 2(2) of the amending Act and the amendments to s. 135A is that subs (2DE) applies to proceedings pending as at 23 December 1997. No other conclusion is open.”[12]
[10]At [17].
[11]At [20].
[12]At [21].
In relation to the relevance or otherwise of sub-s. (18A) and (18B), Batt, J.A. said the following:
“The principal argument, as it seemed to me, was that, whatever may have been the position if it had not been enacted, subs (18B) of s 135A implies that, but for subss (18A) and (18B), the amended provisions of s 135A would not have applied to (as I understood the argument) steps taken before 23 December 1997, and if, as here, the cumulative requirements of subs (18A) were not satisfied, the amended provisions did not apply. I do not accept that subs (18B) warrants that implication. ... For subss (18A) and (18B) are ancillary, and therefore subordinate, provisions. The former is a transitional provision concerning a pending properly-made application for determination of the degree of impairment the time for determining which under the pre-existing law had not expired at 12 November 1997. It adapts the law previously applicable to such an application to the law as amended. Subsection (18B) complements that by making the section as amended apply, subject to subs (18A), to the application and, as I read subs (18B), to all that may follow it as if the application had been made under the section as amended. The two sub-sections in question, then, clarify how a particular pending matter is to be dealt with.”[13]
[13]At [23].
His Honour concluded that the effect of the amending Act was that the common law cause of action which arose when the determination was made on 17 November 1997, was extinguished on 23 December 1997. Hence, the plaintiff’s proceeding was commenced in breach of the qualified prohibition against commencement contained in s. 135A(2DE) from 12 November 1997. His Honour did however note that counsel for the respondent correctly refrained from submitting that sub-s. (2DE) applied to a proceeding for the recovery of damages of a worker injured on or after 1 December 1992, who commenced the proceeding before 12 November 1997 after obtaining an appropriate determination.[14]
[14]At [27].
The second case is Dolling v. National Australia Bank Ltd.[15] The plaintiff in this case commenced a proceeding on 24 December 1999 seeking damages from his employer for personal injury sustained in the course of his employment up until 7 January 1997. The defendant, in its defence, argued that the proceeding should be struck out for failure to comply with s. 135A(2DE). The plaintiff submitted that he had complied with the provisions of s. 135A prior to its amendment in December 1997 and was entitled to bring the proceeding on that basis. On 26 August 1997 the plaintiff had applied for an impairment assessment. He received no response within the period of 60 days allowed in sub-s. (2B) or indeed at all. Consequently, the plaintiff submitted that he was entitled, pursuant to sub-s. (2D) to bring proceedings to have the question of serious injury determined.
[15](2002) 5 V.R. 234.
The trial judge held that sub-s. (2DE) operated to restrict the institution of proceedings unless and until the requirements of that sub-section were satisfied before the writ was issued.
On appeal, Phillips, J.A., with whom Buchanan and Vincent, JJ.A. agreed, observed that the plaintiff’s submission, outlined above, was correct. Given the absence of a response within 60 days, the plaintiff became entitled under the statute to bring the proceeding. As the 60 days expired on 25 October 1997, the right to bring that proceeding vested in the plaintiff from 26 October 1997. His Honour said that:
“On that date the plaintiff acquired the right not merely to bring a proceeding, but to do so without the need for any further preliminary step under s 135A, and as well to have the question of serious injury determined within that proceeding.”[16]
[16]At [6].
Phillips, J.A. noted the common law presumption that statutes are not intended to prejudice rights previously defined by reference to existing facts and circumstances and in relation to this said:
“The right that the plaintiff acquired under s 135A as it stood before amendment by the amending Act was not the ‘mere right of a member of the public (or even of some class) to take advantage of a statute in the form in which it stood before amendment’; commonly such a ‘right’ does not survive the effect of the amendment, as I said in McDonald v Commissioner of Business Franchises. This was something more: for on 26 October 1997 the plaintiff became entitled, by virtue of an express provision in the statute itself and after himself taking the prescribed step of making application as required, to bring the proceeding that he later instituted, and to do so without any further preliminary step or condition and as well to have the question of serious injury determined within that proceeding. This was indeed a ‘right’ that ‘accrued’ to the plaintiff on 26 October upon default by the defendant (a self-insurer) in making response to the plaintiff’s application”.[17]
[17]At [12].
Thus, Phillips, J.A. applied the presumption against giving s. 135A, as amended, any force or effect in relation to an accrued right under the previous s. 135A(2D). Significantly, his Honour stated that:
“… I emphasise that I do not decide, and say nothing about, the case in which there was not a failure to respond within 60 days (as there was in this case) but a determination that the degree of impairment was less than 30%, where (as was not the case in Robertson) that determination was made before 12 November 1997.”[18]
[18]At [24].
It is precisely these circumstances which the Court is called upon to resolve now. In light of the provisions of s. 135A, both unamended and amended, and the judicial interpretation set out above, I turn now to the parties’ submissions.
Appellant’s submissions
At the heart of the appellant’s submissions is the contention that sub-s. (2DE) does not apply to the current proceeding and that he is not required to comply with it. However, I note at the outset that the appellant’s oral submissions differed in emphasis from his written outline of submissions, a matter noted by counsel for the respondent in his submissions. While the written submissions focused on the date of 4 September 1997 as being the date of the determination of the application, the oral submissions contended that the appellant had a vested right to continue with his application unaffected by the amendments, as distinct from a vested right to bring an action in the Dolling sense.
In his written outline of submissions, the appellant conceded that the first proceeding had been commenced before a serious injury certificate was granted and was therefore flawed and properly struck out. In contrast, the current proceeding was properly commenced after the grant of a serious injury certificate. The appellant submitted that sub-s. (2DE) was not applicable for the following reasons: first, the accident occurred on 24 March 1993 prior to 12 November 1997; secondly, an application was made to the Authority on 10 July 1997 prior to 12 November 1997; and thirdly, a determination was given by the Authority on 4 September 1997 prior to 12 November 1997 of an impairment of less than 30 per cent. Consequently, the appellant submitted that the application was determined on 4 September 1997 and that the subsequent grant of a serious injury certificate by the Authority on 22 April 1999 did not extend or alter the determination date to the said date. Insofar as the judge treated the grant of the certificate as the determination, her Honour erred, as the determination had occurred on 4 September 1997.
The outline continued that the judge erred by rejecting the appellant’s submission that “it was apparent from the effect of sub-s. (18A) and (18B) that in any case where an application was made pre-12 November 1997 and the Authority responded before 12 November 1997, the amendments to s. 135A do not apply.” By virtue of the transitional provisions, sub-s. (18A) and (18B), which were inserted by the amending Act, the Act as amended applies to an application made before 12 November 1997 to which no advice from the Authority is received before that date. As the Authority had made a determination by 12 November 1997 the appellant submitted that the unamended Act must apply to the proceeding. Counsel for the appellant emphasised in his oral submissions that he did not seek to rely on sub-s. (18A) and (18B). Rather he sought to rely on the absence of an equivalent provision to those sub-sections which covered the current circumstances.
Further, the appellant submitted that the judge erred in concluding at [15] of her judgment that a similar submission was rejected in Robertson. Batt, J.A. in Robertson noted that it was common ground that sub-ss. (18A) and (18B) were not applicable as the determination was not made until 17 November 1997.[19] Here, there is an important distinction, namely that the determination was made prior to 12 November 1997. The appellant submitted that it is clear from Robertson that the court did not reject the submission that the effect of sub-ss. (18A) and (18B), where an application and determination were made prior to 12 November 1997, was that the amendments did not apply. Robertson makes it clear that there is a specific factual situation which the legislature wished to affect through the insertion of those sub-sections, namely pending applications awaiting a determination.
[19]At [14].
In his oral submissions counsel for the appellant clarified at the outset that he was not submitting there was a vested right as occurred in Dolling, rather that the appellant had a vested right to continue his claim which commenced with the original application. This is not a case where mere procedural steps have been taken. They are steps which carry rights with them and should not be blocked by the amendments.
The appellant submitted that the amended legislation was never intended to stretch back to events prior to 12 November 1997. In these circumstances where an application for determination was made, as required by the unamended Act, and where a determination had been made prior to 12 November 1997, the fact that determination was less than 30 per cent impairment should not of itself determine whether the amendments are applicable. The appellant observed that Phillips, J.A. in Dolling had left open this very question, as noted above, and correctly distinguished Robertson. The appellant submitted that Phillips, J.A. in Dolling suggested that the amended legislation only applied to pending matters prior to 12 November 1997.[20] That is to say, that it applied to applications in which there had not yet been a determination, whether favourable or unfavourable, and the period of time within which the Authority had to make a determination had not yet expired.
[20]At [17].
The appellant further submitted that a number of unjust consequences would result if the amendments applied to his claim. First, given that there is no transitional provision governing the current circumstances, the appellant would be required to recommence his claim to comply with sub-s. (2BA) notwithstanding that he had already completed several steps of the mandated process when the amendments commenced. If this were the case, there would be no need to have sub-ss. (18A) and (18B) at all if the retrospectivity had the effect claimed by the respondent.
In his reply, the appellant submitted that his interpretation that only pending applications were subject to the amendments was not altered by sub-s. (4A). This provides that if a worker makes an application for a determination of the degree of impairment, no further such application should be made unless it is the first application made after the Authority has refused to make a determination in the circumstances set out in sub-s. (2C), namely where the injury may not have stabilised.
Respondent’s submissions
The respondent urged the court to apply the decision in Robertson where there was a determination on 17 November 1997 that the degree of impairment was more than 30 per cent. Consequently, the plaintiff was deemed to have a serious injury. In the present case, the determination by the Authority on 4 September 1997 that the degree of impairment was less than 30 per cent meant that the appellant was not deemed to have a serious injury. It was not until the issue of the serious injury certificate pursuant to sub-s. (4) on 22 April 1999 that this occurred. The respondent submitted that the latter certificate was the equivalent of the determination in Robertson, both of which were subsequent to 12 November 1997. Further, the only difference between Robertson and the present case (leaving aside when the writs were issued) was that in Robertson there was no initial determination that the impairment was less than 30 per cent. The respondent submitted that it would be an extraordinary result if a favourable determination (in Robertson) were to place the appellant in a less favourable position than an unfavourable determination (as occurred here).
The court in Robertson recognised that the common law cause of action did not arise until the making of the determination on 17 November 1999.[21] In accordance with this decision, the respondent submitted that a cause of action can only arise in the following ways: first, a favourable determination by the Authority under sub-s. (3); secondly, the issue of a serious injury certificate by the Authority under sub-s. (4)(a); thirdly, consent by the court under (4)(b); fourthly, consent by the Authority under sub-ss. (6A) or (6B). If, as in the current circumstances, there is an unfavourable determination, a cause of action will only arise when one of the above subsequently occurs.
[21]At [26].
The respondent distinguished Dolling on the basis that, unlike Dolling, no right had accrued to the appellant prior to 12 November 1997 and rejected the appellant’s submission that any determination, whether more or less than 30 per cent, would have entitled him prior to 12 November 1997 to issue proceedings. In Dolling, the plaintiff had an express entitlement under sub-s. (2D) of the Act “to bring proceedings” and “to have the question of whether or not the injury in respect of which the worker is seeking to receive damages is a serious injury determined in the proceedings” due to the failure by the Authority to respond to her claim within 60 days.
In the present case sub-s. (2D) is not applicable as a determination has been made by the Authority within 60 days. Thus, sub-s. (2A) is applicable, which is in prohibitive terms, namely “a worker may not bring proceedings” unless a determination of the degree of impairment has been made under sub-s. (3). Sub-section (3) then provides the threshold test for a serious injury, namely an impairment of 30 per cent or more, and sub-s. (4) restricts the ability of a worker to bring proceedings where a determination of impairment of less than 30 per cent is made.
The respondent submitted that s. 135A(18A) is of no assistance to the appellant as it deals with a specific situation where an application had not been determined prior to 12 November 1997 but the time frame for determination had not yet expired. Here, there had been a determination, but it was an unfavourable determination for the appellant and one which did not entitle him to commence proceedings.
In response to a submission of the appellant that the period for holding a conference imposed by sub-s. (2DE) was not complied with, thereby implying I interpolate, that strict compliance with sub-s. (2DE) was not required by the appellant, the respondent submitted this was incorrect for the following reasons. Paragraph (a) of sub-s. (2DE) provides that a worker must not commence proceedings until the worker and the Authority hold or begin a conference within 21 days after the response date. “Response date” is defined in sub-s. (19) as the date on which the period of 28 days expires after the determination date. “Determination date” is defined as either the date on which the injury is determined, deemed or declared by a court to be a serious injury, or the date a certificate is issued under sub-s. (4)(a). In this proceeding, the respondent submitted that the determination date was 4 May 1999, the following day from when the serious injury certificate was forwarded to the appellant’s solicitors. It follows from this that the response date is 1 June 1999 (28 days afterwards) and that a conference was required to be held or begun by 22 June 1999 (21 days afterwards). The conference was held on 8 June 1999 within that time frame. Paragraph (b) of sub-s. (2DE) required that the Authority make a statutory offer in writing to settle the claim within 60 days of the response date (31 July 1999). The respondent made an offer on 12 July 1999 within that time frame. Paragraph (c) of sub-s. (2DE) required the appellant, upon his failure to accept that offer, to make a counter-offer within 21 days of the offer (2 August 1999). The appellant made a counter-offer on 30 July 1999. Paragraph (e) of sub-s. (2DE) finally required that, after the refusal by the Authority of the appellant’s counter-offer, proceedings be commenced no earlier than 21 days and no later than 51 days after the counter-offer is made. Consequently, the respondent submitted that the appellant could have filed a writ between 20 August 1999 and 19 September 1999 to comply with sub-s. (2DE) having participated in and complied with the conference and offer procedures set down by (2DE). The appellant failed to do so. There was no impossibility of compliance in these circumstances which would reinforce a particular interpretation as in Dolling.
The respondent conceded that the amending Act was draconian in that it took away common law rights by the retrospective operation of the provisions. However, it was clear that the amending Act intended to do so. The appellant’s cause of action did not accrue, in a qualified sense, until 22 April 1999, and his actual entitlement to sue did not accrue until the expiration of 21 days after the appellant’s counter-offer set out in sub-s. (2DE)(e).
The respondent submitted that the present case is an example of a “mere right of a member of the public (or even of some class) to take advantage of a statute in the form in which it stood before amendment”[22] and that such a “right” does not commonly survive the effect of the amendment.[23]
[22]See Dolling at [12] per Phillips J.A.
[23]See McDonald v. Commissioner of Business Franchises [1993] 2 V.R. 632 at 649 per Phillips J.A.
In response to the appellant’s submission that an application was on foot, the respondent contended that this by itself was insufficient without filing a writ. Merely taking steps in accordance with a mandated process is not sufficient to claim an accrued right. Support for this proposition is found in the decision of Director of Public Works v. Ho Po Sang.[24] The respondent also noted that if the court were to find that there was an accrued right, the decision in Robertson would necessarily have to be reconsidered.
[24][1961] A.C. 901 at 924.
The respondent submitted that the old and the new provisions of s. 135A sit together comfortably. The Act, as amended, does not require a person to resubmit his application for determination and provide medical reports and affidavits as required by sub-s. (2BA) because the appellant has already passed that stage. These steps which have been taken should not be considered ineffective due to the amendments. The respondent also conceded that if an originating motion was filed seeking the court’s determination, that should be considered part of the application previously launched. Similarly, a serious injury certificate could be regarded as a certificate under both the unamended and amended provisions. The respondent referred to sub-s. (4A) which provides that if a worker makes an application for a determination under sub-s. (3), the worker must not make a further application for determination unless it is the first application made after the Authority has refused to make a determination under sub-s. (2C). This sub-section makes it plain that an application under the unamended Act is still treated as an application because no further application is allowed except in certain circumstances.
In summation, the respondent submitted that it was possible for the appellant to have followed the procedure set out in sub-s. (2DE) and then commenced a proceeding. He failed to do so and instead filed applications under sub-ss. (6A) and (6B) in January 2001 and November 2002 which were unsuccessful. In April 2003 the appellant then filed the writ commencing the current proceeding. In these circumstances there is no need to strain the language of s. 135A and the decision in Robertson in order to get a different result here.
Conclusion
In the end, the issue requiring determination in this matter is a narrow point and can be stated thus: whether the appellant, in circumstances where he had made an application to the Authority for a determination and the Authority had determined that the degree of impairment was less than 30 per cent prior to 12 November 1997 when the amendments took effect, was obliged to comply with the amendments, in particular s. 135A(2DE).
For the reasons which I set out below, it is clear from previous authority and the provisions of s. 135A that the appellant was obliged to comply with sub-s. (2DE) and his failure to do so means that he is barred from bringing proceedings.
As noted at [50], the court is now called upon to determine the applicability of the amendments in precisely the circumstances left open by Phillips, J.A. in Dolling. However, it is evident that the plaintiff in Dolling had, prior to 12 November 1997 when the amendments took effect, the right to bring proceedings pursuant to sub-s. (2D) without the need for any further preliminary step under s. 135A to have the question of serious injury determined. This right had accrued to the plaintiff on 26 October 1997 upon the defendant’s default in responding to the plaintiff’s application. This is not the situation in the current proceeding before the court. While the Authority made a determination on 4 September 1997, it was not a determination which gave the appellant a right to bring proceedings. To the contrary, the appellant is expressly denied a right, subject to the issue of a certificate by the Authority or the consent of the court, to bring proceedings by sub-s. (4) in circumstances where the Authority has determined that the degree of impairment is less than 30 per cent. It follows from this that the appellant had to engage in a further series of steps and receive a favourable outcome in respect of them before he had the right to bring proceedings. For this reason Dolling is distinguishable and provides no assistance for the appellant.
On the other hand, the circumstances in Robertson closely resemble those the subject of the current appeal. In that case the Authority had made a determination in favour of the plaintiff that her degree of impairment was 30 per cent or more on 17 November 1997. Batt, J.A. noted that that was all that was required at that time to bring proceedings under the Act. However his Honour found that there was a clear intention in the amending Act that the amendments apply to proceedings pending as at 23 December 1997 (the date of Royal Assent of the amending Act).[25] Although the plaintiff’s cause of action arose on 17 November 1997, it was held to have been subsequently extinguished on 23 December 1997.[26] I accept the respondent’s submission that the grant by the Authority of a serious injury certificate on 22 April 1999 was the equivalent of the determination in Robertson as it was only upon the occurrence of those events that the plaintiffs’ causes of action arose under sub-s. (3) and sub-s. (4)(a) respectively. Both of these events occurred subsequent to 12 November 1997. In accordance with the decision in Robertson, I find that the clear intention of the amending Act was to apply to all pending applications where, prior to 12 November 1997, the plaintiff was not presently entitled to bring proceedings.
[25]At [21].
[26]At [26].
It is clear from a reading of sub-ss. (18A) and (18B) that these provisions are of no assistance to the appellant as they apply to applications made before 12 November 1997 to which the Authority has not made a determination but the time for doing so has not expired. This is not the case here. However, the appellant sought to rely on the express application of the amendments to such applications by sub-s. (18B) as evidence of a legislative intention that the amendments did not apply to other applications already being progressed. I find no support, either in the express terms of s. 135A or by implication, for this and I reject the submission.
It was possible for the appellant to comply with sub-s. (2DE) by filing a writ between 20 August 1999 and 19 September 1999. His failure to do so is somewhat surprising, and unfortunate, given that the appellant participated in the conference and exchange of offers under sub-s. (2DE). This is not a case of impossibility of performance due to the introduction of the amendments thereby causing unjust hardship to the appellant.
For these reasons, I would refuse leave to appeal and dismiss the appeal.
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