Paget v JLT Workers Compensation Services Pty Ltd
[2005] VSCA 144
•9 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3753 of 2003
| WILLIAM MICHAEL PAGET | |
| Appellant | |
| v. | |
| JLT WORKERS COMPENSATION SERVICES PTY. LTD. and GLENELG SHIRE COUNCIL | Respondents |
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JUDGES: | WINNEKE, A.C.J., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 March 2005 | |
DATE OF JUDGMENT: | 9 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 144 | |
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Accident compensation – Refusal of leave to bring common law proceedings, not because worker did not suffer “serious injury” but because of restrictions in s.135AC – Whether order final or interlocutory – Leave to appeal granted nunc pro tunc – Whether question arising under s.135AC to be determined at same time as application for leave to bring proceedings – Burden of proof under s.135AC – Whether incapacity became known more than three years before worker’s application for a determination under s.135A(2B) – County Court Act 1958, s.74(2D) – Accident Compensation Act 1985, ss.135A, 135AC.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T.P. Tobin, S.C. with | Stringer Clark |
| For the Respondents | Mr J.H.L. Forrest, Q.C. with Mr P.H. Solomon | Wisewoulds |
WINNEKE, A.C.J.:
For the reasons given by Callaway, J.A., I agree that the appellant should be granted leave to appeal from the order made by the County Court on 22 September 2003; that the appeal should be allowed; and that the order of the County Court should be set aside and, in lieu thereof, an order made that the appellant have leave to bring proceedings for the recovery of damages pursuant to s.135A(4)(b) of the Accident Compensation Act 1985.
CHARLES, J.A.:
Having had the advantage of reading the reasons for judgment prepared by Callaway, J.A., I agree that the appellant should have leave to appeal and that the appeal should be allowed and that there should be orders made as proposed by his Honour, for the reasons given.
CALLAWAY, J.A.:
By an originating motion dated 14th October 2002, filed in the County Court on 22nd October 2002, the appellant sought leave pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 to bring common law proceedings against his employer, the second respondent, for injuries suffered by him in the course of his employment in July 1996. The first respondent is the authorized insurer of the second respondent. On 2nd September 2003 the respondents filed a summons seeking that “the proceeding” be dismissed, or in the alternative permanently stayed, on the basis that it was commenced contrary s.135AC of the Act.
The provisions of s.135A are well known. In cases to which they apply, they permit common law proceedings for damages to be brought if, and only if, the intending plaintiff is able to access one of a number of “gateways”. In this case the relevant gateway was that in sub-s.(4)(b), which provides that, in certain circumstances, a person may not “bring proceedings for the recovery of damages” in respect of an injury unless a court “gives leave to bring the proceedings”. It is a condition precedent to a grant of such leave that the court be satisfied that the intending plaintiff’s injury is a “serious injury” as defined in sub-s.(19)[1].
[1]The condition precedent is in sub-s.(6).
Section 135AC provides:
“135AC. Limitation of Actions Act 1958
Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced –
(a)subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b)if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
On 5th and 9th September 2003 the learned primary judge heard argument as to whether he should hear the summons at the same time as the originating motion. His Honour ruled that he should do so. The originating motion and the summons were then heard together on 10th and 11th September 2003. On 22nd September 2003 his Honour made an order that the appellant’s application be dismissed.
The judge was satisfied that the appellant had suffered a serious injury and recorded that the respondents had not really contested that issue. In his Honour’s opinion, the appellant emphatically met the test in Humphries v. Poljak[2]. The application was refused because of the provisions of s.135AC(b). The date three years prior to the appellant’s application for a determination under s.135A(2B) was 7th June 1999. It was common ground that the burden of proof under paragraph (b) lay on the appellant. The judge was not satisfied that the incapacity arising from the injury had not become known to the appellant before[3] that date. Indeed his Honour was not satisfied that it was not known until after 12th November 1997.
[2][1992] 2 V.R. 129 at 136.
[3]His Honour said “as at” and “by”, but the application made by the appellant on 7th June 2002 would still have been in time if his incapacity had become known on 7th June 1999.
The appeal was brought in the belief that it lay as of right and the notice of appeal was served within 14 days after the order dismissing the application was made on 22nd September 2003. That order was, however, an “order … in an interlocutory application” within the meaning of s.74(2D) of the County Court Act 1958. The reasoning in Dodoro v. Knighting[4] is applicable to it: the application pursuant to s.135A(4)(b) was not a principal cause and it matters not that it was defeated by reference to s.135AC. Dodoro v. Knighting was decided after the appeal was brought and the appellant’s solicitors acted in accordance with the former practice. In my opinion, the Court should regularize the appeal by granting leave to appeal nunc pro tunc. The criteria for such leave are satisfied.[5]
[4][2004] VSCA 217 especially at [23]-[24].
[5]Dodoro v. Knighting at [25].
The appeal raises three principal questions for consideration:
· first, whether the judge was right to deal with the summons at the same time as the originating motion and to allow s.135AC to be used as an answer to the application under s.135A(4)(b);
· secondly, whether, as the parties assumed below, it was for the appellant to establish that the incapacity arising from the injury was not known until after 12th November 1997 and that his application for a determination under s.135A(2B) was made before the expiration of three years after the date the incapacity became known; and,
· thirdly, whether the judge erred in deciding that those requirements of s.135AC(b) were not satisfied.
The appellant, who was born on 14th March 1969, left school at the completion of year 9. He worked on farms for two years, then with Partos in Portland for five years and then with CSR Softwoods for three years. He left those last two employments when the businesses closed. He was then unemployed, except for some irregular work unloading fishing boats, until he commenced employment with the second respondent, the Glenelg Shire Council, in May 1996 rebuilding parts of the Great South West Walk. The appellant was working at a location where there were very large rocks that had to be smashed with a jackhammer. On 10th July 1996 the jackhammer broke and had to be returned to the company from which it had been hired in order to be repaired. The appellant’s supervisor instructed him to carry the jackhammer up the hill on which they were working. He started carrying it up the hill and immediately felt back and leg pain. “It was”, he said in his affidavit, “like someone had stabbed me.” He took the rest of the day off but, the following morning, he was still in severe pain.
The appellant was unable to perform even light duties and was off work for over a year. He then began work with Cempac in Portland prior to its closing and thereafter with Chemsel at Laverton before moving back to the Hamilton area to begin work at Grampians Wool. In mid-1998 his position there was as a machine operator. He carried out the normal duties of a person in his classification until November 2000, when he was given the job of pressing wool. That meant he had to bend, pick up the wool and put it in a press. It was much heavier work than he had been doing and his back began to trouble him more. He began taking time off work because of his back, which he had not previously done during his time with Cempac, Chemsel or Grampians Wool.
In July 2001 the appellant suffered an unrelated elbow injury. He was off work until late October or early November. When he returned, he could not cope with his work, because of his back. He has not worked since March 2002.
The appellant swore, in his affidavit, that the incapacity caused by the 1996 injury did not become apparent to him until he began pressing wool. In examination in chief he was asked when he first got to the stage in his own mind that he did not feel capable of carrying out a day’s work. He said that it was after he finished pressing. In cross-examination he agreed that he had always had a problem but said that he had learned to block it out, for fear that he would not be able to get employment. He had been very lucky with the three jobs he had had, because he had not had to fill out any forms before he started. He also agreed that, as early as 1997, he knew that he had, in the cross-examiner’s words, “an incapacity for heavy work” and that it was “a long-term incapacity”.
At first sight, there is a straightforward answer to the first question in [9] above, namely that his Honour could not give “leave” under s.135A(4)(b) to “bring” proceedings that, under s.135AC, could not lawfully be “commenced”. Mr Tobin argued that that straightforward answer should be rejected for three main reasons. First, s.135AC cannot be used to deny access to any of the other gateways in s.135A, so that it would be anomalous if it applied only in relation to s.135A(4)(b). Secondly, an application under s.135A(4)(b) is of a summary nature. It proceeds on affidavit and oral evidence, including evidence from medical practitioners, is limited. Thirdly, s.135AC does not make it unlawful to commence proceedings of the kind to which it refers. It is just a procedural hurdle.
I do not think that the second of those reasons can safely be used to construe the legislation. If, on its true construction, an application under s.135A(4)(b) may be defeated by reliance on s.135AC, it is for the County Court to devise appropriate procedures, so that both issues may be determined fairly. It is not an answer that the rules of court require an application under s.135A(4)(b) to be brought by originating motion or that the practice of the court confines oral evidence. The first reason has more substance. As will appear later, the third reason does not assist the appellant.
The scheme of s.135A is that the “serious injury” issue is to be resolved first. Subject to a residual discretion in hopeless cases[6], of which this is not one, that is the issue with which the gateways are concerned. The Victorian WorkCover Authority or a self-insurer may fail to advise the worker in accordance with sub-s.(2DB), in which case the worker is deemed to have suffered a serious injury. The Authority or self-insurer may determine that the worker’s degree of impairment would, if assessed in accordance with s.91, be 30% or more, in which case the injury is deemed to be a serious injury. If the determination is less than 30%, the Authority or self-insurer may nevertheless be satisfied that the injury is a serious injury and issue a certificate consenting to the bringing of common law proceedings. A court may grant leave to bring such proceedings if it is satisfied that the injury is a serious injury.
[6]Alcoa of Australia Ltd. v. McKenna (2003) 8 V.R. 452 at 460 [19].
I accept Mr Forrest’s submission that Alcoa of Australia Ltd. v. McKenna[7] is distinguishable because it concerned the relationship between s.135A(4)(b) and s.135A(2) and the latter sub-section, unlike s.135AC, speaks of the recovery of damages rather than the commencement of proceedings. I also accept his submission that different gateways may have different incidents and that it is not necessarily anomalous that access to only one gateway may be denied by reference to s.135AC. Nevertheless, if there were nothing more to be said, there would still be force in Mr Tobin’s first reason if the scheme of s.135A is to focus on “serious injury”, in its own right, as a preliminary issue and s.135AC would distract attention from that issue.
[7](2003) 8 V.R. 452.
There is, however, more to be said. The respondents filed a notice of contention pursuant to rule 64.17(5), to the effect that the decision below could be supported on the basis that the words “proceedings in accordance with section … 135A” in s.135AC include an application, pursuant to s.135A(4)(b), for leave to bring common law proceedings.
Mr Forrest advanced four arguments in support of the notice of contention.[8] First, the relevant words in s.135AC are unqualified. There is no reason, counsel argued, why they should not include a proceeding begun by originating motion.[9] Secondly, the Act that introduced s.135AC, the Accident Compensation (Miscellaneous Amendment) Act 1997, also introduced s.135A(2DE), which expressly refers to “proceedings in accordance with this section, other than an application under sub-section (4)(b)”. The 1997 Act also introduced s.135A(2DD). That sub-section begins, “In proceedings in accordance with this section …”. It has always been assumed that that includes an application under s.135A(4)(b)[10]. Thirdly, counsel said, the legislature would have used the phrase “proceedings for the recovery of damages”, rather than simply the word “proceedings”, if the intention had been to refer only to substantive proceedings and not to an application for leave[11]. Finally, reliance was placed on the unreported decision of Phillips, J.A. and Bongiorno A.J.A. in Boral Kinnears Pty. Ltd. v. Dias[12].
[8]A fifth argument concerned the appellant’s reliance on Alcoa of Australia Ltd. v. McKenna but, as I have already said, I accept that that case is distinguishable.
[9]See, for example, rule 1.13 of the Supreme Court and County Court rules.
[10]See also the concluding words of s.135A(2BA), (2DA), and (18A).
[11]That is the phrase used in s.135A(13)(b) and (13A), which were also introduced by the 1997 Act.
[12]Unreported, Court of Appeal, 26th March 2004. This case does not have a VSCA number, because their Honours were simply disposing of a routine application on a Friday.
In my opinion, the second and third of those arguments should be accepted. The first argument simply clears the ground. The fourth argument is not conclusive because of the nature of the application and the fact that the order might be explained in more than one way. The decisive point, to my mind, is that the legislature has provided a dictionary in s.135A(2BA), (2DA), (2DD) and (18A) and, more particularly, in s.135A(2DE). Those sub-sections show that an application under s.135A(4)(b) falls within the description “proceedings in accordance with this section”. It is appropriate to apply that dictionary to the expression “proceedings in accordance with section … 135A” in s.135AC.
Mr Tobin argued that, if that were so, a worker who wished to apply for leave under s.135A(4)(b) might first need to obtain a declaration of compliance with s.135AC and, in practice, that could not be done within the 30-day time limit prescribed by s.135A(4)(b). The answer to that submission is that s.135AC does not make it unlawful for a worker to make an application under s.135A(4)(b). I accept the third reason Mr Tobin advanced for rejecting the straightforward answer[13], but it does not assist the appellant. The question whether it was open to the worker to apply for leave under s.135A(4)(b), having regard to s.135AC, may be determined after the proceeding under s.135A(4)(b) is commenced.
[13]See [14] above.
It follows that the judge was right to deal with the summons at the same time as the originating motion and to allow s.135AC to be used as an answer to the application under s.135A(4)(b).
The second question identified in [9] above was whether it was for the appellant to establish that the incapacity arising from the injury was not known until after 12th November 1997 and that his application for a determination under s.135A(2B) was made before the expiration of three years after the date the incapacity became known.[14] That question should be resolved as one of statutory construction, unaffected by preconceptions derived from equating s.135AC with, for example, s.5(1) or (1A) or s.27 of the Limitation of Actions Act 1958[15] or provisions requiring notice to be given to a municipal council before an action is brought[16]. Section 135AC may be sui generis[17]. Be that as it may, our primary duty is to give effect to the words that Parliament has used in the context in which they appear[18].
[14]This question was raised by the Court, rather than the appellant, but, for the proper resolution of other cases, it should be considered. Mr Forrest, properly, did not oppose that course. The judge said that the burden of proof under s.135AC was not really debated: it lay on the defendant in respect of the matters stated in paragraph (a); the defendant had satisfied that burden; and the burden in respect of the matters stated in paragraph (b) lay on the plaintiff.
[15]See, for example, Pullen v. Gutteridge Haskins & Davey Pty. Ltd. [1993] 1 V.R. 27.
[16]See, for example, Harding v. Lithgow Corporation (1937) 57 C.L.R. 186.
[17]That includes its being different from the provisions considered in Wilson v. State of Victoria [2004] VSCA 55.
[18]Compare Vines v. Djordjevitch (1955) 91 C.L.R. 512 at 518-521.
It is convenient to consider s.135AC(a) first. Putting self-insurers to one side, the essential provision in paragraph (a) is that proceedings must not be commenced unless an application has been made to the Authority before 1st September 2000. The words “Despite anything to the contrary in the Limitation of Actions Act 1958” and “subject to the Limitation of Actions Act 1958” simply mean that the paragraph imposes an additional restriction which applies despite anything to the contrary in the Limitation of Actions Act but, if there is an applicable restriction in the Limitation of Actions Act, that restriction applies too.
The natural implication of the words of paragraph (a) is that, in the case of a proceeding under s.135A(4)(b), the worker must satisfy a condition precedent. He or she must show that an application was made to the Authority before 1st September 2000. It is not decisive that the words “proceedings … must not be commenced” mean the same thing as “actions shall not be brought” in s.5(1) of the Limitation of Actions Act. This is an additional procedural requirement and, in any event, an application under s.135A(4)(b) is not itself a common law proceeding. The right to make the application is conferred by statute and the statute imposes the restriction in s.135AC(a).[19]
[19]Compare TheCrown v. McNeil (1922) 31 C.L.R. 76 at 96 per Knox, C.J. and Starke, J. and 99 per Isaacs, J.
Again putting self-insurers to one side, the essential provision in s.135AC(b) is that proceedings must not be commenced unless an application has been made to the Authority before the expiration of three years after the date the incapacity became known. For similar reasons to those applicable to s.135AC(a), it is for the worker to show that an application was made to the Authority in time. It is part and parcel of that burden that the worker may have to prove that the incapacity did not become known more than three years before the application was made.[20]
[20]See [7] above.
That leaves for consideration the opening words of s.135AC(b). Paragraph (a) contains a restriction (the part of the paragraph beginning with the second “unless”) that is applicable to all cases to which paragraph (b) does not apply. The opening words of paragraph (b) define the case to which that paragraph applies. The restriction in the part of paragraph (b) beginning with the word “unless” then applies instead of the restriction in paragraph (a). The case to which paragraph (b) applies is where the cause of action arose before 12th November 1997 and the incapacity was not known until after that date.
It is not strictly necessary, for the purposes of this appeal, to decide who bears the onus of establishing that the opening words of paragraph (b) are, or are not, satisfied, i.e. the burden of establishing which restriction – the restriction in paragraph (a) or the restriction in paragraph (b) – applies[21]. The appellant had to show that the incapacity arising from the injury in 1996 did not become known before 7th June 1999. If so, the incapacity was not known until after 12th November 1997.
[21]One possible view is that, where there is a dispute as to which paragraph applies, it is for the party asserting that paragraph (b) applies to show that the cause of action arose before 12th November 1997 and that the incapacity was not known until after that date. In most, perhaps all, cases that party will be the person bringing the proceedings.
The third question identified in [9] above therefore comes down to whether the judge erred in not being satisfied that the incapacity arising from the injury had not become known to the appellant before 7th June 1999. His Honour directed himself correctly with respect to the burden and standard of proof in relation to that issue. It is to be borne in mind, however, that it is a straight question of fact: there is no element of discretion or anything akin to a value judgment. As I mentioned earlier, the judge said that the appellant emphatically met the test in Humphries v. Poljak. He has suffered a “serious injury” as defined in paragraph (a) of the definition in s.135A(19). Moreover, there is no question of credit: the judge described the appellant’s evidence as “candid and forthright”. Finally, it is to be remembered that the test is “knowledge”, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the appellant[22].
[22]I take knowledge, in this context, to be at least justified true belief. I do not know something unless I believe it and it is true and I have appropriate grounds for my belief. The last condition is necessary to distinguish knowledge from speculation or a lucky guess. I do not stay to consider whether there may be further conditions in some cases.
Section 135A(2)(b) provides that a worker may recover damages in respect of an injury if, among other things, “the incapacity arising from the injury did not become known until” 1st December 1992 or a later date. That provision is relevantly similar to s.135AC(b). In State of Victoria v. Collins[23] Winneke, P., in whose reasons Brooking and Chernov, JJ.A. concurred, said that “the incapacity arising from the injury” was not the temporary incapacity for work produced by the initial insult, but rather was “serious injury” incapacity, which becomes known when events demonstrate that the victim of the injury is, for the purposes of that case and the present case, suffering from a serious long-term impairment or loss of a body function. As I said earlier, it is not enough that events demonstrate that to others: the fact of serious long-term impairment or loss of a body function must become known to the worker.
[23][1999] 1 V.R. 215 at 222.
Mr Forrest concentrated his submissions on the appellant’s knowledge on or before 12th November, 1997. By that time the appellant knew that he had suffered a disc injury; he had been off work for over a year, having ceased work because of the condition of his back; he had continuing back pain and referred right leg pain, and the back pain had not been alleviated by spinal manipulation under general anaesthetic; he had “a long-term incapacity for heavy work”; doctors had told him that he was fit for light work only and some had advised surgery; his leg and back pain affected not only his work but also his daily activities; he could not work on a fishing boat, because of the motion of the boat and the absence of medication; and he had provided his employer in 1996 and 1997 with certificates from his treating doctors to the effect that he was either fit for light duties only or totally unfit for work. Counsel submitted that there was no relevant change after November 1997. The appellant obtained employment with Cempac, Chemsel and later with Grampians Wool, but each of those employments was in a lighter work category, consistent with his limitations.
Mr Tobin concentrated on June 1999. At that stage, he pointed out, the appellant was in full-time employment and had been so for nearly two years; he continued in that employment for another three years; he had not required any medical treatment since May 1997; he was coping with the work and believed that he would continue to cope with it; and he was earning between $38,000 and $40,000 per annum, more than he had ever earned in the past. As the judge acknowledged, “there was in some [medical] quarters optimism expressed that the injury would improve with time”. That had not happened to any significant degree, but why, counsel asked rhetorically, should that optimism not have communicated itself to the appellant, a married man with a large family who wanted to work and believed, correctly as it proved for some years, that he could hold down a job if he could “get in the door”?
It is only the burden of proof that makes me hesitate to conclude that, even if the serious nature of the appellant’s incapacity would have been apparent to others, it did not become known to him before 7th June 1999. He said more than once in his evidence that he had learned to block the pain out in his mind. That betokens self-reliance, not self-deception.
It is always unsatisfactory, in a civil case, to reach a conclusion based solely on the burden of proof, all the more so if the conclusion appears to work an injustice[24]. I do not consider that we should take that course. We are dealing with a question of fact on a Warren v. Coombes[25] appeal. We are not disturbing the exercise of a discretion or second-guessing a value judgment and the judge accepted the appellant as a witness of truth. All he had to prove was an absence of knowledge, not an absence of suspicion or of facts from which persons of less fortitude might have drawn a more pessimistic conclusion.[26] In my opinion, he discharged that burden.[27]
[24]The judge said that it was ironic that the appellant could understandably, perhaps properly, take the view that the failure of his application was because of his decision not to litigate his injury but to attempt to support his five children by dint of his own hard work, under difficulties.
[25](1979) 142 C.L.R. 531 at 551.
[26]Referring back to fn. 22 above, as Mr Tobin submitted, the appellant lacked the requisite belief, even if the other conditions would have been satisfied.
[27]I do not overlook the fact that one can be working but still have a serious injury: see, for example, State of Victoria v. Glover [1998] VSCA 93 and Barlow v. Hollis [2000] VSCA 26.
I would make orders in accordance with the following minutes:
1.Grant the appellant leave to appeal nunc pro tunc from the order made by the County Court on 22nd September 2003.
2. Allow the appeal and set aside that order.
3.In lieu thereof, order that the appellant have leave to bring proceedings for the recovery of damages pursuant to s.135A(4)(b) of the Accident Compensation Act 1985.
I would hear counsel on the question of costs, but prima facie the appellant should have his costs here and in the court below.[28]
[28]See s.135A(13)(a).
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