Salvatore Lemura Mark Anthony Sutcliffe and Barry Brown v Workers Rehabilitation and Compensation Corporation Nos. Scgrg-96-1318, Scgrg-96-1694, Scgrg-97-0017 Judgment No. 6173 Number of Pages 14 Workers' Compensation

[1997] SASC 6173

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON, OLSSON AND WILLIAMS JJ

Workers' compensation - three appeals against dismissal of claims for compensation for non-economic loss by way of a lump sum for permanent loss of capacity to engage in sexual intercourse - interpretation of words "application or request for such compensation" in s34 of the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 - appeal of Brown successful - question of costs pursuant to s92A - relevant tribunals erred in depriving Lemura and Sutcliffe of their costs. WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 170 LSJS 129; Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods Employer) (1993) 61 SASR 487, applied.

ADELAIDE, 11 April 1997 (hearing), 30 May 1997 (decision)

#DATE 30:4:1997

#ADD 3:6:1997

Appellants:

Counsel: Ms M E Shaw with her Mr C J Kourakis

Solicitors: Palios Meegan And Nicholson

Respondents:

Counsel: Mr S Walsh QC with him Ms J Grundy

Solicitors: For Lemura Piper Alderman; for Sutcliffe & Brown Thomsonson

Order:

MATHESON J

1. These three appeals which were argued, and which I now consider, together concern the proper interpretation of s34 of the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act, 1995. Each of the appellants argues that he should have been awarded compensation for non-economic loss by way of a lump sum for permanent loss of the capacity to engage in sexual intercourse. Before quoting s34, it is necessary to quote s43 of the principal Act which, so far as material, provides: "43.(1) Subject to this Act, where a worker suffers a permanent disability and the disability is compensable under this Act, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum.

(2) Subject to this section, the lump sum shall be a percentage of the prescribed sum determined by reference to schedule 3." 2. Sections 33 and 34 of the Amendment Act provide: "33. Schedule 3 to the principal Act is amended by striking out the item - Permanent loss of the capacity to engage in sexual intercourse .....70;"

"34.(1) This Act applies to disabilities arising from traumas occurring before the commencement of this Act ('old disabilities') and disabilities arising from traumas occurring after the commencement of this Act ('new disabilities') subject to the following qualification (a) the amendments made by this Act do not affect - (i) the principles on which weekly payments for a period of incapacity falling before the commencement of this Act are assessed; or (ii) compensation for non-economic loss relating to loss or impairment of the capacity to engage in sexual intercourse if an application or request for such compensation had been made before 12 April; and (b) ..." 3. It is to be noted that although the Amendment Act did not come into operation until 25 May 1995, the legislature deliberately chose the last day of the sitting, namely 12 April 1995, as the "cut-off date", (s34(1)(a)(ii)).

4. I propose to look at the sequence of events relating to each appeal before considering the argument for the appellants.

5. Lemura's Notice of Disability and Compensation Claim were dated 28 October 1991, and alleged that he sustained an injury on 24 October 1991. In answer to the question on both documents, namely "What injury(ies) or condition did you suffer", the following answer is given, "Bruises (top of chest) and emotional shock". On 19 November 1991 the respondent wrote to Dr P Kreminski requesting a medical report and the answers to a number of questions, including the questions "What is the nature and extent of the injury and the worker's current condition?". In a report dated 6 January 1992 Dr Kreminski said he saw the appellant on the date of the injury. He said that on the following day "the tenderness was still evident and bruising had become evident in the tender area. I prescribed a mild sedative and spent some time counselling Mr Lemura as to how to cope in the situation". He also said in his report that "although Mr Lemura's physical injuries quickly faded, his emotional injury still troubles him". On 6 February 1992 the respondent wrote to Dr J R Clayer, a psychiatrist, requesting a report and asking, inter alia: "What is the history of the stress experienced? In summary what assessment techniques have been used to make the assessment. This should include some objective measures and not only a case history.

Are there any contributing factors to the disability? If so, to what extent?

Please provide a clear description of the physiological and physiological correlation of the stress response of the individual and the effects of these on work performance?" 6. Dr Clayer's report is dated 24 February 1992, and includes the following passages: "He says he has become increasingly irritable, so that he and his wife are fighting frequently. His relationship with his wife has deteriorated to such an extent that they have only had sexual intercourse three times in the past six months ...

His condition at the time he saw Dr. K[r]eminski, and probably for a period of two months after that, is that Mr Lemura was suffering from a reactive depressive state with features of anxiety. However, at the time that I saw him, I formed the impression that Mr. Lemura, although he is still concerned and anxious about his future, is not suffering from any psychiatric illness." 7. On 24 April 1992 the respondent wrote to the appellant stating, inter alia: "Your claim for 'bruising to chest and neck' which was sustained on 24/10/91 and subsequent incapacity for work has been accepted. We have determined that you are totally incapacitated for work ..." 8. On 1 May 1995 the respondent wrote to another psychiatrist, Dr Blakemore, stating, inter alia, that it continued to receive prescribed medical certificates from Dr Kreminski for "chronic anxiety state", and seeking a report. The letter included the following passage: "The claim for anxiety which occurred on 24/10/91 has been accepted." 9. On 3 May 1995 solicitors acting for the appellant Lemura, namely Palios, Meegan and Nicholson, wrote to the respondent in the following terms: "We refer to our client's claim for compensation.

We would be appreciative if the WorkCover Corporation would attend to making a Section 43 determination in relation to our client's injuries in accordance with the Third Schedule of the Workers Rehabilitation and Compensation Act, 1986 including our client's entitlement for permanent loss of capacity to engage in sexual intercourse." 10. On 31 May 1995 the respondent received a report from Dr Blakemore which included the following statements: "Mr Lemura said that, as well, his sex life has been 'zero' since this happened ...

Mr Lemura said that he is not often interested in sex, since all this happened, and if his wife is interested in sex then he is not, and he said this is something that they discuss all the time, and he is not happy with it." 11. On 8 June 1995 the respondent wrote to the appellant Lemura, and that letter included the following passage: "We refer to your claim dated 3 May 1995 for loss of capacity to engage in sexual intercourse under Section 43 of the Workers Rehabilitation & Compensation Act. The Corporation wishes to advise that there is no further provision for such payments under the Act, further to the Workers Rehabilitation & Compensation (Miscellaneous Provisions) Amendment Act 1995. The Corporation therefore determines that you have no entitlement to a lump sum under Section 43 of the Act, and your Section 43 claim as referred to above is denied." 12. The appellant Lemura applied for a review. Review Officer Mr G Harbord confirmed the determination of the respondent. In his reasons, he said: "I find that the worker's solicitors, by way of a letter dated 3rd May, 1995 to the "WorkCover Corporation first made a specific request for a lump sum payment for loss of capacity to engage in sexual intercourse. I find that the worker did not make an application or request for compensation pursuant to Section 43 of the Act for loss of capacity to engage in sexual intercourse before 12th April, 1995. I find therefore, that the worker has no entitlement to compensation for any such loss pursuant to Section 43 of the Act." 13. The appellant Lemura appealed against the determination of the review officer. His appeal was heard by the Workers Compensation Appeal Tribunal presided over by his Honour Deputy President G M N Thompson. His Honour dismissed the appeal, and said: "In my view the amending Act makes it perfectly clear that compensation for the disability in question is abolished unless there has been a request prior to 12 April 1995. The content of that request will doubtless vary from time to time. However, the request must be of a specific nature based on this specific disability. The proposition that a general form of a Section 52 request indicating an injury to the chest and emotional stress does not fulfil that purpose. Parliament intended that those claims which were properly and specifically made prior to 12 April 1995 would be preserved. Those and no others. The words of the statute cannot be read down or widened to include a general claim for compensation for all and any types of benefits under the Act ...

I would not in any event regard the passage in Dr. Clayer's report as giving any real indication that such a claim was in prospect." 14. Sutcliffe's Notice of Disability and Compensation Claim forms dated 26 November 1991 alleged that he sustained an injury in "approximately September 1991", and that his injury was "back injury disc L4 - L5".

15. On 4 February 1993 a solicitor, Mr Ivan Margitich, wrote to the respondent in which he said, inter alia: "Please advise if you do propose to make an assessment pursuant to s43 of the Act and if so when such assessment is likely to be made." 16. In a report to the respondent dated in error 21 January 1993, and apparently written on 21 December 1993, the neuro-surgeon, Mr Paul Carney, said, inter alia: "1. I consider no further treatment is necessary.

2. His injury can be regarded as stabilised. He can be regarded as having a permanent residual disability of the loss of the full and efficient use of the lower back and lumbar spine of the order of 7% of function. As far as I am aware of this disability is related to the injury he has described. His prognosis is good, but he is likely to continue to suffer from minor symptoms and he remains restricted in terms of repetitive bending and heavy lifting as described previously." 17. The report did not refer to any alleged loss of the capacity to engage in sexual intercourse.

18. On 23 February 1994 the respondent wrote to the appellant Sutcliffe and stated, inter alia: "The Corporation has determined with respect to the disability to your lower back/lumbar spine sustained by you on 15/10/91, which disability arose from your employment with Philmac P/L, that:

(a) the disability is permanent and is compensable under the Workers Rehabilitation & Compensation Act, 1986, as amended;

(b) as a result of the disability you have lost 7% of the full efficient use of your lower back/lumbar spine;

(c) pursuant to Section 43 of the above Act you are entitled to compensation for non-economic loss by way of lump sum in the amount of $4,967.20.

The Corporation, in fixing the above percentage, has taken into account the opinions expressed by the medical practitioner in the medical report annexed to this letter as follows:

Medical report of Dr Paul Carney.

The Corporation has fixed the above percentage on the following basis:

Dr Carney has assessed the loss of function of your lower back/lumbar spine at 7%." 19. The offer was apparently rejected, and on 9 June 1994 the respondent wrote to an orthopaedic surgeon, Mr Adrian von der Borch, asking for another opinion. In his report to the respondent dated 23 June 1994, Mr von der Borch said: "He is concerned by the persistence of back and left buttock pain, which comes on easily if he does any bending or lifting, or if he stands too long, sits too long, or undertakes sexual intercourse. At times, he experiences what he describes as 'funny feelings' in the left leg, but he does not have significant left leg pain." 20. Mr Carney then reviewed the appellant Sutcliffe on 22 August 1994, and in his report of that date he said: "He said that he had difficulty with sexual intercourse as this would cause a lot of pain in the back.

He said nevertheless he did not have many opportunities and had no regular partner so was unable to supply further information concerning his sexual activities." 21. In a letter to the respondent dated 8 April 1995, Palios Meegan and Nicholson, the appellant Sutcliffe's solicitors, said: "We refer to previous correspondence herein. Please find enclosed herewith photographs taken of our client's scarring as a consequence of his injuries.

We ask that the WorkCover Corporation make a Section 43 assessment in relation to disfigurement." 22. Palios Meegan and Nicholson wrote to the respondent again on 11 May 1995 in the course of which they said, inter alia: "We remind you of our client's claim for Section 43 assessments. We also remind you of your obligation to make Section 43 assessments in relation to all entitlements that our client is and was due for ...

We ask that the appropriate Section 43 assessments be made in relation to disfigurement and sexual incapacity ..." 23. The appellant Sutcliffe's application for review came for came on before Review Officer Harbord. In the course of his evidence, he said that in a discussion with his case manager, Ms Osborne, he told her that he had a lot of problems with his back and one of the details that he mentioned was that he was having trouble with sexual intercourse. He said there was not anything said in regard to that matter after that. In his determination made on 14 February 1996, Mr Harbord said, inter alia: "I find that the worker was a credible witness. However, I do not consider that his evidence provided any further assistance to his case in this matter. I find that he simply discussed the difficulties he was having because of his back disability with his case manager. He himself admitted that he had not made any request for a lump sum payment in relation to his alleged loss of capacity to engage in sexual intercourse. I find that any reference to a loss of capacity to engage in sexual intercourse in that conversation or in the medical reports was simply descriptive of the extent of the worker's lower back disability and did not constitute an application or request for loss of capacity to engage in sexual intercourse as a separate entitlement.

I find that the worker's solicitors by way of a letter dated 11th May, 1995 to the WorkCover Corporation first made a specific request for a lump sum payment for loss of capacity to engage in sexual intercourse. Having regard to all the evidence, I find that the worker did not make an application or request for compensation, pursuant to Section 43 of the Act, for loss of capacity to engage in sexual intercourse before 12th April 1995. I find therefore, that the worker has no entitlement to compensation for any such loss pursuant to Section 43 of the Act." 24. Sutcliffe's appeal to the Workers Compensation Appeal Tribunal was heard and dismissed by her Honour Deputy President Judge H W Parsons.

25. The appellant Brown's compensation claim is dated 8 March 1989. He alleges therein an injury sustained on 2 March 1989, and describes it as "lower lumbar pain (slipped disc)".

26. In a report to Palios Meegan and Nicholson dated 7 November 1990, a family therapist, Diana Gilbert, stated that "he was unable to have sexual relationship due to his pain". In a report dated 3 December 1991, Mr Graham Wright, an occupational physician, said: "He cannot enjoy sex and does not sustain an erection because of back pain. He is able to ejaculate." 27. In a report dated 21 September 1992, Dr Darryl Bassett, a psychiatrist, said: "He had lost confidence in his sexual performance and commented 'I feel empty inside' ..." 28. Later Dr Bassett said: "As I have outlined in the body of my report I feel that Mr Brown's social domestic sexual and recreational activities have all been adversely affected by his chronic pain and depression . The extent of recent interference (over the last twelve months) appears to have been moderately severe and a moderate level of impairment persists." 29. In a report dated 23 September 1992, Dr Adrienne Walker, a general practitioner, said: "Mr Brown's social, domestic, sexual and recreational activities have been greatly affected by the condition. From a previously confident, fit and well young man, happy at home and work, with a good self image he has become a far less physical person, lacking in confidence, severely depressed, negativistic, unable to form new relationships, having lost his marriage and sexual relationship and seeing his son only intermittently." 30. The respondent sought a report from a psychiatrist, Dr J A Scanlon. Dr Scanlon referred to the appellant Brown's history, including the fact that he started living with a woman at the end of 1986 and separated in June 1990. The appellant told him "I left, because the strain got to both. I was aggressive to her, I did not mean to ... pain ... couldn't make love.".

31. On 31 March 1995, Palios Meegan and Nicholson wrote to the respondent in the following terms: "RE: OUR CLIENT:BARRY BROWN EMPLOYER: GLEN McMAHON DEMOLITION WORKCOVER CLAIM: 43 SEXUAL INCAPACITY CLAIM NO: NOT KNOWN

We advise that we have been instructed to act on behalf of Mr Barry Brown with respect to a claim for a lump sum pursuant to Section 43 of the WorkersRehabilitation and Compensation Act, 1986 for permanent loss of the capacity to engage in sexual intercourse resulting from his back injury sustained in or about January 1989.

Please find enclosed herewith the original account of Dr R. D. Fraser dated 25th July 1994 totalling the sum of $43.00.

We would be appreciative if the WorkCover Corporation would kindly attend to payment of the enclosed account." 32. Palios, Meegan and Nicholson obtained a report from Dr Brian Cohen, a general surgeon, dated 6 April 1995. It included the following: "In regards to his capacity to engage in sexual intercourse, he said that this causes a lot of pain which would stop him engaging several times a week. The frequency used to be 6 or 7 times a week, but he is not engaging at all at the moment, and has not for the last 12 months. He has engaged very little since the injury, and probably went down to approximately once every 4 or 5 months. He also complained that he has difficulty in maintaining an erection, but his libido is still very strong.

In regards to position, he said since the injury he has engaged in the prone uppermost and the supine positions, but it is still too painful. Before his injury he would engage in many positions, including being prone, supine, on his side, standing, sitting and kneeling.

In regards to the duration, he said that each time has not been able to complete engagement fully, and has not been able to ejaculate intravaginally because of the loss of erection due to pain.

He said he has a son aged 7. He was in a relationship for 5 years, but this broke up 18 months after his injury due to frustrations, which involved both sexual ones as well as mental.

This gentleman does have a probable 55 percent loss of capacity to engage in sexual intercourse, this being consequent upon his lumbar spinal injury." 33. On 24 April 1995, Palios, Meegan and Nicholson wrote to the respondent, and I set out that letter in full: "RE: OUR CLIENT: BARRY WILLIAM BROWN EMPLOYER: GLEN MCMAHON DEMOLITION WORKCOVER CLAIM: 43 SEXUAL INCAPACITY CLAIM NUMBER: NOT KNOWN

We refer to previous correspondence.

Please find enclosed herewith a copy of the medical report prepared by Dr B G D Cohen dated 6th April 1995, for your consideration.

We further enclose herewith the original account of Dr B G D Cohen dated 6th April 1995 for the preparation of his medico-legal report totalling the sum of $437.00.

We would be appreciative if the WorkCover Corporation would kindly attend to payment of the enclosed account.

We hereby request a Section 43 determination to be made according to the Workers Rehabilitation and Compensation Act in relation to our client's ability to engage in sexual intercourse. If you do not make the determination within the prescribed time we will issue and[sic] application for special review." 34. Brown's application for review came before Review Officer Player-Brown, and in a preliminary determination dated 31 May 1996 he found that s34 of the Amending Act did not affect the worker's entitlement to have any loss of capacity to engage in sexual intercourse assessed pursuant to s43 of the Act. The review officer said: "Section 34 of the Amending Act then appears to envisage that a request or application can take some other form.

The Shorter Oxford English Dictionary defines 'application' and 'request' similarly, referring to an application as encompassing a request to a person. It may be, as suggested by my colleague Review Officer Harbord in his determination no. 96-0058 (Sutcliffe and WorkCover Corporation (Philmac Pty Ltd)) that 'applications', as used elsewhere in the Act, must be in written form and 'requests' may be conveyed orally.

On that analysis, the letter of 31st March 1995 constitutes an 'application' for compensation.

However, whether considered an application or request, what is clear is that the worker communicated to the decision maker a desire for something to be done.

Accordingly, I find that letter sufficient in satisfying the requirements of Section 34 of the Amending Act and that the worker is thereby entitled to have assessed any compensation of a non-economic loss relating to loss or impairment of the capacity to engage in sexual intercourse." 35. The respondent's appeal to the Workers Compensation Appeal Tribunal was successful, and in his reasons for decision published on 20 December 1996, his Honour Deputy President F K Cawthorne said: "It seems to me that although in using the words 'application or request' in the provision under consideration Parliament envisaged as appropriate something less than a formal claim for compensation the requirements for which are set out in Section 52 of the Act it nevertheless envisaged that in order to comply with the provision a worker should have applied to or asked (even in an informal way) a compensating authority for an assessment of the subject impairment prior to the cut off date. The requirement in itself is not an onerous one. By way of example in my opinion as with the position under the Workman's Compensation Act, 1897 (U.K.) ('The U.K. Act') there is no requirement to specify any sum; Thompson v. Goold & Co. [1910] A.C. 405. However as I see it at the very least the Act contemplates notification to the compensating authority either verbally or in writing of the worker's wish that the authority assess his/her entitlement to compensation for the subject impairment.

I agree with Ms. Grundy that the March letter cannot be construed as containing an application or request for compensation in respect of that loss or impairment and that at best it can only be construed as notice that a claim in respect of that disability may be made in the future. By analogy with the position under the U.K. Act albeit in the context of a requirement to make a claim for compensation (Perry v. Clemments (1901), 17 T.L.R. 525) in my opinion advice of instructions to act with respect to a claim in respect of the subject impairment does not amount to an application or request for such compensation within the meaning of the amending Act. No reasonable person in the position of the compensating authority would have understood that it was required to do anything as a result of receipt of the March letter other than attend to the payment of the account of Dr. Fraser; Violanti v. Tarant's Manufacturing Pty Ltd (1985) 1 W.C.R. (Vic) 123. The worker in respect of the loss of sexual capacity issue could not have sought to expedite the matter pursuant to Section 102.

I also agree that if Parliament had intended that notice of intention to make a claim preserved the relevant rights then it could have easily said so.

In the circumstances the appeal will be allowed and the determination of the Review Officer reversed." 36. Mrs Shaw QC, senior counsel for the appellants, pointed out that all the appellants had lodged a compensation claim in a form which had been approved by the respondent, and in a form which did not require the worker to specify what the worker was claiming. Her first argument was that the lodgment of such a form activated the claims of the respective appellants for loss of the capacity to engage in sexual intercourse as soon as the respondent became aware of such losses, even if it was only as the result of a reference thereto in a medical report. In the alternative, she argued that if the law required something more, the "request or application" could be made in a very informal way, even by way of a medical report.

37. As to the first argument, it is necessary to consider a number of sections of the principal Act, and a useful starting point is the following passage in the judgment of King CJ in WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 170 LSJS 129 at p138, (Perry and Duggan JJ concurring) where the relevant sections are referred to: "Section 30 provides that a disability is compensable if it arises from employment. A compensable disability may give rise to a number of entitlements to compensation. There is an entitlement to medical expenses which arises when medical expense is incurred (s.32). An entitlement to compensation for property damage arises when such damage is incurred (s.34). An entitlement to weekly payments by way of income maintenance arises when incapacity for work results from the disability (s.35). Entitlement to compensation by way of a lump sum for non-economic loss arises when the compensable disability takes on the character of a permanent disability (s.43).

The machinery for obtaining compensation is provided in Division VIII. Notice of the disability must be given as soon as practicable (s.51). Section 52 provides for claims for compensation. It is not easy to determine what this section envisages as constituting a claim for compensation. There are indications that the claim contemplated by the section is not a claim for non-specific compensation but is a claim for compensation under one or more of the disparate entitlements conferred by the Act. Thus the prescribed period within which a claim must be made commences 'on the day on which the entitlement to make the claim arises', and, as I have pointed out, the Act confers disparate entitlements to compensation. Section 53(3) appears to refer to claims for specific compensation. Section 53(4) speaks of a claim as relating to a particular entitlement, namely income maintenance. Section 53(5) speaks of the rejection of part of a claim and that would not be apposite if the contemplated claim were non-specific in character. On the other hand, the claim must be made 'in a manner and form approved by the Corporation' and the approved form on which the worker made his claim made no provision for specific claims." 38. King CJ returned to the same topic in Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods Employer)
(1993) 61 SASR 487. At pp489-490, his Honour said: "The claim envisaged by s52 is a claim for compensation. It is not a claim to have a disability accepted as compensable. A claim for compensation made pursuant to s52 must be for one or more of the entitlements to compensation conferred by the Act. It is surprising that the prescribed form does not provide for particulars of the pecuniary claim, but the structure of the form cannot influence the interpretation of the Act. This view of the nature of the claim under s52 receives some confirmation from subss(6a) and (7). The former contemplates a claim under the section limited to medical expenses under s32. The latter defines the prescribed period within which a claim for compensation must be made as commencing, not from the onset of the disability as might be expected if the claim related to acceptance of the disability as compensable, but from the day on which the entitlement to make the claim arises. The entitlement arises when the worker incurs one or other of the heads of expense or loss for which compensation is payable.

The claim which was before the Corporation was therefore a claim to be compensated under one or more of the heads of entitlement provided in the Act. It is clear from the reasons for decision of the Review Officer that the Corporation regarded itself as seized of a claim for income maintenance. It made interim payments by way of income maintenance pending its decision.

The Corporation notified the worker of its determination in the following terms:

'Your claim for "strain lower back" has been denied. The reasons for denying your claim are as follows:

The disability sustained on 10.3.93 did not arise out of or in the course of employment and therefore pursuant to Section 30(2)(a) is not compensable. In addition pursuant to Section 53(3)(b) you have failed to submit to an examination by a recognised medical expert nominated by the Corporation, reasonably required to determine the claim.'

The Review Officer, after hearing oral evidence from the worker and considering medical reports, made the following determination:

'Accordingly, pursuant to s96 of the Act, I set aside the decision of the Corporation made on 6 August 1992 and substitute a determination to accept the claim and for income maintenance (to be adjusted accordingly for partial incapacity) to be paid up to 26 October 1992.'

The claim which was rejected by the Corporation was a claim, in my opinion, for compensation by way of income maintenance. If the Corporation had decided that there was a compensable disability, it would have been obliged to determine the amount and, at least in due course, the duration of the income maintenance."

39. These two passages save the need to quote extensively from the principal Act, and, in my opinion, they are fatal to Mrs Shaw's first argument. There may have been cases in the past where compensation has been awarded for more than one entitlement to compensation merely as a result of the lodgement of the one approved claim form, but that experience can not influence the interpretation of the Act.

40. Mrs Shaw sought to bolster her alternative argument by reference to the judgment of Collins MR in Lowe v M Myers & Sons (1906) 2 KB 265. At p271, his Lordship said: "... I desire to call attention to a passage in Lord Halsbury's speech in Powell v. Main Colliery Company [1900] A.C. 366, 371, where he says: 'I wish to say something, apart from the mere words, upon the whole of the statute itself. It appears to me that the statute deliberately and designedly avoided anything like technology. I should judge from the language and the mode in which the statute has been enacted that it contemplated what would be a horror to the mind of a lawyer, namely, that there should not be any lawyers employed at all, and that the man who was injured should be able to go himself and say, 'I claim so much,' and that then he should go to the county court judge and say, 'Now please to hear this case because my employer will not give me what I have claimed.' It appears to me that that is the meaning and construction of the whole statute, and that is what the Legislature intended, and that is the reason why it avoided any technical phrases. It strikes one at once that, if anything which to a lawyer's mind would be in the nature of a technical application or a technical commencement of the litigation was intended, the Legislature was competent, and had sufficient knowledge to say what it meant.' That clearly shews that in construing this Act we are as far as possible to deal with it simply and to avoid all reference to what Lord Halsbury calls 'technology.' Therefore I do not think that these documents ought to be treated with the nicety of pleadings in judicial proceedings in the High Court. I think that the statute must be taken to have meant to use the simplest possible means of placing the facts before the Court." 41. I reject Mrs Shaw's alternative contention. I consider the choice of the words in s34(1)(a)(ii) is significant, not least the words I am about to emphasise "an application or request for such compensation ...". In my opinion, the employer or the Corporation (as the case may be) must have been notified before 12 April 1995 that the worker is claiming compensation under s43 for "permanent loss of capacity to engage in sexual intercourse".

42. I have reached the clear conclusion that the appeals of Lemura and Sutcliffe against the dismissal of their claims should fail. In neither case was the necessary application or request made before 12 April 1995. I have hesitated about Brown's appeal. There is no claim for compensation for loss of the capacity to engage in sexual intercourse in the body of the letter of Palios, Meegan & Nicholson dated 31 March 1996, but it is headed "Workcover claim: Section 43 Sexual Incapacity", and I am prepared to find that the letter as a whole amounted to an "application or request". In the end, I have concluded that the review officer's decision was correct and that Brown's appeal should be allowed. In my opinion, the respondent should pay his costs of the appeal to the Tribunal.

43. On the question of the costs of the appeals of Lemura and Sutcliffe to the Tribunal, the respective Deputy Presidents ordered each party to pay their own costs. The relevant costs provision was s92A which provided: "92A. (1) Subject to this section, a review authority [which includes the Tribunal] is empowered to award costs and must, in doing so, observe the following principles: (a) a party is entitled, subject to limits fixed by the regulations, to reimbursement of the costs of the proceedings; (b) a party (other than the Corporation or an exempt employer) who is represented by a legal practitioner or an officer or employee of a registered association is entitled, subject to limits fixed by the regulations, to the cost of representation; (c) if the proceedings are frivolous or vexatious, costs (which may exceed the limits fixed by the regulations) may be awarded against the party by whom the proceedings were brought.

(2) The award may cover not only costs related to proceedings before the review authority but also (where relevant) related conciliation proceedings.

(3) A review authority may decide against awarding costs to which a party would otherwise be entitled under this section, or reduce the amount of such costs, if of the opinion that the party acted unreasonably in bringing, or in relation to the conduct of, the proceedings.

(4) Where costs of representation are awarded, the award may be made, if the review authority thinks fit, in favour of the representative.

(5) Unless otherwise ordered by the review authority, costs awarded under subsection (1)(a) or (b) are payable by the Corporation or an exempt employer (according to whether the Corporation or the exempt employer is the compensating authority).

(5a) The representative of a person in proceedings before a review authority must neither charge nor seek to recover in respect of his or her representation in those proceedings, and any other associated work, an amount by way of costs in excess of the amount allowable under scales published from time to time by the Minister in the Gazette." 44. In the matter of Lemura, Deputy President said: "It seemed to me at the time that it was an extremely clear case. Not only has there been the decision of Singh v The Corporation, which is a decision of my own, unpalatable though it was, as I recall to Mr Saies, who has problems with accepting it, but as I have not been instructed - my views have not been reconstructed by the Full Court I do not feel at all non-confident in retaining them.

There is also the judgment of Gilchrist DP in Ham's case. I would have thought that the arguments were really very close to being frivolous and vexatious. I am quite tempted to award costs as to the respondent, as did Gilchrist DP in Van Eck's case, which judgment came out in the last fortnight. However, I do - I am tempted not to because I realise that in this area there is every possible nook and cranny - the law has to be determined. It is a matter of great importance to the workers."

However, the order that I propose to make is that each party pay their own costs in the matter. That is the order I will make." 45. In the matter of Sutcliffe, Deputy President Parsons said: "... given the now significant line of decisions of this tribunal in respect of matters of this nature, it is my view that it is not appropriate to make an award of costs for the worker, and accordingly I order that each party bear their own costs." 46. The appeals of Lemura and Sutcliffe on the orders as to costs raised an important question of law upon which there had not been a decision of this court. I think that it was erroneous in all the circumstances here to say that they were acting unreasonably in seeking to preserve their rights of appeal to this Court. I would uphold their appeals on costs.

OLSSON J

47. I agree with the reasoning of Matheson J and the conclusions to which he has come.

WILLIAMS J

48. I agree with the orders proposed by Matheson J for the reasons which he has given.