State of New South Wales v Taylor S46/2000

[2000] HCATrans 589

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 2000

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

BRENNAN TAYLOR

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 OCTOBER 2000, AT 10.18 AM

Copyright in the High Court of Australia

MR L. KING, SC:   May it please the Court, I appear with MR R.A. STANTON, for the appellant.  (instructed by P.W. Turk & Associates)

MR A.J. LESLIE, QC:   If the Court pleases, I appear with my learned friends, MR J.O. ANDERSON, and MS A.O. LESLIE, for the respondent.  (instructed by Steve Masselos & Co)

GLEESON CJ:   Yes, Mr King.

MR KING:   Your Honours, if I may so, despite the amount of paper and ink lavished on this case by some members of the Court of Appeal, it is a very short point of statutory construction.  The quickest way into it which I would like to take will be, to some extent, repetitive, having regard to what we said both in the application book and the appeal book, but it is just an historical background and it is this:  that in 1987 the New South Wales Parliament repealed the 1926 New South Wales Workers Compensation Act, which was a conventional form of State workers compensation statute.

KIRBY J:   Could I ask you, have you gone back – just for the interest, it is probably not relevant to the case, but there is the long history of the interrelationship of compensation and common law.  I think at one stage you did have to elect, did you not?  You did if you were a railway worker.  Do you know what happened, say, back to 1926?  Have you done that research?  It is quite a long history of which this is just the latest manifestation.

MR KING:   It is, your Honour.  This is a very different manifestation.

KIRBY J:   Yes.

MR KING:   Mr Leslie, in some of the cases referred to in his argument, gives the Court, if it feels the need to look at them, the way into it.  But, your Honour, to answer your question quickly, there was a time when, railway workers aside, it was necessary to elect between a claim for damages and a claim for compensation.

That went in the early 60’s, I think, perhaps even the 50’s – 53 – and it was always a different form of election from the one laid down by section 151A of the present legislation, which is different from other types of election known to the law where you have to elect between inconsistent rights or benefits, but you can leave your election till the end of the day.  The election under the Workers Compensation legislation has always been what might, in a slang fashion, be called an up-front election; you have to elect at the outset rather than leave it to the end.  Mr Leslie in his argument refers to Barclays Bank and to Sargent – a vendor and purchaser case which emphasises that in that context you can leave your election until the very death.

KIRBY J:   Anyway, you say we should just concentrate on the recent legislation and this legislation, because elections can have all sorts of purposes and meanings.

MR KING:   Precisely, your Honour.  The only election relevant is this one, which is quite different in character from the earlier ones and the language is quite different.  But, your Honour, the 1926 Workers Compensation Act, which was repealed in 1987, was, as I said, a conventional one; it gave workers rights to weekly payments, medical expenses, other benefits including a range of lump sums provided for in section 16.  Then there was a recognised right to sue for damages, a right independent of anything given by the Act, and the only effect of the Workers Compensation Act on that right was to provide that you could not keep both, you had to give the compensation back and towards the end, section 63 of the 1926 Act went so far as to provide that the payments of compensation were a defence.

Your Honours, in 1987, at a time when industries in New South Wales and in insurance companies were crying that the impost of awards of damages was too great and that some employers were going to take their operations interstate to get away, the 1926 Act was repealed and the 1987 Act enacted.  It abolished claims for damages by employees against employers altogether.  In 1989, following a change of government, the Workers Compensation (Benefits) Amendment Act, which is Act No 133 of 1989, was passed and it reintroduced the right to sues for damages but with considerable restrictions.

I need at this point to ask your Honours to go to the appellant’s written submissions to this Court so that I can correct a misstatement on this topic.  On page 5, paragraph 5.4, what that conveys is that lump sum entitlements pursuant to sections 66 and 67 of the 1987 Act were only introduced in 1989.  That is wrong.  They were introduced in 1987.  We correctly put the history in paragraph 8 of our appeal book at page 68.  The position is that, having taken with one hand the right to claim damages in 1987, as part reparation for that taking, Parliament gave with the other hand an enhanced entitlement to lump sum damages.

Section 66 provided for a Table of Maims which was more comprehensive than the old section 16.  Specifically it provided for lump sum benefits for disabilities in the back and neck which were not to be found in the old section 16 table.

KIRBY J:   Now, you said lump sum damages, but is this lump sum compensation?

MR KING:   Lump sum compensation, yes, I am sorry.  Lump sum damages comes in section  ‑ ‑ ‑

GLEESON CJ:   Where exactly is the error in paragraph 5.4 that we need to correct?

MR KING:   If your Honour were to go to the second sentence, second line, which begins “As a trade off” and strike out that whole sentence, I think that solves the problem, if the whole of the second sentence is deleted, your Honour.

McHUGH J:   The third sentence needs to go as well, does it not?  Well, unless you introduce ‑ ‑ ‑

MR KING:   No, that does not need to go.  The error is that it suggests that ‑ ‑ ‑

McHUGH J:   Yes, the trade-off, whereas they were there in 1987.

MR KING:   Yes.  I will say it again, your Honour, it is correctly stated in paragraph 8 of the application book, on page 68 of the application book.  Your Honour Justice Kirby is correct, I should have said lump sum compensation when speaking of section 66.  Then a further departure was the introduction of section 67 which provided for statutory damages for pain and suffering.  That was an entitlement unknown to the previous 1926 legislation.

GLEESON CJ:   You referred to page 68 of the application book.

MR KING:   I was referring to page ‑ ‑ ‑

GLEESON CJ:   A moment ago I thought you said page 68 of the application book.  We do not have an application book.

MR KING:   No, your Honour, I do not doubt that your Honour has not one, I am simply saying that, in relation to the totality of this case, the application book is the leave application book and we have it right there.

GLEESON CJ:   We do not have the leave application book.

MR KING:   I know that, your Honour.

GLEESON CJ:   Right.

MR KING:   But, your Honour, the problem is solved, with respect, if the second sentence of paragraph 5.4 goes out and the Court understands that it was the 1987 legislation, not the 1989 legislation, which brought in these lump sums that I am talking about.

GLEESON CJ:   And they were not increased in 1989?

MR KING:   No, they were increased in 1990.  They were not increased in 1989.  Now, your Honours, the 1989 amendments reintroduce the right to sue for damages but with considerable restrictions and we have set those out in our submissions.

KIRBY J:   There certainly were a lot of restrictions.  It seems hardly worth it.

MR KING:   Your Honour, it is not quite that bad because, after all, they are damages and they are still better than these lump sums and people are still pursuing them with great vigour.

KIRBY J:   Including the present respondent.

MR KING:   Yes, your Honour.  There is one that we left out which ought perhaps to be mentioned for the sake of completeness but it is of no real moment.  If you look at page 4 of our written submissions in paragraph 5.3 where we have set out in (a) to (j) all these restrictions, there is no mention there of section 151D, which imposed a three‑year time limitation for the commencement of proceedings rather than the old common law six‑year time limitation.

Your Honours, that is something that was rapidly overtaken by the 1990 amendments to the New South Wales Limitation Act to provide that, as from September 1990 there would be a three‑year limitation in respect of any personal injuries claim.  So this was tougher as regards time limits when it came in but the toughness was rapidly equalled across the board.

KIRBY J:   I have a dim recollection in a crevice of my mind somewhere that there was a shorter time limit for damages actions if it was a compensation case.  I am not sure if that is right.  It does not matter.

MR KING:   There was a very tough one under this 1926 Act that if you wanted to sue for damages you had to sue for damages within six months of getting your first payment of compensation, and then that was blown out to 12 months, but, again, your Honour, that is so much water under the bridge, it is of no moment for present purposes.  Your Honour’s recollection is correct, but ‑ ‑ ‑

KIRBY J:   It just all goes to show that when you get to this problem you have to just construe the particular legislation because it has varied so much over years.

MR KING:   The real difficulties at the outset for someone wanting to sue for damages after the 1989 amendments were the thresholds which I referred to in summary form in paragraphs 5.3(b) and (c) of our written submissions.  They put considerable hurdles in the path of the worker because if he saw himself as having good evidence of negligence, which was all that was necessary in the old days, you now have to say, “All right.  I have a cause of action on the facts of my accident, the way in which it happened, but can I show that my injury is serious enough to get me these reduced or capped damages for non-economic loss instead of the old general damages?  More particularly, can I show that it is serious enough to get me damages for economic loss?”.

Your Honours, when the right to sue for damages was reintroduced, the lump sums under section 66 and 67 were not taken away as a statutory entitlement under the Act, so there was an immediate problem of how to deal with those two things.  We say, at the top of page 5, paragraph 5.4, in a sentence which is right and does not need to be corrected, that section 151A, the machinery used to deal with that problem, was in itself a tough provision.

It takes little reflection to see the validity of that comment, your Honours, because a benign approach in line with the 1926 legislation could have been reintroduced, namely, that you can take the lump sums, sue for damages, but if you get your damages, you have to give all the compensation back, including the lump sums.  The legislature did not do that.  They did not take that rather straightforward but definitely benign way of dealing with the problem

McHUGH J:   But does this give any assistance?  I would have thought the strength of your case is simply this, that section 151A(5)(c) operates on the hypothesis of a belief that the applicant would suffer the further material deterioration that he has suffered and it requires the applicant to show that any belief that he would suffer that further material deterioration had no real basis.

MR KING:   Your Honour, that is something that I ‑ ‑ ‑

McHUGH J:   There may be an argument as to what material you can rely on to test the reasonable basis for this hypothetical belief but, if you take Dr Evans’ evidence for a start, one would have thought that his belief, the hypothetical belief to him, that he had a reasonable basis for it.

MR KING:   The last thing I want to do is labour the Court with submissions ‑ ‑ ‑

McHUGH J:   It is a simple case.  There is discussion about “would” or “might” or “will”.  For my part I cannot see the relevance of it at all, having regard to the text of the section.

MR KING:   Your Honour, ultimately I am going to come to the proposition that Mr Justice Handley twice got this right.  Implicit in what has just fallen from your Honour is Mr Justice Handley’s approach to it but, with all respect, I am putting this material to the Court because I think it does help me.  Perhaps your Honour would accept that.  What I am endeavouring to show is directed to what our submission puts as a misguided view taken by Mr Acting Justice Sheppard that you take a benign or a liberal view of this because it is beneficial legislation.  The short point is that there is nothing beneficial about this part of the ‑ ‑ ‑

KIRBY J:   It is a bit like the glass, whether it is half empty or half full, because on one footing it is not beneficial; it is part of a scheme to cut back and only partly to restore benefits of a common law nature.  The other way to look at it is that Parliament took the trouble of amending legislation which had abolished it and that therefore this was giving a benefit which had been abolished and therefore that it should be given a generous construction as part of workers compensation legislation which is designed to restore the benefit.  That is why I personally find your analysis quite helpful, because you can look at the glass and it depends on your point of view.  Is it half empty or is it half full?

HAYNE J:   You have to begin by looking at the glass and the relevant glass is the words.  Then we can decide whether it is half full or half empty.  The words surely is where this must begin.  Whether it ends there is a separate question.

MR KING:   With respect, your Honour, I am coming to the words as quickly as I can, but if I could answer Justice Kirby.  What your Honour just put is something that you would put on the leave application.  It was put more forcibly on the leave application, as I recall it, namely that because the new scheme of damages was niggardly by comparison with the old scheme of damages.  Whether it is niggardly is an open question because it is still much more generous than pure compensation, including the statutory lump sums, and people are still seeking it in large numbers.  But what your Honour put was because it was not quite so good, it is to be presumed that Parliament intended to make it easy for people to undo their election to get at it, as it were.

It will be necessary to come to this when we are looking at the words, as Justice Hayne has pointed out, but what that really means is that it is a principle of construction that for every cloud there is a silver lining, or for every snake there is a ladder.  It is not what Parliament has done here.  If they intended something like that, they would have taken the example of the old Act and simply said you can have both but you have to give the compensation back.  If they had wanted to frame an election provision but make revocation easy, they could have done it.  They could have taken away the “no reasonable cause to believe” requirement.  They could have said, “If you get worse, you can revoke your election”.  They could have put it as simply as that, but they did not.

KIRBY J:   But they did use two words, and we will ultimately get to the words that give a clue that there is a leg‑in.  One is the definite article “the” and the other is the reasonableness.  Therefore, there are two clues that it is a softer provision than might have been enacted.  I am not saying that the point Justice McHugh made is not a very powerful point in this case, given what Dr Evans actually said, but, if we are trying to conceptualise the theory of the section, there were some clues in it that it is a beneficial section.  After all, they could have said, “Once elected, you’re out unless you can get some equitable remedy or something like that”.

Well, your Honour, for the purposes of this case, and this takes up what Justice McHugh said a moment ago, it is no doubt fair to say that on any view of the meaning of section 151A, the evidence of Dr Evans, for example, means that this particular worker would not to have been given leave to revoke his election, but, from the point of view of conception, and what one would have thought this Court would be looking to in the first instance, is to get the meaning of the elections provisions, specifically the revocation part of them.  Once you know the meaning you know better how to look at the facts of a given case to see whether they fall within it.  It is the situation that the evidence of Dr Evans was a very big barrier for this man, come what may.  But, your Honours, that brings me to the wording of the section which is set out in many places in the judgments and at the foot of page 5 of our submissions.

GLEESON CJ:   Can I ask you a question about the wording of paragraph (c).  Is the belief referred to in paragraph (c) the belief of any particular person?

MR KING:   It is an objective belief of any person in possession of ‑ ‑ ‑

GLEESON CJ:   Any relevant information?

MR KING:   - - - any relevant information, yes.

GLEESON CJ:   So that if, for example, a doctor who had treated or examined the worker on behalf of the employer and who had written a confidential report to the employer concerning the worker, had believed on reasonable grounds that further deterioration would occur, that would satisfy the paragraph, would it not?

MR KING:   No, your Honour.  A medico-legal examination on behalf of the employer is not something which in the ordinary course would be communicated to the worker ‑ ‑ ‑

GLEESON CJ:   That is the point of my question.

McHUGH J:   Yes.

GLEESON CJ:   Who’s belief are we talking about?  What does it matter? I do not know what the answer to the question is, but the question is, what does it matter whether the worker had the information that is said to constitute reasonable course to believe something?

MR KING:   Your Honour, it has to be - - -

KIRBY J:   Why does it have to be?  It is in the objective.

GLEESON CJ:   Who’s belief is that talking about?

MR KING:   It is the worker who is making the election, but it is an objective test.  So it is a reasonable person in the position of the worker.

GLEESON CJ:   Why?

MR KING:   Well, your Honour, you have got to confine the body of information to what is realistic or reasonable.  It has to be what can be said to be, as it were, in the worker’s camp.  Mr Justice Handley at ‑ ‑ ‑

GLEESON CJ:   I understand your submission, but why?  What is the reason for it in the language of the section?

MR KING:   Because you are dealing with a worker who wishes to revoke an election.

McHUGH J:   Yes, but on one view its objective and impersonal and if the section or the paragraph operates on the hypothesis of a belief concerning further material deterioration, then the question is, is there any reasonable cause?  Has the worker shown that there is no reasonable cause for such a belief, that is, this object of impersonal belief?

GLEESON CJ:   Take the following example, Mr King, that I take from what I understand to be a not unusual situation.  Suppose that workers at a site, which is affected by something like asbestos, know that they are suffering a certain condition, but within the knowledge of some people connected with the employer, but not within the knowledge of the worker, there is information that constitutes reasonable cause to believe that that condition is a lot more serious than the worker thinks and will deteriorate.  I understand you to say that that is not relevant to a determination of the question raised by subsection (5), but I would like to understand why you say that.

MR KING:   Your Honour, could I answer it in a roundabout way by asking your Honours to look at paragraphs 4 and 5 of what Mr Justice Handley said in this case at page 106 of the appeal book.

GLEESON CJ:   I see the conclusion but what is the reason for the conclusion?

MR KING:   The reason I would suggest to the Court is this, that it is the worker who is the person making the election and the worker who is the person endeavouring to revoke it.  It is, with respect, got to be the case that you concentrate on knowledge which, in the ordinary course, could reasonably be expected to be available to him.

McHUGH J:   I understand the force of that, but why does that prevent you examining any information or opinion that could have been obtained by ‑ ‑ ‑

MR KING:   It does not, your Honour, but again ‑ ‑ ‑

McHUGH J:   I mean, supposing in the example the Chief Justice gave the worker had made his election without any medical assistance or opinion whatever, never gone to a doctor, but said, “I am going to take the money”.  How do you test (5)(c) in a case like that?

MR KING:   Your Honour, one has to assume a certain routine that what follows injury are these things:  pain symptoms, restrictions of movement, disability, et cetera.  That gives the person suffering an understanding, at least, to that extent of the way he feels about himself.  True it is that is subjective, at least to a degree.

McHUGH J:   I know, but he goes to an incompetent doctor who says, “You will be right; you will not get any worse”, and that is it.

KIRBY J:   Does the election have to be proved by the Compensation Court or anything like that?

MR KING:   No, your Honour.

KIRBY J:   Does it have to involve a lawyer?

MR KING:   No.

KIRBY J:   So this scenario could theoretically ‑ ‑ ‑

MR KING:   Another thing which ordinarily follows as a matter of routine is medical attention.  Now, exactly as we say, medical attention can be good, bad or indifferent, and doctors can be communicative or uncommunicative.

HAYNE J:   But the fact that these things follow as a matter of course may or may not bear upon the conclusion about reasonable cause.  Let me explain what I mean.  As I understand it, your contention amounts to a contention that the paragraph means there was no reasonable cause for the person to believe.  Am I right thus far?

MR KING:   No, your Honour, with respect.  There is no reasonable cause ‑ ‑ ‑

HAYNE J:   For anyone.

MR KING:   For a reasonable alter ego of the reasonable man in the position of the worker.  We use the phrase in our written submissions that it is the reasonable alter ego who you are looking at.  That is the objective content of it.

HAYNE J:   And the reasonable cause may or may not depend upon whether it was reasonable to make any inquiry or further inquiry than was, in fact, made.

MR KING:   With respect, no, your Honour.  Whether one inquires or not, does not alter what is available as a fund of information.

HAYNE J:   What is the fund of information to which one may properly look?  Is it limited to information that in fact existed, in fact existed in the position of someone or some people?  What is the fund of information to which regard can be had?

MR KING:   Your Honour, the fund of information will depend upon individual cases, but consistently with what I was saying a moment ago, it has to be a fund of information that, in the particular case ‑ ‑ ‑

KIRBY J:   You say it has to be, but this is a little bit like Scobie.  You remember Scobie.  It came as a big shock when the court said, “You do not look to the increase of risk that actually occurred; you look to the increase of risk at large in a journey case”, and that was achieved by looking at what the statute actually said.  Now, what is being asked of you here is when you actually look at the statute, it does not say there is no reasonable cause for the worker to believe; it is left in the objective and at large.  The question is, “Is that deliberate or does it have to be read to work in the context of this section to mean a reasonable cause in the worker or the alter ego of the worker?”.  My problem is, if you read in the alter ego, why do you not just read in the worker who is the person who is seeking the election set aside?

MR KING:   Your Honour, because reasonable cause connotes an objective inquiry.

GLEESON CJ:   Exactly, and it follows from that that postulating an alter ego goes to the matter of reasonableness.  But your submission would be no different, would it, if you simply read the paragraph as meaning there was no reasonable cause for the person to believe?  Postulating alter ego just directs your attention to the requirement of reasonableness which is objective.

MR KING:   Yes, your Honour.

GLEESON CJ:   But what you are saying and what, as I would understand, Justice Handley to be saying, is that, as a matter of construction, you read this paragraph as though it were referring to the belief of the person.

MR KING:   No, your Honour, what I put and what I understood Justice Handley to be saying, was that it is a reasonable person in the position of the worker.  You have to look, to some extent, at the position of the worker because he is the person making the election and he is the person endeavouring to revoke it.

KIRBY J:   So this is a contextual argument, given the context and purpose of the section, to read in the alter ego or the reasonable alter ego of the worker.  You would read in the reasonable alter ego so that you are not in the realm of the whim or intelligence or inclination of the particular individual.  All of this is done by the word “reasonable”.  That is importing that, and the context imports this alter ego.  So, you do not accept and you do not advance the argument that it means reasonable cause at large.

MR KING:   With respect, one has to give Parliament credit for some understanding of what happens in life, when they have been legislating in respect of injuries in a variety of ways for donkey’s years.  There will be a fund of information available to any injured worker ‑ ‑ ‑

HAYNE J:   Well, then, can we return to the question which you had begun to answer, which I put to you, but which you have not answered:  what is the fund of information to which regard may be had, that which exists in the knowledge of some person, any person, what is the fund of knowledge?

MR KING:   The fund of knowledge, as I was saying before I was interrupted in the middle of my answer, your Honour, is something that will vary with the individual case.  But, typically, it will be the worker’s own perceptions of his problem of a reasonable nature.  It will be the views held by his medical advisers ‑ ‑ ‑

GLEESON CJ:   Even though they are not communicated to the worker?

MR KING:   Yes, because they would be available.  They may not be communicated across the consulting table, but a worker can always get them if he goes to the trouble of asking directly enough himself, or through his legal advisers, if he has them.

KIRBY J:   He cannot get the employer’s medical reports.

MR KING:   Well, there is a notion of what you can get in individual cases that I have endeavoured to put.  You may in some cases have, as a worker, an indication of what the employer’s doctors think.

KIRBY J:   You may, but you do not have to.

MR KING:   No, it is not necessary, and it perhaps is not in the ordinary course that they will be available.  But the rules of court provide, for example, that an employer may, if it wishes, serve on the worker’s representatives its medical evidence.

HAYNE J:   But why is that not a complete red herring?  Is not the relevant question whether there is a respectable body of opinion that deterioration may occur?

McHUGH J:   Exactly.

HAYNE J:   The worker’s advisers may say, “My opinion is the chances of deterioration are slight”.  It may be a case where workers’ advisers say, “That is my opinion, there is a competing view which I discount.  There is a competing view which I regard as perfectly respectful”, and at some point a court somewhere has to make a judgment about whether that cause is reasonable cause.  But to identify it solely by reference to “can I get the reports?” seems to me, at first blush at least, to be a red herring.

McHUGH J:   Why is not the way you test it – the paragraph operates on the hypothesis of a belief about the further material deterioration.  Why is not the proper test a purely objective test?  You say, having regard to what was known concerning his condition at the time of the settlement, objectively, was there a reasonable cause to believe that further deterioration would occur?  So it is something that is examined by the Court at the time of the application for leave.  It does not depend upon what particular information the worker had.  It is an objective test.

MR KING:   Your Honour, it goes beyond that in my submission.  That is a very literal way of looking at this provision.  It overlooks the fact that there is a worker in there being spoken of – I am repeating myself – who is making an election and seeking to undo it.  Now, I understand what your Honour says, “Why don’t you just look at what was objectively known to a person in his position?”, but - - -

McHUGH J:   No, what was objectively known about him and then you ask - you test a hypothetical belief concerning the further material deterioration which he has suffered and you ask yourself objectively was there reasonable cause for a belief that that would occur and it does not matter when.  He may never have been examined by any doctor or there may have been no expression of opinion by any doctor known to him but you test it in this hypothetical way, that the paragraph is objective and impersonal.

CALLINAN J:   Mr King, in relation to that I am not familiar with the provisions of the New South Wales extension of limitations periods but I know the Queensland Act directs attention to the actual person who seeks the extension.  It is put quite expressly in subjective terms, a person in the position that the applicant was in.  Is there a similar sort of provision in New South Wales?

MR KING:   In the New South Wales Limitation Act?  Yes, your Honour.

CALLINAN J:   One can draw an immediate contrast between the expressions which direct attention to the subjective state of mind of an applicant and to the impersonal language of this section, which would really emphasise, I think, what Justices McHugh and Hayne are saying to you.

MR KING:   Yes, your Honour.  I follow that and I follow what Justice McHugh is saying, but the position I am put in ‑ ‑ ‑

CALLINAN J:   I think that is far too onerous, too oppressive.

MR KING:   No, no.  In a sense I would simply love to embrace what Justice McHugh says but, with all respects, what Justice Handley says in paragraphs 4 and 5 of his reasons in this case at 106 of the appeal book does take up the reality that it is the individual worker who has to be looked at to some extent because it is his election and his desire to revoke.  If one has regard to the fact that that is a statute which ordinarily will operate in a context in which the workers at least had some medical advice, medical treatment, true it is the advice may be very taciturn ‑ ‑ ‑

CALLINAN J:   He would not get permanent loss compensation unless he had had medical advice, would he, in fact, as a practical matter?

MR KING:   That is right, your Honour.  You need to have some sort of expression of opinion before you are in that position.  This brings me back to what Justice Hayne was putting to me.  I, with respect, your Honour, was not saying that you focus solely on what the employer might have and what might be disclosed by the employer and there is no red herring in intruding into what I was putting to your Honour, the mention of what the employer might have.

McHUGH J:   Are you talking about the employer or the employee?

MR KING:   The employer might have.

McHUGH J:   The employer.

MR KING:   For this reason, that what the employer has could, in an individual case, become available to the employee.  You only have to look at what ordinarily happens, of which this case is a classic example.

McHUGH J:   It may be, but let us test what Justice Handley says.  Supposing the worker had a positive belief that he would not suffer further deterioration.  He had an incompetent doctor who had said the same thing to him.  Now, is that the end of the matter?  Must the worker succeed in those circumstances?  The moment you concede, no, then it does not seem to me that what Justice Handley says can be correct.  Do you say in that situation that the worker must succeed?  If he has a positive belief he is all right and so is his doctor.  Is that the end of the matter?

MR KING:   No, your Honour.

McHUGH J:   Then, once you assert that, what is the basis for saying that you can look at other material?

MR KING:   That is what I was going to say.  I do not understand your Honour to be saying, but correct me if I am wrong, if all there is available to the worker is his own opinion that he is all right and the opinion of a doctor to the same effect which is wrong - the doctor is incompetent or he got it wrong on that occasion – it takes out the reasonableness because you have to say it is quite reasonable for a worker who has something seriously wrong with him, and it is necessary that it be something seriously wrong, and it is reasonable for the doctor to comfort him in that view.  That is not a reasonable state of affairs.

McHUGH J:   But you can only reject the relevance or use of those two opinions – that is of the worker and his doctor – by taking into account other medical opinion which might have said it was as plain as a pikestaff that he was going to suffer further deterioration.  On your argument on this aspect, how do you take that other material into account?

MR KING:   With respect, I disagree with the proposition your Honour has just put.  I disagree that you could only say it is unreasonable if there is other medical opinion to the effect that there is something seriously wrong with him.  The unreasonableness lies in the worker’s own perception of himself or herself.  If he is seriously injured and he thinks he is all right, that is an objectively unreasonable state of affairs.

McHUGH J:   We are not talking about whether he is all right but whether he will suffer further material deterioration.  If he thinks he will not and his doctor says he will not, what is your answer to this question?  Is the worker then entitled to get leave on that basis?

MR KING:   No, it is a question of whether his view and his doctor’s view are reasonable.  This also touches upon something in the judgments, that there is a degree of hindsight involved in this exercise because, when you are endeavouring to undo an election, to revoke it, you start with the proposition that deterioration has occurred.  You start with that.  It is a known or a given.  You then go to the position in which the worker was and you say, “What would a reasonable person in his position have ‑ ‑ ‑”

McHUGH J:   You are introducing these arguments now about what a reasonable worker in his position would do.  This is a departure from the text of the section.  You are reading words in.  What are the words that you read in and where do you read them into the section?  The section is either objective and impersonal or it concentrates on the reasonableness of the worker’s belief or a person in the position of the worker.

KIRBY J:   My understanding is, right or wrong, that you read in “reasonable cause”, ie, in the sense of what a reasonable person in the position of the worker would believe, as a sensible interpretation drawn from the context (a) that this is an election provision; and (b) that the statute uses the word “reasonable” and is therefore getting away from the subjective beliefs of the particular worker.  It is either right or wrong, but that is the way you seek to have the section construed and you do not accept that if there is some obscure report or some body of medical opinion in the possession of the employer, that the worker has no knowledge of and no reasonable means of knowledge of, that that is going to redound against the worker in the working of this particular election provision.

MR KING:   Precisely, your Honour.

GLEESON CJ:   Is it the case that the view that you have just accepted is in substance the view that was taken by everybody who has looked at this problem in New South Wales, that is to say by the Master, by Mr Justice Murray and by all three members of the Court of Appeal?

MR KING:   I believe that is a fair statement of the position, your Honour.

KIRBY J:   And in the earlier cases?

MR KING:   There was only one earlier case of which I am aware, which is the matter of Francis v Dunlop which is referred to in the judgment ‑ ‑ ‑

KIRBY J:   That is the one where Justice Handley also dissented.

MR KING:   Yes.

McHUGH J:   But, once you embrace this view of the section, does it not involve you in an inconsistency, namely that you turn the section around and put it in a positive form, the very thing that you criticise the majority judges for doing?

MR KING:   With respect, your Honour, no.  It would seem a thoroughly unreasonable legislative intent to say that you can decide against a worker by reference to knowledge that he could not ever be expected to have had.

McHUGH J:   Why?  It does not seem to me to be unreasonable.  Why cannot the legislature take the view you have to objectively examine his symptoms as at the time of the election and ask yourself, objectively and impersonally, “Was there any reasonable ground for the belief the deterioration would occur?” and the onus is on him to show there was no reasonable basis for such a belief having regard to those symptoms?  It seems to me a perfectly acceptable course that the legislature might want to take.

MR KING:   Well, your Honour, I am ad idem with you about where the onus lies and no doubt my client would be delighted to see the provision read in that way, but ‑ ‑ ‑

McHUGH J:   I mean, as Justice Callinan pointed out to you, the failure of the legislature to put in words such as “at the time of the election he had no reasonable cause to belief” is very telling.

KIRBY J:   I suppose you would draw our attention to what Lord Hoffmann said about not construing words in isolation in Reg v Brown, that you have to look at the words in their context for the purpose for which they are provided and not simply concentrate on that phrase.  You have to look at what the Parliament is doing here.  It is restoring a right to damages, it is taking account of the fact that there will be cases of elections and it providing for a reasonable regime, objective, but reasonable, to deal with the problem of claims to overcome an election.

HAYNE J:   The question is, “What is objective and what is reasonable?”.

MR KING:   Your Honour, the section postulates a person.  “Person” is described in subsection (2) as:

A person to whom compensation is payable –

and that person pervades the balance of the provision.

HAYNE J:   But that is the point.

McHUGH J:   But that is the point.  The section operates on three objective facts:  (a) an election; (b) deterioration in the person’s condition; and (c) no reasonable cause to believe.  In Brown’s Case, to which Justice Kirby referred, says that the sentence is the building block of the English language, not individual words.

GLEESON CJ:   Mr King, does it matter whether or not anybody, in fact, entertained such a belief or is that irrelevant?

MR KING:   That is irrelevant, with respect, your Honour.

GLEESON CJ:   So you do not have to show or disprove that anybody actually had a belief that the further deterioration would occur?

MR KING:   If it is established that the worker had that belief ‑ ‑ ‑

GLEESON CJ:   It may be of evidentiary significance, but the question raised by the provision is not a question that turns upon whether anybody entertained a belief.

MR KING:   Precisely, your Honour; it would be of real evidentiary significance if the worker, the rare worker who made that concession one would have to say, but ‑ ‑ ‑

KIRBY J:   But not of significance if he said, “I never believed it would deteriorate” or would that be of significance?  From the point of view of evidence it ‑ ‑ ‑

MR KING:   That would be of much less significance.  That is precisely what you would expect him to say.

KIRBY J:   Yes.

GLEESON CJ:   It might be relevant to the exercise of the discretion that is contained in the concluding words of subsection (5), but the issue raised by paragraph (c) is not an issue about anybody’s actual belief.

MR KING:   No, your Honour.

GLEESON CJ:   But, at least in your submission and on the approach that has been taken by all the people who considered this case in the Supreme Court of New South Wales, the issue is about the reasonableness of a cause of belief in a person in the position of the worker.

MR KING:   Yes, your Honour.

GLEESON CJ:   What does “belief” mean in a context such as this?

MR KING:   That is a topic which does require a quick look at the reasons, but “belief”, in my submission, simply means, if you think that there is a real chance that deterioration, having regard to what is in the nature of medical problems, might occur, then that is a sufficient belief to satisfy the requirement.

GLEESON CJ:   Do you read the word “would” as though it means “could”?

MR KING:   Yes, your Honour.

GLEESON CJ:   What would you say to this proposition:  “belief” is an inclination of the mind towards assenting to rather than rejecting a proposition and the grounds which can reasonable induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture?  Would you accept or reject that?

MR KING:   I am doing the best I can to grapple with it as I stand here.  I would be inclined to say that that is a reasonable outline ‑ ‑ ‑

GLEESON CJ:   Well, it is what this Court said about the expression “reasonable grounds for belief”, in a different context.  I am referring to George v Rocket 170 CLR 116.

MR KING:   Page 116?

GLEESON CJ:   Yes.

MR KING:   Yes, your Honour, I was going to take the Court to that and I ought to have appreciated exactly what you were reading to me.  In this case in the Court of Appeal, Sir Justice Giles made a brief reference to George v Rocket, to a different passage, I think, page 112, but the passage at page 116 which your Honour has just read is more apposite, given that it is in a different investigative search warrant context – is more apposite to this case than the passage that Mr Justice Giles referred to. But, your Honour, we endeavour to say in our written argument that the subject matter of this election provision and, in particular, the subsection dealing with revocation, namely, human medical conditions, is a genuine guide or pointer to the content of the word “belief” for present purposes.

It is a humdrum proposition to say that medical prognoses are seldom predictable.  Justice Handley focused strongly on that.  Problems of a medical kind fluctuate.  That is a commonplace.  Medical conditions vary from time to time and they are notoriously difficult of prediction, as Justice Handley said.  Now, that, coupled with the very wording of subsection (5)(b):

after the election is made, the injury causes a further material deterioration in the person’s medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation –

Now, that immediately throws you into a spectrum or a range because you are talking about additional percentages which could be from one or a few per cent more to many percentage points more.  It puts you into a range of possible, or an area of possible deterioration, and it makes it impossible to give belief, for example, to the extreme view that was attributed to it in this context by Mr Justice Priestley in Francis v Dunlop.

GLEESON CJ:   Mr King, this does not have any bearing on the outcome of the argument here, but just to put the present problem into context, could you show us where in the Table of Maims the deterioration that happened in this case would have put the worker as compared with the place in the Table of Maims that the worker’s condition at the time of the lump sum payment actually was believed to put him.

MR KING:   Your Honour, I can begin to answer that by saying that the lump sum compensation that he took when he made his election involved an amount of money by reference to 18 per cent permanent impairment of the back and 4 per cent permanent impairment of the right leg.

GLEESON CJ:   Eighteen per cent permanent impairment of the back?

MR KING:   Four per cent permanent impairment of the right leg, an amount of money just under $18,000 – Mr Stanton’s handwriting - $17,772.

GLEESON CJ:   Yes.

MR KING:   Now, the deterioration which goes to show ‑ ‑ ‑

KIRBY J:   It is “the” deterioration, is it not?  So, it is the actual deterioration that has occurred in the particular case.

MR KING:   Well, it goes to show the range of possibilities is to be found in various expressions of opinion in medical reports.  For example, if one goes to page 52 of the book, you will see that Dr Evans, speaking as at January 1997, said:

The permanent impairment of Mr. Taylor’s back is 40%.  …..the left leg…..above the knee is 10%.

KIRBY J:   Left leg or right leg.  I am sorry, I thought we were told the ‑ ‑ ‑

MR KING:   “Left leg at or above the knee”.

KIRBY J:   But I thought you said that it was four per cent of the right leg.

MR KING:   Yes, your Honour, I did say that.

KIRBY J:   So this is a different leg?

MR KING:   Yes.

KIRBY J:   Has there been any – well, there has been a ‑ ‑ ‑

MR KING:   I am being corrected.  I did say the right leg because I believed – we are in error yet again, your Honour, it should have been the left leg.

GLEESON CJ:   So he only has one bad leg and it is on the left side.

MR KING:   Yes, your Honour, and your Honours see throughout the medical reports the increased assessments, for example, Dr Sengupta at pages 45 and 46 of the book, says “permanent impairment of the back…..30%”, gives assessments for both right and the left leg.  These are indications, with respect, of the very nature of medical evidence, the vagaries of these percentages which are a reflection of the nature of ‑ ‑ ‑

GLEESON CJ:   Could you just point us to where it is in the legislation that we find that something turns on the difference between 18 per cent and 40 per cent?

MR KING:   Yes, your Honour.  If your Honours go to the table of names which follows section 73 of the Act, your Honours will see, it is about the third last entry, “Permanent impairment of back, neck, pelvis”, and a range set out there “Permanent impairment of the back” 0 to 60 per cent.  Within that range, a figure of actual impairment in the back of 40 per cent, 30 per cent as assessed after the election, compared with what was available before, increases the entitlement.

GLEESON CJ:   Can you show us just why – I am not doubting this, but it would be nice to be able to mention it in the judgment.

MR KING:   Could your Honour pardon me while I get some instruction in this from Mr Stanton?

GLEESON CJ:   It is paragraph (a) under the heading “Interpretation”?

MR KING:   That has something to do with it, your Honour.  I hope this will let the Court know what it needs to know.  The reference to 0 to 60 per cent is a reference to the percentage of the total amount provided under section 66.  Currently that figure is $100,000, I am told.  So, if you have a most extreme case of back impairment, say 100 per cent impairment of the back, you get 60 per cent of $100,000.  If you have 18 per cent, as was the case when this worker made his assessment ‑ ‑ ‑

GLEESON CJ:   You get 18 per cent of $60,000.

MR KING:   Well, 18 per cent of whatever it was back in 1992.  It goes up to 40 per cent or 30 per cent; your Honours can see the increase.

KIRBY J:   Would you explain to me again:  your client wants to take a damages action or, rather, the respondent wants to take a damages action, what is the relevance of the table of names except that he took benefits under it?  He is not, is he, under the table of names, seeking damages at common law, but which will be the subject of all those limitations?  Do those limitations limit him to the table of names?

MR KING:   The table of names has two purposes, your Honour.  For present purposes, the table of names is relevant because if you need to revoke your election, what you need to show is that, within sub‑subsection (b), that after you make your election:

the injury causes a further material deterioration in the person’s medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation.

You need to go to the evidence as to the deterioration and go to the table of names, put them together and see whether there would be an entitlement before you qualify within sub‑subsection (b).

KIRBY J:   Is he entitled to go back and get increased compensation under the Act?

MR KING:   Yes.  He gave that evidence.  He gave the evidence that he understood that, at the time he made his election, he understood that if his worsening condition brought with it the right to further lump sum compensation he could pick that up, and that he took some comfort in that fact.  That was clearly established in his cross-examination.

GLEESON CJ:   Where does he get that right?  Again, I am not doubting it, but could you just mention the provision that gives him the right.

MR KING:   Your Honour, I am told by my learned junior, who has the misfortune to be in the Compensation Court regularly enough to be full bottle on it, that it is a case law engraftment onto section 66 and 67.  The case called Lourdes House Hospital v Wheeler, that if there is a change in circumstances with the passage of time bringing with it an increased entitlement, that is treated as a further injury and further loss, and you can pick it up.  There is a reconsideration of the award.

GLEESON CJ:   In due course before you finish – no need to deal with this now; you can deal with it in reply if you like – could you give us a reference to that case of Lourdes Hospital v Wheeler.

MR KING: Your Honours, it is (1996) 13 NSWCCR 495. It is a Court of Appeal decision. Mr Leslie is being terribly helpful, your Honours. He says that the relevant passages are at pages 504F to 505D and 507B. To complete my answer to Justice Kirby about the significance of the Table of Maims in relation to common law damages, for present purposes, as I have said, in relation to the election provisions, you have to show that the deterioration brings with it a further entitlement or would have given you a further entitlement had it been there at the time you elected. Of greater significance once you have actually got through the door of the common law court is that the Table of Maims provides an alternative in the measure of an alternative way of getting over the thresholds of sections 151G and 151H which are of great importance.

KIRBY J:   What is the purpose of paragraph (b) as a threshold?  I just do not quite understand why that is put in as a precondition.  One would have thought that the practicalities would be that unless you have some deterioration which by definition would allow you some further entitlement under the Table of Maims, you would not be bothering to go along and seek to get out of your election.

MR KING:   Your Honour, I can give no real answer to that.  We have looked at the second reading speeches and the explanatory notes.  The only relevant passage there we have set out in paragraph 5.2 of our submission.  It does not shed any light on your Honour’s inquiry but ‑ ‑ ‑

HAYNE J:   There has to be an end of litigation some time.  This is carving out an exception to the otherwise general proposition, there has to be an end.

MR KING:   Your Honour, one would have thought, taking up what your Honour has just said but endeavouring to answer Justice Kirby, that it is there as a more stringent requirement than allowing someone to come along and offer some evidence that, “I’ve got worse”.

HAYNE J:   Or just having two bites at the cherry.

MR KING:   You need to check, as it were.  You need some corroboration of that proposition from the mouth of a medical scientist, a doctor who can say, “He says he’s got worse and measurably I think there’s an extra few percentage points there”.

KIRBY J:   My only problem is, given that (c) hypothesises a deterioration, why (b) is necessary, given that the deterioration sounds in money, but it possibly does not matter.

MR KING:   Your Honour, there is no getting away from the fact that your Honour’s inquiry has some substance because additional permanent loss compensation could be awarded for 1 or 2 per cent more.  One would not have thought that was a serious deterioration, but it does seem to imply that the legislature is saying, “You don’t even get into a situation in which we’ll have a judge consider giving you leave to revoke unless the deterioration is fairly serious”.

KIRBY J:   It does not say that, it just says “deterioration”.

MR KING:   No, it just says “additional permanent loss compensation”.  Your Honour, it certainly does not matter for present purposes but, if we look at section 151H, it supplies the answer to the significance of the Table of Maims to damages claims because it says in subsection (1):

No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies –

Then it defines “a serious injury” in two ways.  In subsection (2)(a), it is:

an injury for which the compensation otherwise payable under section 66 –

which is the Table of Maims –

for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount –

That was reduced in 1992 to 25 per cent in subsection (2A).  So the Table of Maims is always used for the purposes of section 151H when you are actually in a common law court asking for damages for economic loss as another threshold to see whether you can get them as an alternative to seriousness measured by reference to damages for non‑economic loss.

A worker can say, I am entitled to economic loss because, in respect to an injury prior to February 1991, my disabilities would entitle me to 33 per cent of the maximum amount from time to time under section 66.  For an injury after February 1992, to 25 per cent, or, if I do not meet that test, my injury is serious enough to get me damages for non-economic loss pursuant to the preceding section, section 151G, in the necessary amount.  But, your Honour, that significance is, with respect, not relevant to this exercise.

GLEESON CJ:   Is a possible explanation of the reason for paragraph (b) of subsection (5) that, in order to be permitted to make the revocation and thereby to be given the opportunity to bring a common law action, it is not good enough to establish that you want to litigate about whether there has been further deterioration; you have actually got to establish that there has been further deterioration?  It is not enough that there is an issue about it; you have got to prove it before you can get the right to commence your action.

MR KING:   Well, with respect, that must be so, and it is something which goes to a proposition I put much earlier, namely that this is an election quite different from the sort of general law election talked about, for example, in Sargent, which is referred to by Mr Leslie.  It is an election that you have to make before you start pursuing your common law right.  You have to elect to do it or not to do it and to reinforce the impression that Mr Justice Hayne mentioned, of finality, section 151A(5)(b) is showing that there has to be something to make it worthwhile; there has to be some real subject matter which has cropped up.

McHUGH J:   But does not the existence of paragraph (b) support what I was putting to you about paragraph (c)?  Paragraph (b) requires a hypothetical inquiry concerning whether the worker would have been entitled “to additional permanent loss compensation” if the material deterioration had existed at that time.  So you have to examine that question and then you ask yourself, in respect of paragraph (c), whether “at the time of the election” objectively:

there was no reasonable cause to believe that the further deterioration would occur;

It has got nothing to do with what the worker knows or what his representatives know; it is a purely objective question.

MR KING:   Well, your Honour, I am not sure that I have followed the thrust of that, but if it is an answer, allow me to put this to you, that (b) puts as a condition of revocation that something in fact happens.  It is what I was driving at earlier when I said that ‑ ‑ ‑

McHUGH J:   Well, it is part of it.  You have got to show that the injury has caused the material deterioration, but (b) requires you to inquire whether that actual deterioration, if:

it existed at the time of the election, would have entitled the person to additional permanent loss compensation –

So you have to make a judgment by comparing the two situations, what he did have at that time of election and whether what he got later would have entitled him to additional compensation.  And then you go on in (c) to say whether there was any “reasonable cause to believe” at the time of the election:

that the further deterioration would occur.

So (b) has a hypothetical in it.  So has (c), both indicating that you are not much concerned with knowledge of the worker or his advisers but on a more objective and impersonal question and inquiry.

MR KING:   Your Honour, I hope we understand each other.  I certainly adopt what your Honour is putting and it appears to lead to the success of the appeal.

GLEESON CJ:   Not quite.

McHUGH J:   Not necessarily.

GLEESON CJ:   The generosity of your attitude is not self‑evident, Mr King, because the wider and more impersonal you pose this aspect of the question, perhaps the more stringent is the requirement about belief.

McHUGH J:   Exactly.

MR KING:   May I finish what I was saying to Justice McHugh, that nonetheless, your Honour, notwithstanding the attraction to me of what you have been putting all morning, I do not know, with respect, that you can get much assistance from (b) as to the completely impersonal character of (c) because, with respect, what you get out of (b) are two facts, things which are established facts at the time we come to consider whether allowing a worker to revoke.

McHUGH J:   I am not sure that you can describe one element as a fact.  Whether or not there has been a further material deterioration caused by the injury is certainly a question of fact but then you have to ask yourself this hypothetical question.  If that deterioration had existed at the time of the election would the person be entitled to additional permanent loss compensation?  That is a hypothetical inquiry.

MR KING:   No, with respect, your Honour.  That invests it with far too much mystery.  In my submission, it is a relatively simple qualifying two‑step state of affairs laid down in (b).  You start with the situation as it was at the time the worker made his or her election.  That will be primarily taken to be the situation reflected by the amount of money, the percentage to which the amount of money was tied that he got because the election is made by banking the cheque.  That is the way it worked at that time.

Now, that is the first thing.  That will be an objective fact.  In saying that, your Honour, I recognise that there could be an argument about what his real problem was at the time he got his money and banked his cheque.  That is the stuff of a lot of litigation in the Compensation Court.

There will be, for the very reason that there has been an election which is endeavouring to undo the banking of a cheque which enables a percentage disability to be calculated.  The next thing is that at the time he or she is endeavouring to undo his election there will be first an allegation by the worker of a deterioration which, had it existed at the time of the election, would have brought with it an entitlement to additional permanent loss compensation.  With all respect, your Honour, that is a pretty simple concept.  What it means is ‑ ‑ ‑

McHUGH J:   It may be but it is still hypothetical.

MR KING:   No.  Well, your Honour, I am endeavouring to say that it is not hypothetical.  It could be in contest but it would not be ‑ ‑ ‑

GLEESON CJ:   It was in contest in this case, was it not?

MR KING:   Yes, your Honour.

GLEESON CJ:   There was an issue about paragraph (b).

MR KING:   That is right.  In an application for leave to revoke the worker has to show that there is affecting him at the time he seeks the revocation a further material deterioration, which had it existed at the time would have brought with it further permanent loss compensation.  What that means, if you put it into cold hard figures – take Mr Taylor, 18 per cent of the back, 4 per cent of whichever leg it was.  That was the situation in 1992.  He seeks leave to revoke.  He says, “I am now affected by 30 or 40 per cent disability in the back.  That is an extra measure about 18 per cent if that is accepted and had it been the case at the time I would have got more permanent loss compensation.”

McHUGH J:   Well, of course.  But what I am saying is it is not something that has existed, it is not a fact.  It is the answer to a hypothetical question – “I would have got 12 per cent more”.

MR KING:   Yes, but I am disagreeing with your Honour.

McHUGH J:   I beg your pardon?

MR KING:   I am disagreeing with your ‑ ‑ ‑

McHUGH J:   You disagree?

MR KING:   Yes, because at the time he seeks to revoke, he is making an allegation of fact, existing fact, nothing hypothetical about it.  It is only a question of whether it is proved or rejected.  He makes an allegation at the time he seeks to revoke that at some time after he elected, he has got worse to a measurable degree.  Now, the court accepts that.  That means it is a fact.  If the court reject it, it is not a fact.

McHUGH J:   Exactly, but whether his injury caused further material deterioration is a fact.  But what I was putting to you, it is a hypothetical question to say whether it would have entitled him to additional permanent loss compensation had it existed at the time of the election.  You are asking a question about something that did not exist at that time – it is hypothetical.

MR KING:   Your Honour, I am greatly troubled by the fact that I am not on the same wavelength ‑ ‑ ‑

McHUGH J:   Well, do not spend any more time on it because I will not be changing my mind about it.

MR KING:   But at the time the worker seeks leave to revoke, before he gets past B to C, he has to show the elements of B.  That means he has to prove ‑ ‑ ‑

McHUGH J:   Yes, of course he has to prove B.  All I am putting to you is that although there are certain questions of fact involved in it, ultimately it is the answer to a hypothetical question, namely, if he had had that in the past - he did not have it in the past but if he had had it, would he have received additional permanent loss compensation?  To my mind, that is as plain as a pikestaff that you are answering a hypothetical question ‑ ‑ ‑

MR KING:   Well, I am sorry, your Honour, it is obviously my obtuseness but I would have thought, and I will finish on this, not waste any more time, but the worker makes an allegation in support of an application to revoke of two facts.  One, that he made an election based on some percentage disabilities, that will be the case.  He makes a further allegation of fact that since that time he has become worse, to a measurable extent, and if you tack that on back in the ‑ ‑ ‑

McHUGH J:   That is a question of fact.

MR KING:   Yes.  I do not see it as a hypothesis, your Honour, I see it as an allegation.

McHUGH J:   The question is whether, if it had existed at the time, the section itself assumes it did not exist.  It asks you to assume as a hypothesis that it did exist and then it asks you, “Would he have received additional permanent loss compensation”, et cetera.  That seems to me ‑ ‑ ‑

MR KING:   Well, your Honour, I think I am with you now.  The section definitely hypothesises.  It asks a question as to what the situation would have been had it existed at the time ‑ ‑ ‑

McHUGH J:   Yes, exactly ‑ ‑ ‑

MR KING:   But there is still a matter of fact to be proved later on.

McHUGH J:   No, there are elements of fact to get to the answer of that hypothetical question.

MR KING:   I am sorry, your Honour, I feel I have wasted five or 10 minutes but I think, with respect, I am with you now.  Your Honour, I think some minutes ago we were talking about belief.  It is a quick run through of the ‑ ‑ ‑

GLEESON CJ:   Well, George v Rocket is authority for the proposition that belief does not mean conviction.  You do not have to be convinced of anything to believe it.

MR KING:   That is right.

GLEESON CJ:   If you have an inclination of mind towards assenting to, rather than rejecting, the proposition that Santa Claus exists, you believe in Santa Claus.

MR KING:   Precisely, your Honour.  In the language of (c) here, “no reasonable cause to believe”, which is focused on by Mr Justice Handley correctly in his judgments in Francis v Dunlop and in this case ‑ ‑ ‑

KIRBY J:   But it has to be something affirmative, does it not?  It is not a suspicion.  It is not even an expectation.  It has to be an affirmative belief.  I am not saying that Dr Evans does not come to that measure, but belief is something positive.  If we use it in a religious sense, we talk of believers and people who have the belief.  It does tend to be an affirmative – it may not be quite conviction but it is something better than just expectation or suspicion.

GLEESON CJ:   And there can be ranges of belief, can there not?

MR KING:   There can.

GLEESON CJ:   If you took a group of believers and put them in a room, you would find various quite different inclinations of mind amongst them.

KIRBY J:   It has happened over the centuries, fortunately.

MR KING:   The content that informs belief can be very variable as well.  Taking up matters of religious conviction, if your Honours go to what Mr Justice Handley said in Francis v Dunlop, Butterworths ‑ ‑ ‑

KIRBY J:   His Honour slipped in an allusion to religion, did he?

MR KING:   No, your Honour, he endeavoured to counter Justice Priestley’s reference in that regard.

CALLINAN J:   Justice Priestley’s heresy.

KIRBY J:   What is the citation?

MR KING:   It is Butterworths Unreported Judgments.

GLEESON CJ:   It is attached to the back of your written submissions?

MR KING:   It is at the back of our written submissions, your Honour.  At the foot of page 5 over, really, to the top of page 6, his Honour deals with what has just fallen from Justice Kirby about some basis, “although there was less than a 50.1% chance”, et cetera, and then the second‑last paragraph of his Honour’s reasons:

I have not been persuaded by the analysis of the meanings of belief undertaken by Priestley JA.

With respect, his Honour is correct in that paragraph.  It is fair to say that Justice Priestley is much further out on a limb than anybody else in relation to the meaning of “belief”.

I think I can conclude by taking your Honours to Mr Justice Giles in this case at page 123 of the appeal book, paragraph 43.  A significant matter is that his Honour exposes a weakness in his own thinking at paragraph 44 at page 124 where he says:

An analysis such as the foregoing may risk departure from the words of para (c) –

With all respect to his Honour, he identifies his own shortcoming.  Unlike Mr Justice Handley, he insists on more than 50.1 per cent likelihood.  He reads instead of “reasonable cause”, “probable cause” or “belief in probability”.  What Justice Handley is saying in the context that we are dealing with, with medical conditions, is, with all respect, clearly the preferable interpretation.  If your Honours would go back to his reasons starting at paragraph 4 on page 106 – I have taken the Court to that earlier – down the bottom of line 50 in paragraph 6 he says he remains of the opinion.  He goes on in paragraphs 7 to 10 to indicate what is clearly, in my submission, the practical workable construction of the provision, given what it is talking about.

The last thing I want to say is that on any view of the evidence in this case, what, for example, Dr Evans had to say was fatal to the respondent on any construction of the section, but certainly ‑ ‑ ‑

McHUGH J:   But why do you get into this argument about the possibilities or probabilities?  If you take the view that the section is objective and impersonal, is not the question really this, “If a hypothetical person believed that the further deterioration would occur, did that person have a reasonable basis or cause for that belief?”.

MR KING:   Your Honour, I understand.  Your Honour has been putting this to me often.  I thought I indicated earlier that I am delighted to adopt what you say.  I recognise that I came here to champion Mr Justice Handley, and that is the primary position I have put.  But, nonetheless, I understand what has fallen from your Honour and I see it as something that I can embrace.

One further thing that I wanted to say before I – it goes to something Justice Hayne was putting to me earlier when he was saying that what is available to the employer is a red herring.  Your Honour, may I say this before I sit down:  this case is an absolutely typical example of what happens day to day.  Mr Taylor made his election, under legal advice, in a conference room in the Compensation Court of New South Wales with a solicitor and a barrister there who had the medical evidence they had gathered and the medical evidence the insurer’s solicitors had served upon them.  That constituted part of the body of knowledge.  They had available to them the machinery of subpoenas and so forth which, had they cared to use it, might have thrown up more material.

McHUGH J:   Unless things have changed, the probability is that this worker would have only got a few minutes of discussion concerning his rights and risks.  Not only is that my personal observation, but when I said as Chairman of the Ethics Committee in the New South Wales Bar, we had more than one case which indicated that people were advised to settle cases in this area in very short time spans, and sometimes by barristers who had not had the brief for very long.  As little as half an hour.

HAYNE J:   At least this man’s first language might have been English; it might have set him apart from some xxx

MR KING:   Your Honour is doing great injustice to the cross‑examination of Mr Stanton before Master Greenwood.  He elicited admission after admission from Mr Taylor about the very thorough going advice he got.

McHUGH J:   Yes, well, he we are talking about generally, of course.  I was not talking about this case, I was talking hypothetically, your Honour.

MR KING:   Those are my submissions.

GLEESON CJ:   Thank you, Mr King.  Yes, Mr Leslie?

MR LESLIE:   If the Court pleases, the provisions under consideration appear in Part 5 of the Act, which is a part of the Act concerned with claims for damages for serious injury.  Serious injury is a precondition of a claim for damages.  It is also an essential factor in a new scheme of statutory revocation which has been introduced into the Act with the modified common law damages.

KIRBY J:   Is there a provision somewhere that defines “serious injury”?

MR LESLIE:   Yes.  Those provisions are examined in the written submissions in some detail.  It is explained how the various expressions used in section 151A are derived from the legislation.  They derive from definition sections, both in the preliminary stages of the Act, and also running through the Act from time to time, and each of the terms of art is revealed by reference to its statutory source.

However, if I might just make some general observations before I come to the specifics.  It is very important to my argument to impress upon the Court that claims for damages under the Workers Compensation Act, if I can call them that, depend upon the proof of serious injury.  So again, it is a precondition.  It is not like the common law where any injury was enough as long as it was more than nothing.  It must be a serious injury, and that is the trade-off for the increased benefits and so forth that are provided by the statutory scheme.

The question of serious injury is critical to liability.  It is also significant to the election scheme and, in particular, to revocation.  But because serious injury is a precondition of liability, proof of serious injury depends upon a balance of probability, not possibility, so that any appeal in considering questions of serious injury to concepts, such as those discussed in Malec v Hutton, past hypotheticals, future possibilities, speculation, and so forth, those principles may be relevant to the assessment of quantum, but they have no place in the determination of liability and, in as much as serious injury is a concept of liability, it is necessary at all times to consider that that concept must be proved on a balance of probability.  Now I hope to erect an argument on that as I go along.  But before I do so, may I come to some historical background.

In the course of the written submissions I have developed references to the old 1926 legislation and discussed the history of election under that legislation, and I say it once, that the scheme of election that was developed through what Chief Justice Jordan described as a “jungle of judicial decision”, is quite different from the scheme of election which is introduced by the 1987 Act, quite different, because election under the old Act has developed by juridical theory between 1926 and 1953, when it was swept away, depended upon an election by the worker which, in turn, depended upon his knowledge and information and if the worker made an unfortunate choice and was able to show that he did not have relevant knowledge and information, such as that he did not know that he had a right of action, he did not know the extent of his entitlements, that was something that could be used to avoid altogether the original election.  There was no scheme under the old Act of revocation with the leave of the court; it depended upon whether the worker himself knew, at the time he made his election, that he had certain rights.  Now, that is not the scheme ‑ ‑ ‑

KIRBY J:   Was that done by the use of both - concentrating on the word “election” - that unless it was a knowledgable election, it was not an election within the statute.  Is that how it was done?

MR LESLIE:   It arose out of the words in section 63(2), which said that the worker might at his option claim either statutory compensation or damages and out of the words “at his option” was developed a body of judicial opinion about what that meant in terms of election.  Chief Justice Jordan thought that all that was unnecessary.  He thought the words were plain and the question of election did not have much to do with it.  The worker could have either damages or compensation if he pursued either remedy - dissatisfaction – that was the end of the matter, but if he took compensation, and whilst he was getting that, before he had exhausted his rights he decided to claim damages, he could have damages, and that is referred to in broad outline by Chief Justice Jordan in Coleman v Shell, and that is referred to in the written submissions.

However, that scheme of election depended on what knowledge a worker had to have and to what extent his knowledge should extend.        Now the “what knowledge” was answered by saying he must know that he has a right of action for damages.  The extent of his knowledge about the right of action was not finally determined before all these problems were swept aside by the 1953 amendments, but between 1926 and 1953 there was a great body of judicial opinion about what the words “at his option” meant and how it dealt with a concept of personal election by the worker depending on knowledge ‑ ‑ ‑

McHUGH J:   That was what the cases were about, was it not, the question of full knowledge?

MR LESLIE   Yes, that is what Chief Justice ‑ ‑ ‑

McHUGH J:   And after Latter’s Case that was just about the end of the matter.  There were a series of cases here in this Court until Latter’s Case.  That was the end of it and in 1953 they changed the form, made it discretionary.  Sufficient cause was one of the terms used.  It came up here in Klein v Domus 109 CLR, but this is a rather different piece of legislation, is it not, Mr Leslie?

MR LESLIE   A different field altogether, but what I draw from that old history is this, that as Chief Justice Latham said in Latter’s Case, what was required was full knowledge and that is all I draw from it, full knowledge.  For the purpose of election full knowledge is necessary.

McHUGH J:   The Court took a very liberal view of the section.  Some of those cases, and Latter’s Case itself was a case of a widow, was it not, so it was said the widow and children did not have full knowledge of their rights so that is why there would be no option.

MR LESLIE   That is right and so it passed into oblivion in 1953.  Now the history of the legislation from 1926 to 1953 is conveniently summarised by Justice Kitto in Chang v Nuffield where he discusses the legislation from 1926 right through to 1953 when it was swept away.      There is a very interesting discussion of those historical matters.  I would not wish to trouble the Court with it.  I merely give the Court that case as a convenient point of reference if the Court wish to look at the old history of election under the 1926 Act. 

But I hasten to add that the new 1987 Act develops a different scheme altogether.  The 1987 Act, in adopting a scheme of election, develops an election which is in no way dependent upon the worker’s knowledge, in no way dependent upon his information.  The election occurs by the operation of a statute upon events, objective events.  They have nothing to do with a worker’s knowledge or intention.  If he commences an action for damages he makes an election.  If he accepts a payment of permanent loss compensation he makes an election, not voluntarily on his part, but by operation of the section upon those events.

However, the worker’s knowledge becomes relevant in the revocation provisions which are engrafted upon the election provisions and there, at that point, the worker’s knowledge becomes relevant.  I do hope I have made myself clear that, under this legislation, the knowledge has nothing to do with election but it has everything to do with revocation.

CALLINAN J:   Mr Leslie, could I just point out that there is only one ground of appeal and it expressly states that – it makes an express reference to a reasonable person in the position of the worker.  So, obviously, you could not have been expected to come here to argue the absolute impersonal objective test that was discussed in Mr King’s submissions.  Is that right? 

MR LESLIE:   Yes.  Yes, I understand what you ‑ ‑ ‑

CALLINAN J:   What I am suggesting to you is that you do not have to meet something which would expressly contradict a matter that is not put against you, indeed, is put, in effect, for you, in the ground of appeal.

MR LESLIE:   I accept what your Honour says with gratitude.  May I ‑ ‑ ‑

CALLINAN J:   For my part, I am not going to take any different view of that from what the notice of appeal states.

MR LESLIE:   May I point out, your Honour, that this is an interlocutory appeal and that the facts in this case are not fully found.  It would have been so much better if this appellate process had been left until the worker had run his common law case pursuant to the lead given by the Master and then brought these matters before the court when the facts were fully found.

KIRBY J:   Tears under the bridge.  It is too late.

MR LESLIE:   Here we are, as your Honour says.

KIRBY J:   Here we are, indeed, Mr Leslie.

MR LESLIE:   May I, on that assumption, proceed?  The possibility/probability argument was first developed in the Court of Appeal.  It was not addressed before the Master nor before the single judge on appeal from the Master.  At both those levels, it seemed to be assumed that the knowledge that was relevant was the worker’s knowledge, what the worker felt about it.  If that be right, the worker wins because the worker has a finding of the Master who saw, heard and believed him, but he did not think his back would get worse.  End of problem as far as that line of country is concerned.

However, we face the difficulty that the test may well be objective and the test may be the question that has to be asked.  As at the date of election, a hypothetical worker must ask himself, “Informed as I am by the actual worker’s past symptoms and disability; informed as I am by his present symptoms and disability; informed as I am by the medical material that is reasonably available to me, have I any reasonable cause to believe that the material deterioration which later occurred will occur in the future?”.

Now, the relevance of the material deterioration to the hypothetical worker at the time of election is this, that if the hypothetical worker’s foresight would have illuminated that event, then the worker fails in his application for revocation.  If, however, the hypothetical worker, the reasonable worker, the worker in his alter ego, would not have understood that he had reasonable cause to believe and his understanding would not illuminate that subsequent event, then the worker is entitled to seek leave for revocation.

That is the significance of the subsequent event but that in the present is a past event.  In the past where the election took place, it is a future event.  So it is a future event in the past which is a past event in the present.  I am sorry to trouble the Court with the linear nature of time but, if one assumes that time is linear, one has to go back to answer this question to the time of election enlightened by several things, the actual worker’s past symptoms and disability, the actual worker’s symptoms and disabilities at the time of election, and then one becomes hypothetical, the hypothetical assessment of what the worker ought to have understood at the time he made his election in the light of events which have later happened but not so that the worker is given the wisdom of hindsight by subsequent events.

The only purpose of the subsequent deterioration as far as the view taken of the future from the time of election is to identify the problem which the worker’s knowledge must illuminate.  If his knowledge would not have illuminated that event, then he is entitled to seek a revocation.  If his knowledge would have illuminated that event, then his application for leave to revoke fails.  The question before the Court is:  to what degree must the worker understand that he has reasonable cause to believe in the material deterioration which occurred?  The answer to that question depends upon the position of the provisions in the Act itself, a provision dealing with serious injury.

I would seek to read into paragraph (b) assumptions that are obviously made by paragraph (b).  Paragraph (b) expressly refers to the deterioration that would entitle the worker to a further lump sum payment of permanent loss compensation.  It expressly refers to that.  That much is clear.  That has to be material because the section talks about it.  But the section is in a part dealing with serious injury.  It is in a part dealing with damages for serious injury, and I say therefore there must be understood as a background to paragraph (b) that the deterioration which occurred not only entitled the worker to a further lump sum payment of permanent loss compensation but also to claim damages for serious injury.

That must, in my respectful submission, be a relevant factor, otherwise the revocation provision, if it applies to anything else, is meaningless.  The revocation provision means nothing to a worker who has a material deterioration which entitles him to further lump sum compensation but does not carry him across the statutory thresholds of serious injury.  The election provision is then meaningless.  It does not address that worker.  It is addressed to a worker who has not only suffered a further deterioration which entitles him to further permanent loss compensation but also to a material deterioration which entitled him to damages for serious injury.  That is, injury which carried him across the serious injury thresholds to a degree of probability, because serious injury is a question of liability and must be considered as a concept of causation and by reference to the principles relating to causation.

That is why I insist that the extent of the knowledge required of the worker, hypothetically at the time of his election, must be a balance of probability because it is being used against a background of serious injury which depends upon proof of probability.

GLEESON CJ:   Mr Leslie, Mr King, under a degree of pressure of argument, put a submission which Justice Callinan later pointed out was inconsistent with the sole ground of appeal.  I do not know what, if anything, Mr King is going to say in reply about the form of the notice of appeal and about that submission that he put in his argument in-chief, but we have the fact that he has put an argument in-chief that goes beyond the ground of appeal in the notice of appeal.  He has a message for you there – before I continue ‑ ‑ ‑

MR LESLIE:   He is going to, your Honour.

GLEESON CJ:   He is going to.

CALLINAN J:   He will have to get leave to amend the notice of appeal so far as I am concerned.

KIRBY J:   It is still an appeal.

MR LESLIE:   On all sorts of conditions.

GLEESON CJ:   That is what I was going to come to:  if Mr King should apply to amend his notice of appeal to make it comprehend the alternative argument that he put in-chief, what is your attitude to that?

MR LESLIE:   My attitude is two-fold:  at the first worst against me, he should be put to all sorts of terrible conditions about costs.  He should pay all the costs of everything in any event.  That is my first position.  The second position is this:  that it would be much more convenient if the whole matter went back for trial so that all the facts could be fully found.

KIRBY J:   You oppose a leave to amend?

MR LESLIE:   If I can.

McHUGH J:   Of course you can.

MR LESLIE:   Well, I do.

CALLINAN J:   You have not come here to argue that, have you?

KIRBY J:   And we are in an appellate process here, I thought we were dealing with an appeal.  This matter has not been run anywhere below.

HAYNE J:   It may suggest that this is a vehicle which is inappropriate to the disposition of the issues which now have emerged.

MR LESLIE:   Thank you, your Honour.  All of that, in spades.

HAYNE J:   “I’ll have one of them”, counsel was heard to say.

McHUGH J:   I have heard Mr King’s argument, and I have to say at the moment, I would dismiss the appeal, having regard to the grounds of the notice of appeal.  That is not to say I might not be in favour of allowing the appeal if there were different grounds.

MR LESLIE:   Is it convenient to deal with that matter now so that I know where I am going?  Because if it goes on and it gets leave and it goes on, I have a few things I want to ‑ ‑ ‑

GLEESON CJ:   Perhaps the most convenient course would be for him to make his application right now, and we can hear you on the application.

MR LESLIE:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr King?

MR KING:   Your Honours, before we go to the notice of appeal, which is at page 140 of the book, I seek leave to amend the grounds of appeal by adding a further ground, (ii), as follows:  alternatively, that on its proper construction ‑ ‑ ‑

McHUGH J:   Can I just stop you there.  Why is the notice of appeal framed in this way?  From time to time one sees notices of appeal asserting there was error because the Court did not do something, but ordinarily one says the Court erred in doing something.  This notice of appeal says it erred in not doing something.  So you take on a burden of making out proof that what you assert is what should have been found, rather than easing the burden of simply saying that what was found was an error.

MR KING:   Your Honour, I see that.  I am sorry; we thought it was clear enough.

McHUGH J:   It is clear enough, but you put your case on a very narrow basis.  You say, “This is my ground”, if the answer to that is no, then you fail, even though the Court might think that the judgment below is replete with error.

GLEESON CJ:   You could have put a ground of appeal that simply said “The Court of Appeal erred in its construction of section 151A(5)(c)”.

MR KING:   Quite, your Honour, yes.  I appreciate that.  I said earlier that we came here to champion Mr Justice Handley’s interpretation and that was one way of putting it.  If I could go back to where I was, your Honour.  I will start again.  If we could call ground i, that which begins with “The Court of Appeal erred in not finding”, so that all becomes ground i ‑ ‑ ‑

KIRBY J:   That is the Justice Handley ground?

MR KING:   Yes, your Honour.

KIRBY J:   And then what is going to be the other one, the Justice McHugh ground?

MR KING:   Precisely, your Honour.

GLEESON CJ:   I am trying to write down something here.  You began with the word “alternatively”.

MR KING:   Ground ii?

GLEESON CJ:   Yes.

MR KING:   “Alternatively, that on its proper construction, section 151A(5)(c) so operates.”  I hope that is clear enough, or perhaps I should say “operates to preclude a worker from revoking his or her election” ‑ ‑ ‑

KIRBY J:   Why do you not just accept the instruction that the Chief Justice said?

GLEESON CJ:   Have you finished?

MR KING:   No, your Honour, I am still going – “whenever there exists” ‑ ‑ ‑

CALLINAN J:   “Preclude a worker”, I am sorry?

MR KING:   “To preclude a worker from revoking his or her election whenever there exists reasonable cause to believe that the further deterioration would occur or was likely or was a real possibility at the time the election is made.”

GLEESON CJ:   Is that it?

MR KING:   Yes.

GLEESON CJ:   As I would understand it, what you have done is, in effect, to follow the methodology that was adopted in drafting the original notice of appeal and that is stating not a ground of appeal, but an argument in support of a ground of appeal, and what you have done is to add an additional argument so that you have now two arguments and, as I say, that is consistent with the way the document was drafted in the first place.  An alternative approach would have been simply to have one ground of appeal saying, “The Court of Appeal erred in its construction of section 151A(5)(c).”

MR KING:   Yes, your Honour.

GLEESON CJ:   So that your method of drafting the original notice of appeal and your method of amending it has pinned you down to the arguments in support of the ground of appeal that you want to raise.  Now Mr Leslie opposes this application.

MR KING:   Yes, your Honour.

KIRBY J:   Do you proffer, given that we are all here and that the matter is important for compensation law and has been argued and this other issue came out in argument, there is a point in Mr Leslie’s argument that in the event that you were to succeed on this additional ground, which has not been argued to any of the many judicial officers below, that you should pay all of the costs of the proceedings below?  Do you proffer those as a term, if the Court ‑ ‑ ‑

MR KING:   I would certainly not cavil with the proposition that we should pay the costs in this Court, in any event.

KIRBY J:   But if you were to win on a ground that you never bothered to argue at any point in the proceedings, then it would seem reasonable that you, in your position, should pay.

MR KING:   I will not say anything further against that, your Honour.

KIRBY J:   But you are asking leave of a Court of Appeal to enlarge a matter in an appeal which has not been – you see, your contention is the court erred, you are saying they erred in a point that you have never bothered to put to them.

MR KING:   Your Honour, I have backed off.  I am saying, and I will not cavil at the – I will not put anything against the proposition that all the costs should follow in the event that the appeal succeeds.

GLEESON CJ:   On that ground?

MR KING:   Yes, your Honour.  Now, I apprehend that I should say something in support of the application to deal with what fell from Justice Hayne and what my learned friend Mr Leslie said about the fact that the matter is interlocutory and it should go back.  With all respect, on that topic, having regard to something he said earlier when he was dealing with the appeal as it then was, proper, namely that it is unfortunate that all the facts have not been found, all the facts have been found for the purposes of this application and this is a suitable vehicle because what is at issue here is the meaning of the section.

CALLINAN J:   Mr King, I will tell you what concerns me, that there may have been a long acceptance and endorsement of what has been the unanimous approach in this case, that it looks to a reasonable person, a hypothetical reasonable person in the position of the worker, and that is certainly suggested by what Acting Justice Fitzgerald said in that extract that is taken at page 125 from Francis v Dunlop.  His Honour there said:

Would a reasonable person with the information available to the appellant –

In other words, there seems to be a body of New South Wales jurisprudence which has accepted this and I do not know whether we are going to get a proper argument which collects all the cases in which this sort of proposition has been accepted and dealt with and developed, perhaps.

MR KING:   This is perhaps proffering evidence from the Bar table or giving your Honour a current affairs bulletin from the Bar table.  The fact is there is no body of jurisprudence.  Francis v Dunlop and this case are effectively it.

CALLINAN J:   The only two in the Court of Appeal.

MR KING:   And at first instance, applications to revoke elections are being stood over because of this appeal.

CALLINAN J:   Yes, but ‑ ‑ ‑

GLEESON CJ:   My understanding is that, apart from its bearing on the construction of the section, this issue did not matter in this case because you were relying on the information in the medical reports of the plaintiff’s doctors.

MR KING:   Precisely, your Honour.

GLEESON CJ:   So that, whilst we find in a number of the judgments in the Court of Appeal in this case a reference to the problems that are one day going to arise or might arise out of the question of what information you should treat as being reasonably available to the worker if that is a relevant consideration, this is not a case that gave rise to any difficulty about that except in so far as the matter might have a bearing on the construction of paragraph (c).  It is not a case, in other words, in which there was information available to the employer that was not available to the employee.  If that problem ever arises, it will be dealt with.

But we see Justice Giles in his reasoning in this case, for example, referring to the concept of information reasonably available to the worker as a slippery concept, signalling that one day it may give rise to a problem.  But he did not think it was a problem in this case.  Am I right in recollecting that one of the grounds on which you supported the application for special leave to appeal was that whilst you preferred the Justice Handley approach, there were some significant differences in what I might call the majority approach in the Court of Appeal, in the two cases of Francis v Dunlop and this case?

MR KING:   Yes, your Honour, I can remember vividly your Honour put to me that the Court of Appeal had settled it and I think I said something like, “Settled it in a very unsettled way”, that there is absolutely no unanimity.  The nearest you get to unanimity is Acting Justice Sheppard saying he agrees with Justice Giles purely on the grammatical significance of “would” and how it derives from “will”, but then he goes on to throw in his second string about beneficial legislation.

GLEESON CJ:   My recollection of the way the special leave application went was that I was putting to you that a reason for not granting special leave was that all you were trying to do was uphold a view that had become entrenched as a minority view in New South Wales, and you sought to answer that by saying the majority are in disagreement amongst themselves.

MR KING:   Yes, that was the thrust of what I put, your Honour.

HAYNE J:   Why should these issues at the level of abstraction that now emerges be litigated at the suit of the employer?  The interest of the employer relevantly is the future.  True it is the employer now has a particular difficulty with this particular worker, but the long‑term interest of the employer – leave aside the fact that it is the State – concerns the future operation of this Act in which particular factual nuances may become important to its construction.  Why should we now grant you the leave you seek?  Why should we not, I for my part ask, revoke the leave?

MR KING:   Because, your Honour, this is a suitable vehicle to agitate the ground that I have just sought leave in respect of which, after all, fell from the Court as a view of the meaning of the provision.  There is a pending body of other cases.  This provision is not operating ‑ ‑ ‑

HAYNE J:   Let them be fought through to the Court of Appeal which ought to be the primary body resolving these questions of State legislation.

MR KING:   Your Honour, this is not a situation in which this Court is obliged to say, “The meaning of the revocation provisions depends upon the facts”.  This Court can give genuine guidance in respect of a provision which is not operating solely prospectively.  There are cases in the pipeline.  It is operating on a day‑to‑day basis.  It is a suitable vehicle, with respect.  Your Honours, those are the grounds ‑ ‑ ‑

KIRBY J:   I thought you answered the Chief Justice that even if you were not to get this leave, you still want to champion Justice Handley and you are content that the matter should go ahead on the ground that you originally filed and on which you got special leave.

MR KING:   Your Honour, I have endeavoured to phrase the ‑ ‑ ‑

CALLINAN J:   Which would settle one aspect of what you now say is unsettled.  It would still leave unsettled one matter, the matter that has arisen now, but at least you would get settled this other question which is an independent question.

MR KING:   It might depend upon the approach of this Court.  If it is not dealt with on the broader basis that I now seek to have it dealt with on, one could see that this Court might say, “Mr Justice Handley was wrong and the result stands”, but the basis for the result then has to be sought in conflicting reasons of four other justices of the Court of Appeal.

KIRBY J:   It is not terribly satisfactory to be approaching a very small piece of legislation in its context with a sort of blinker on us.  That is the problem.  A different theory of the section has been propounded and ideally you would look at it untrammelled and, if your ground of appeal had been the one the Chief Justice mentioned, namely that the Court of Appeal erred in the construction of the section, then there would be no problem in doing that.

MR KING:   Your Honours could tell us what it means, and might I compliment the Court by saying that I do not believe it is beyond the ingenuity of the Court to say, “It means this, and if there are grey areas, these are what they might be”, but broadly, the provision can be construed.

KIRBY J:   The difficulty with that is that the Court deals with grounds of appeal.  That is what an appeal is about.

CALLINAN J:   It is an issue that has never been joined, really.  It is a legal issue that has never been joined until this morning.

MR KING:   But it hardly matters.  Well, it does not matter for the purposes of this case, factually or as a matter of construction, your Honour.  May it please the Court.

GLEESON CJ:   Mr Leslie, what do you say about the application to amend?

MR LESLIE:   I would oppose the application upon the ground that the appeal is an unsuitable vehicle and it is undesirable for such matters to be brought before this Court before the facts are fully found.  May I say, at the risk of repeating myself, that if this case had been brought to the Court after a trial, the Court would be much better informed about what the worker’s medical condition was at all material times.  The Court does not have the advantage of that.  It has gone off on an interlocutory point.

A matter such as this ought to be brought to the Court after a full trial of all the factual matters.  If the field of knowledge is as wide as your Honour Mr Justice McHugh suggests, we, as Mr Justice Callinan points out, are prejudiced ‑ ‑ ‑

GLEESON CJ:   This is not a ground that you took of opposition to the grant of leave in the first place.  I am looking at pages 5 and 6 of the transcript of proceedings on the application for special leave to appeal.

MR LESLIE:   Yes, your Honour.

GLEESON CJ:   Am I right?

MR LESLIE:   Your Honour is right about that.  At that point, we had four judges of the Court of Appeal saying – we had five judges saying the test was objective.  We had four of those five judges saying the criteria for the test was the balance of probabilities.  Now, my learned friend says there is no unanimity.  There was indeed unanimity upon that question.  Justice Fitzgerald propounded the thesis.  It was adopted by all of the other four judges who assented to the proposition.  So, there was unanimity.  I must say that for myself I felt that we had four judges saying “balance of probabilities” and I was greatly astonished when your Honour granted leave.

GLEESON CJ:   So is your submission that the - what I will call the majority view at present in the Court of Appeal, is substantially to the effect that the question to be asked by reference to the information available to the worker is whether, in the light of that information, on the balance of probabilities, the material deterioration would occur?

MR LESLIE:   Yes.

CALLINAN J:   The material deterioration.

MR LESLIE:   The material deterioration would occur, speaking as at the time of election, yes.

GLEESON CJ:   “The” however, does not mean the precise percentage.  The worker does not win if you show that the material deterioration was 18.5 per cent and what would have been expected would have been 19.3 per cent.  What I just put to you is the construction you have come here to support?

MR LESLIE:   Yes, and I have supported it by other arguments as well.

GLEESON CJ:   All right.  We will adjourn for a short time to consider the attitude that we will take to the application made by Mr King and the future progress of the matter.

AT 12.42 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.51 PM:

GLEESON CJ:   Mr King, I apprehend that we have heard full argument from you on your application to amend your notice of appeal, but I am not sure that we have heard full argument from you on the question raised about the possibility of revocation of the grant of special leave to appeal.  If we have not heard full argument from you on that, then we will hear argument from you on that at 2.15pm, but have we heard full argument from you on that?

MR KING:   I do not think your Honours have heard any argument from me on that.

GLEESON CJ:   No.  We will adjourn until 2.15 and at 2.15 we will hear what you have to say on the subject of whether or not we should revoke the grant of special leave to appeal.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ:   Yes, Mr King.

MR KING:   Your Honours, if I could take you to Mr Leslie’s submissions in paragraph 48.  He there says why the grant of special leave should be revoked and he refers to a decision of the New South Wales Court of Appeal of Rampton v Cassim, which was certainly not on our list - I do not know whether it is on his – but what he says there is taken up, to some extent, in what he said when he was on his feet earlier, namely, that all the facts have not been found.  Your Honours, even though I said I had not been heard in relation to this topic, I did say something about it earlier in a different context.

GLEESON CJ:   I thought all the facts relevant to this application have been found.

MR KING:   That is what I said earlier, your Honour, and that is what I say now.  All the facts relevant to this application have been found and my learned friend’s proposition, with respect, is difficult to understand and does not properly state the effect of Rampton v Cassim.

GLEESON CJ:   It seems to involve the notion that there should be a finding about whether the employer was negligent.

MR KING:   Yes, and what the damages will be, whereas ‑ ‑ ‑

McHUGH J:   Speaking for myself, you need not trouble yourself with paragraph 48.  That does not seem to me to provide any ground at all for revoking special leave.  I am only speaking for myself on that point.  But what is more troubling though is this, that you have tied your case, in terms of the notice of appeal, to a particular construction.  If you are given leave to amend, it would be to put an argument that you have embraced, but not without much enthusiasm, and the other side has not come here to meet it so, in those circumstances, we may not get the full assistance we should get if we grant the amendment.

On the other hand, if we refuse the amendment the case is on a very narrow basis which, at the moment, although I may have more sympathy for allowing the appeal on a general basis, I do not, at the moment, see you having much prospects of succeeding on the ground that you have.

MR KING:   Well, your Honour made that abundantly clear this morning but, with respect, that is hardly a ground for revoking the grant of leave.  That is a ground for running a judgment dismissing the appeal on the ground that ‑ ‑ ‑

McHUGH J:   But that is the whole point.  Why should the Court confine itself to a very narrow issue in terms of the construction of this section?  I mean, quite apart from the view I put to you this morning, there may be some intermediate points of view, but Justice Callinan has drawn attention to the notice of appeal and if we have got to stay with the notice of appeal ground, then a case is being determined on a very very narrow issue indeed, not such, it seems to me at the moment, that ought to excite a grant of special leave, once we have heard the argument and seen the problems about the section.

MR KING:   Well, your Honour, may I deal with what you have said in this way.

McHUGH J:   Yes.

MR KING:   The obvious solution is to give me the leave to amend that I have sought.  Now, Mr Leslie is hardly prejudiced or caught on the hop, because if he can come to meet what we initially put, which is the Mr Justice Handley view, he can certainly answer a more stringent view.  It is not as though this Court is going to be left without adequate assistance from the other end of the Bar table.

CALLINAN J:   It just does not seem fair to me.  The point has never been taken, it was only taken very very late in your submissions in-chief, nobody has argued it below, the grant of special leave was on the basis of what now appears in your notice of appeal and what appeared then and your proposed notice of appeal.  It just strikes me, I must say initially, as being altogether too late and unfair, for that reason.

MR KING:   Well, your Honour, next time I am having a drink with Mr Leslie I will commiserate with him that your Honour thinks he is not up to it.

CALLINAN J:   No, that is not ‑ ‑ ‑

MR KING:   But the fact of the matter is, he can deal with this.

CALLINAN J:   That is not what I am putting to you.  I mean, the case has proceeded upon a certain view of the section.  Nobody has sought to contradict that, and then, at the eleventh hour, as a result of something that comes from the Court, an attempt is made to contradict it.

KIRBY J:   I suppose you would say that it is not unknown in this Court for a new point to come up, a new issue, and if it is a point that could be affected by facts, then you cannot do it.  But if it is a point that is purely a matter of construction of a statute, a point of law, then the Court, with assistance and maybe with additional opportunities for written submissions, does it not infrequently.

MR KING:   Your Honour, with respect, I adopt that.  I must say it is not within my experience of this Court, but it is something which happens with great regularity in the New South Wales Court of Appeal and it is exactly in the category that you nominate.

KIRBY J:   But the issue is whether or not that an issue like this could be tendered better to us if it had been taken at earlier stages.  Now, that brings me back to the comment of the Chief Justice and, basically, I am inclined to think that, really, so far as this point was concerned, the relevant evidence was in and, basically, it was the reports of Dr Evans and others at the time.  Is that wrong or not?

MR KING:   Your Honour, with all respect to it, no, that is dead right, with respect.  With all respect to anybody who is of a different view, it has got to be misconceived to say that any other evidence – all the evidence is in, the case was very fully fought before Master Greenwood with a deal of cross‑examination and Mr Leslie, in my submission, is certainly capable of saying no to the possible interpretation of the section which fell from Justice McHugh.  Your Honours, really, I would apprehend that one basis upon which he would say no to that interpretation is the very reason that led us to champion Mr Justice Handley, namely that every single judicial officer before now who has looked at this provision has taken the view ‑ ‑ ‑

KIRBY J:   That was the case in Scobie.  Every judicial officer for 20 years had taken the view it meant the risks of injury on the particular journey.  But this Court said, no, when you look at the statute, it says the risk of injury at large.

MR KING:   Your Honours, there is not much point in my carrying on at any greater length.  My position ‑ ‑ ‑

GLEESON CJ:   Thank you.  Mr Leslie, was there anything you wanted to put further?

MR LESLIE:   No, your Honour.

GLEESON CJ:   All right.  We will adjourn for a short time to consider the course we will take.

AT 2.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.33 PM:

GLEESON CJ:   By majority, with Justice Callinan dissenting, the Court is of the view that the appellant should have leave to amend the notice of appeal as sought by Mr King of Senior Counsel upon the following condition:  that if the appellant should succeed on the new ground of appeal the appellant must pay the respondent’s costs in this Court and in all the courts below in any event.

If that condition is accepted, then the notice of appeal should be formally amended to reflect the leave granted by the filing, within three

working days, of a document containing the amendment and both sides will have a further seven days from today to file any supplementary written submissions they wish to make in addition to the oral arguments which we are in the process of hearing and will continue to hear.  Yes, Mr Leslie.

MR LESLIE:   If the Court pleases, I was endeavouring to persuade the Court that for a deterioration to be material, it must be a deterioration which entitled the worker to additional permanent loss compensation but also entitled the worker to claim damages and I sought to make that construction by reference to the context in which the provision is to be found.  If some other and less serious injury is relevant, the section relating to revocation is meaningless to that particular deterioration.

May I use an example.  Suppose a worker has a deterioration which would entitle him to further permanent loss compensation, but would not carry him across the thresholds of damages needed to establish his right of action, the serious injury being a precondition to his claim for damages.  If the section is talking about that kind of a deterioration, it is meaningless.     If, however, the section is talking about a deterioration which entitles the worker to further lump sum compensation and also to damages for serious injury, then the section begins to have meaning, the provision begins to have meaning.

KIRBY J:   Would you remind me of where we find the definition of “serious injury”.

MR LESLIE:   “Serious injury”, section 151G and 151H.  My learned junior reminds me 151H defines “serious injury” by reference to:

proportions of permanent loss compensation and proportions of modified damages.

KIRBY J:   But this is only for economic loss.  It does not say you can only bring an action for damages if you have had a serious injury.  It is not a precondition to the cause of action.

MR LESLIE:   But the worker has also to cross other thresholds relating to pain and suffering.  Section 151G “Damages for non-economic loss”; there are thresholds imposed there and the worker’s injury must carry him across those thresholds, section 151G(4), and it is these thresholds which entitle the worker to claim damages for serious injury and the whole part is built around the concept of serious injury.  That is the only kind of injury that is actionable at law.  As I say, serious injury is a precondition to liability.

The proof of serious injury must, of course, depend upon the balance of probabilities, that being the standard of proof in civil claims and hypotheses, conjecture or speculation have no part in the determination of whether the worker has a serious injury.  He must prove it on the balance of probability.

GLEESON CJ:   And you say the same applies to the paragraph (c) question?

MR LESLIE:   Yes.

GLEESON CJ:   Which is really thrown up by the facts of the present case that are set out on page 92, which I think is from the judgment of Mr Acting Justice Murray.  The medical reports available to your client, say, in the case of Dr Nott:

It is too early for a final opinion…..may improve, or deteriorate –

but –

likely he will have about 20 percent permanent loss of efficient use of his back following his injury.

He was compensated on the basis of 18 per cent.

MR LESLIE:   Yes.

GLEESON CJ:   Dr Sengupta says:

The long term prognosis…..guarded, as his condition may deteriorate –

and Dr Evans says, over on the next page:

Prognosis:

....uncertain…..could suffer further prolapse.

So, the medical reports in the present case seem to throw up as critical the question whether you say on the balance of probabilities, he would deteriorate, or whether you take the Justice Handley approach.

MR LESLIE:   Yes.

GLEESON CJ:   Do you accept that if you take the Justice Handley approach on the facts, you would lose?

MR LESLIE:   Yes, the case has proceeded on that footing.  There is another approach on which I would win.  That is the worker’s view of the matter, but  ‑ ‑ ‑

GLEESON CJ:   Yes, but we have had that.

MR LESLIE:   There was other medicine available to the worker.  There was the opinion of Dr Cox, who was treating him at the time of the election, he was the doctor who was treating his symptoms of pain and disability, and he said that as at 17 October, that is a month before he took the payment, as at that time, Dr Cox said that his condition was “stable” and his disability was 15 per cent but improving.

KIRBY J:   Where is that, may I ask?

MR LESLIE:   That is at page 55 of the appeal book, page 55, line 30.

GLEESON CJ:   I do not think that anybody has suggested anything turns upon what I am about to put to you and I am not suggesting it is decisive either, but I just like to know what the answer to it is.  Dr Nott says:

it seems likely he will have about 20 percent permanent loss –

He got a lump sum compensation on the basis of 18 per cent.

MR LESLIE:   Yes.

GLEESON CJ:   Is that itself a material deterioration, 18 to 20?

MR LESLIE:   No, I would suggest not.

GLEESON CJ:   Because of the triviality of the number difference?

MR LESLIE:   Yes.  It is barely significant in terms of lump sum compensation and it does nothing for his claim for serious injury.

GLEESON CJ:   Yes.  It is 2 per cent of 60,000, am I right?

MR LESLIE:   Yes.  It does very little for the statutory compensation and it does absolutely nothing for the serious injury damages.

GLEESON CJ:   Now, the next question that arises is this:  bearing in mind the sort of opinions you see expressed on page 92 and bearing in mind that that is a pretty typical situation, that sort of range of opinion, what, if any, light does that throw on the construction of paragraph (c)?

MR LESLIE:   For myself I would hope none at all.  I am endeavouring to persuade the Court that the paragraph (c) deterioration must be a deterioration of significance that carries the worker through the thresholds to the serious injury that entitles him to claim damages, that being what this part is about.

KIRBY J:   But he might already have a serious injury at the time that he settles his compensation case, may he not?

MR LESLIE:   If that was so, your Honour, he would be very fortunate in having another go.  That would be a necessary consequence.  If he, at the time of the election, had already then a serious injury, he would elect to take the compensation in respect of that injury, but if he had a further material deterioration, which entitled him again to further lump sum compensation and entitled him to damages, I would submit, he was entitled to seek to revoke.  However, the circumstances that your Honour mentions would weigh heavily against him on the exercise of the Court’s discretion.

GLEESON CJ:   But is that not this case, 18 to 40 per cent?  That is what he has gone.

MR LESLIE:   But he cannot go on 18 per cent; he can go on 40.

GLEESON CJ:   Eighteen per cent would not be a serious injury?

MR LESLIE:   No, it does not get him there.

GLEESON CJ:   What does get him there?

MR LESLIE:   Around about 40 per cent.  I am taking advice from a practitioner in the field.  Indeed, this whole argument stems from Mr Anderson’s experience in the field and the development of it has had a great deal of assistance, but originally it comes from Mr Anderson’s own experience in the field.

GLEESON CJ:   Do you think you will be putting in written submissions of the kind that we have mentioned on the grant of leave?  I ask the question for this reason.  It would be of assistance to have, in a written form, a reference to the provisions that produce the consequence.  I do not understand there to be any controversy about the consequence you have just stated but it is useful to have a reference to it for the purpose of writing a judgment.

MR LESLIE:   Yes, thank you, your Honour, yes, I will see that that is done.

KIRBY J:   Whilst I remember it, may I ask – there was a note that we received that there was some sort of motion going to be put before the Court for the reception of new evidence which presents a big constitutional difficulty in the light of Eastman’s Case.  Can I take it that, neither party having referred to it, that that is not going to be pressed?

MR LESLIE:   We are not anxious to press that, your Honour.  It was put on the way of a pre-emptive strike to prevent any development of issues of fact which we thought would be ‑ ‑ ‑

KIRBY J:   Well, we can ignore it.  It is not being pressed?

MR LESLIE:   No, the answer is, no.

KIRBY J:   Thank you.

MR LESLIE:   Material deterioration ‑ ‑ ‑

KIRBY J:   Just before we leave 92, I notice that Justice Murray said, “One assumes he had available to him through his legal advisers”.  Is there an exchange of written reports at a time that the matter comes to the Compensation Court so that it can be assumed that the legal advisers have the reports of Dr Nott, Dr Sengupta and Dr Evans?

MR LESLIE:   They were the plaintiff - they were the worker’s own reports.

KIRBY J:   I see.

MR LESLIE:   He would have access to them.

KIRBY J:   Yes, well, that is all that is relied on, I think, so that is all we are going to worry about.

MR LESLIE:   Well, he would also have had Dr Sturrock’s reports which said there was nothing materially wrong with him and he was fit for work.

KIRBY J:   What about Dr Cox?

MR LESLIE:   Dr Cox was available to him.  The worker tried to give evidence of what Dr Cox had told him.  It was objected to and struck out, but the substance of it was got in through Dr Cox’s report.  So, a worker had that in his mind, no doubt about that, and that was part of his assertion, that he did not think he would get worse.

KIRBY J:   That looks like a subjective test, the worker’s own belief.

MR LESLIE:   That is subjective, yes, that is the worker.

HAYNE J:   Can I just understand where you inject the balance of probabilities consideration that you have spoken about.  The statutory phrase is “no reasonable cause to believe the further deterioration would occur”.  Do I understand the submission to be that in looking at the phrase “would occur” questions of balance of probabilities arise or do you say that questions of balance of probabilities arise at some other part of the statutory phrase?

MR LESLIE:   They arise out of the additional words of the section “material deterioration” and arise out of the implications that I am trying to introduce of serious injury.

McHUGH J:   I do not understand what balance of probabilities has got to do with the case myself.  I would have thought that, on any view, whether you take the view I put, the general view that you rely on or the view that your opponent relies on, that it is a belief that further deterioration would, in fact, occur.

MR LESLIE:   Will occur, yes, but it must be material.  The question is, “What is a ‘material deterioration’?”  My submission is that a “material deterioration” is a deterioration which carries the worker across the serious injury thresholds.

McHUGH J:   Well, that may be right, but I do not think it adds anything at all to enable you to understand the section.  It can be assumed in your favour that the section will not be brought into operation because of the discretion unless you can bring yourself within the serious injury field, but that said, how does it throw any light on the construction of subsection (5)?

MR LESLIE:   May I submit that a possibility of a probability ‑ ‑ ‑

McHUGH J:   But the section does not talk about possibilities or probabilities, it talks about a belief, and everybody seems to agree that it is an objective belief, so if you impute the objective belief to the worker, and so you look at it from the worker’s point of view, the question is, “Did the worker have reasonable cause for a belief that further deterioration would occur?”.

MR LESLIE:   Your Honour, I am sorry, I insist on introducing the word “further material deterioration” and I argue ‑ ‑ ‑

McHUGH J:   Well, let us introduce those words, you are absolutely right, the further deterioration is obviously the “further material deterioration”.

MR LESLIE:   One asks, “What is ‘material’?” and the answer is a deterioration that will entitle him to a further lump sum payment and carry him across the serious injury thresholds.

McHUGH J:   You have got to read a lot in to get that.

MR LESLIE:   Not too much, your Honour.  May I, with respect, suggest ‑ ‑ ‑

McHUGH J:   It does not say anything at all about it.  Subsection (5)(b) is talking about a physical situation:

material deterioration in the person’s medical condition –

It is not saying anything about the amount of damages he can get for it.

MR LESLIE:   But it is in a division which is dealing with the subject of serious injury.

McHUGH J:   Yes.

MR LESLIE:   And I would seek to read into paragraph (b), as I have explained in the written submission, the word “and damages” at the end of paragraph (b).

McHUGH J:   But why?  I mean, at the time he made his election he might have had a serious injury.  All he has got to show is that he has got some “further material deterioration”.

MR LESLIE:   I concede that the question of the worker who had a serious injury at the time he made his election presents a difficulty and I have suggested the answer to that is he gets a second chance, but the vast majority of cases will be a worker who did not have a serious injury at the time of his election and who was caught by an unexpected deterioration and all of a sudden he has a serious injury which entitles him to damages.

McHUGH J:   I have got to say, I think you are only adding difficulties.  You have got to read into (c), that you look at it from the worker’s point of view, and then you want to read into (b) that you are dealing in terms of damages.

GLEESON CJ:   If you are right, this was meant to apply to elections that did not mean anything at the time they were made.

MR LESLIE:   The elections ‑ ‑ ‑

GLEESON CJ:   You say, as I understand it, this only applies to elections made by workers who, at the time, would not have thought they had a right to sue for damages at all.

MR LESLIE:   No, with respect, your Honour, not.  It was addressed to workers who, at the time of their election, had an injury which was not then a serious injury but which will, in the future, become a serious injury.  They are not entitled to leave.  But the worker who has an injury which becomes a serious injury, but would not have been apparent to the worker at the time of election that it will become a serious injury, he may have leave.  And that is this case.  He did not have a serious injury at the time.  Looking forward towards what actually happened, it was not reasonable to expect that he – the question the worker asks himself at the time of election is, “Do I think that I will have that serious injury which we know now has occurred?”

GLEESON CJ:   Is it fair to say that, stepping back from the problem a little, the problem this subsection addresses is the problem of an election made in circumstances where the medical condition has not stabilised?  This may be only with the benefit of hindsight you know that, but that is such an obvious problem that the legislature had to face up to it.

MR LESLIE:   That is right, yes.

GLEESON CJ:   So introducing a system of binding election, but then adverting to the well‑known fact that often a worker’s injury will not have stabilised at the time the otherwise irrevocable election is made, the legislature says, “What will we do about that?”.  “We will confer upon the court judicial discretion to relieve the worker of the irrevocability of the election in certain circumstances.”

MR LESLIE:   Yes.

GLEESON CJ:   Then the question is, “What circumstances?”  Well, they could have said, “If the worker’s condition had not stabilised at the time this otherwise binding election was made, the court may relieve the worker of the election but not in circumstances where the worker ought to have realised that his condition might get materially worse.”  Now, the moment you get into that area you raise questions of the degree of rigour with which you will approach the disqualifying state of information or the disqualifying circumstances.  Do you say they could have said, “If, at the time, on the information available, it was more probable than not, then a certain result would follow.” 

MR LESLIE:   Yes.

GLEESON CJ:   But Justice Handley says, as I understand it, just look at the typical medical reports that you have here on pages 92 and 93.  How, in a situation like that would you apply a test of whether or not it was more probable than not that his condition would deteriorate.  You have one doctor saying it is likely to go from 18 to 20 per cent.  You have another doctor saying “his condition may deteriorate”.  You have another doctor saying, prognosis “uncertain”, “could suffer further prolapse”.  How do you apply a balance of probabilities test to a state of prediction or prognosis of that kind?

MR LESLIE:   Justice Fitzgerald did so in a satisfactory manner as far as the worker was concerned.  He said ‑ ‑ ‑

GLEESON CJ:   You support him?

MR LESLIE:   Yes.  Indeed, the other judges of the Court of Appeal support him.  If there is a conflict in medical opinion then the worker is in no position to make an informed choice.

KIRBY J:   Is that how it is reasoned or is it reasoned that he is in no position to have the belief of which the section speaks?

MR LESLIE:   Yes, in no position to have the belief.  Yes.

McHUGH J:   What do you mean, that he has to have a positive belief.  This turns the paragraph on its head.

HAYNE J:   It has become reasonable cause to believe would not occur, rather than no reasonable cause to believe would occur.  The two are radically different.

KIRBY J:   Perhaps you should take us to what Justice Fitzgerald said, if that is convenient and available.

GLEESON CJ:   A convenient place to find it is the attachment to the appellant’s submissions, I think, Mr Leslie.

MR LESLIE:   Yes.  In the attachment to the submissions I think that it appears in paragraph 6 which is on pages 8 and 9 of the unreported judgments and it runs into the notation at 8:

a reasonable person presented with this conflict of expert opinion would have acted on the basis of Dr Gray’s advice –

which was conservative.  Now, in Taylor’s case, Taylor would have acted upon the advice of Dr Cox who was telling him that his condition was stable and his percentage of disability was improving.

KIRBY J:   That seems a reasonable solution to the problem but I just want to know how it fits into the statutory language.  That is the problem I am having.

MR LESLIE:   I am sorry.

KIRBY J:   How does Justice Fitzgerald link his theory of the section to the terms of the paragraph?

MR LESLIE:   By his analysis of ‑ ‑ ‑

GLEESON CJ:   Where is that analysis?  It is quoted in one of the judgments in the present case but I just cannot put my ‑ ‑ ‑

MR KING:   Page 125 of the book, your Honour.

GLEESON CJ:   Is it in the attachment to your ‑ ‑ ‑

KIRBY J:   It is at the middle of page 8.

MR KING:   Sorry, your Honour, it is in Justice Giles’ judgment at page 125 of the appeal book.

KIRBY J:   It is the middle of page 8 of the attachment.

MR LESLIE:   Yes.

KIRBY J:   That is a quote which I assume is Justice Fitzgerald’s quote of the theoretical question which the appellant is facing.  It is not a quote from somebody or some source.

GLEESON CJ:   It is his paraphrase.

MR LESLIE:   It is his paraphrase of the section, yes, and the words “Because of the awkward phraseology” are Justice Fitzgerald’s and they appear on page 8 of the attachment to the argument.

GLEESON CJ:   He went on to address a problem of conflicting medical opinion?

MR LESLIE:   Yes.  Here the medical opinion was all one way.  It is either too early to say or he is getting better, so that Taylor is the classical example, I would submit, of the worker who should have leave.

HAYNE J:   The difficulty with Justice Fitzgerald’s analysis might be thought, perhaps, to lie in his introductory words, “Would a reasonable person”.  Perhaps the question, and I invite your comment on it, should rather be, “Would any reasonable person”.  The inquiry is not for what the mythical, reasonable individual would conclude, it is what would any reasonable person ‑ ‑ ‑

MR LESLIE:   May I submit an answer to that suggestion, your Honour, that the reasonable person is acting upon both subjective information from the worker, medical advice, and a reasonable person’s view upon all of that of the future without the benefit of the hindsight of what has happened but looking towards the future and the question is, “What would his foresight illuminate?”.  If it would illuminate the material deterioration which occurs, then the worker does not have leave, but if his foresight would not illuminate that material deterioration, then the worker ought to have leave subject to questions of discretion.

HAYNE J:   Again, can I put to you for your comment the proposition that Justice Fitzgerald’s construction of the provision amounts to a construction that would be achieved by using the words “it is reasonable to believe that further deterioration would probably not occur”, and I base that largely upon the four lines appearing in the second last paragraph on page 8 of the extract, and that that is a paraphrase of the provision that, perhaps, may be seen as not open.

MR LESLIE:   Your Honour, those are certainly the words the learned judge has used.  If they do not find favour with your Honour, I regret that, but all of the views expressed would accord with the concept of the necessity for the worker at the date of election to understand whether or not any deterioration will carry him across the statutory thresholds.  It must be that level of belief and information.  Anything else is not material to the operation of the section.  A lesser degree of satisfaction is not material to the operation of the section.

If this construction is not adopted and a possibility of deterioration can be sufficient to destroy the worker’s entitlement to election, a worker may well be left without a lump sum payment of compensation and without damages altogether, because although he foresees the possibility that his injury may at some future time carry him across the threshold, he dare not claim the lump sum payment of compensation because that will destroy his right of action.  He cannot bring his right of action because he does not cross the statutory thresholds.  So he may pass through the whole of his working life, to the age of 65 when he is no longer entitled to compensation, without ever having the benefit of either the lump sum payment or a claim for damages.

GLEESON CJ:   I wondered whether we were going to hear from you an argument to the following effect.  There was a discussion very early on about what might be called the vibes, rather than the words here, but was not part of the purpose of this legislation to encourage, if I may use a neutral word, workers not to pursue common law rights?  In other words, a construction of the legislation that discourages people from taking lump sum compensation might, on one possible point of view, be inconsistent with the scheme of the legislation.

MR LESLIE:   Originally, the intention was to discourage workers from claiming damages and was done so brutally by abolishing damages altogether.  Once the decision was taken to reintroduce common law damages, it was done on the basis that damages would only be paid to workers who had serious injury.  It was recognised that those workers were being seriously disadvantaged, that the statutory compensation was not adequate to compensate a worker with a serious injury who had a worthwhile claim.  Now, by worthwhile claim I do not mean that at any time issues of fault are to be taken into consideration in this revocation procedure.  The only issue that is relevant is not fault but serious injury.  That is the issue that must be addressed.  I do not seek to argue that any concepts of fault or breach of duty should be introduced.

GLEESON CJ:   I just thought you might have been wanting to put an argument that the legislation should not be construed to produce the result that no worker whose condition had not stabilised would take lump sum compensation.  They would be forced to pursue their common law remedies.

MR LESLIE:   That is right, but at the terrible ‑ ‑ ‑

GLEESON CJ:   Not an outcome that is likely to have been intended.

MR LESLIE:   Yes.  Is that for me or against me, your Honour?

GLEESON CJ:   I thought it was for you, but I might be over-complicated in my reasoning.

MR LESLIE:   Yes, yes, I see what your Honour is saying.  That would mean that, yes, that is the intention of the legislation, that those workers should have a right to revocation if they accepted the lump sum payment.

GLEESON CJ:   I do not think this was intended to increase the workload of the Supreme Court.

MR LESLIE:   It is no longer the Supreme Court, your Honour, it is the District Court.

GLEESON CJ:   No.

HAYNE J:   Might I return a moment to Justice Fitzgerald’s set of propositions and put this to you, that the use of the expression “no reasonable cause” is an absolute expression of negativity requiring the exclusion of all conclusions reasonably open and not inviting attention to the choice of the better or predominant view, that is, the expression is absolute, “no reasonable cause”.  It does not invite choice between available reasonable conclusions.

MR LESLIE:   If it is sought to draw something from the use of the words “no reasonable cause”, I would protest that there is ‑ I think Justice Handley used the expression in Francis v Dunlop where he said there is a marked difference between “no reasonable cause” and “not any reasonable cause”. Yes, at the top of page 6:

Moreover converting the negative language into a positive form can change the meaning.  The opposite of “had reasonable cause to believe” is not “had no reasonable cause to believe” but “did not have reasonable cause to believe” which has quite a different meaning.

May I submit that, in terms of grammar that may be correct, but it has no difference in substance, zero equals zero, however large or small the zeroes may be written and that “had no reasonable cause” is no different from “did not have reasonable cause”.

I just do not understand the difference that his Honour is driving at there.  I am afraid your Honour Mr Justice Hayne has lost me on the absolute nature of “no reasonable cause”.  Could I suggest to your Honour that “no reasonable cause” is going to make – none at all, is going to make the section unworkable.  Nobody is ever going to quality because it is always possible that there will be a deterioration.  If that is so, the section will never work, has no operation, that the election is irrecoverable.  There is no question of coming back.  Nobody crosses, nobody qualifies for leave to ‑ ‑ ‑

McHUGH J:   That cannot be right because it has to be a reasonable cause.  That is why the words are put in.  It is always possible to say, “Well, yes, it could deteriorate”, but there have to be some reasonable grounds for the belief that it would.

MR LESLIE:   Yes, your Honour.  I am going to vex your Honour by coming back to the argument that it has to be a belief sufficient to carry him across the thresholds.  If his belief is not that good, then he does not have the material belief.  He does not have a belief in a material deterioration.  He may have a belief in a deterioration, but it is not a belief in a material deterioration.

McHUGH J:   The opposite of “no reasonable cause” is “any reasonable cause”.

MR LESLIE:   Does not have any reasonable cause to believe in a ‑ ‑ ‑

McHUGH J:   If there is any reasonable cause to believe that deterioration would occur, then the applicant cannot say that there is no reasonable cause.

MR LESLIE:   If it is material deterioration, your Honour, he has to believe in something a little more than any deterioration or any significant deterioration, it must be a deterioration that will carry him across those thresholds.  I am sorry, I am repeating myself.  I understand your Honour’s view and I fear it.  I am reminded, your Honour, that the words used “would occur”, not “could occur”.

McHUGH J:   No, “would occur”, exactly.  The belief must be that they would incur in fact.  That is the belief.  If there is any reasonable cause for believing that further material deterioration would occur in fact, then you fail.  But if there is reasonable cause for such a belief, then that is the end of the matter from your point of view.

MR LESLIE:   The use of the word “would” is a use of language of past future, as Mr Justice Handley observed in Francis v Dunlop, and the question the worker asks is, “Will I suffer this material deterioration?”, not “might I”, not “could I”, not “may I”, it is “will I suffer”.

GLEESON CJ:   That really brings to the point raised by the second ground of appeal, when you said the question the worker asks.  A possible point of view is that this is a question the Court asks when dealing with the application for revocation; that Master Greenwood asks whether, let me assume, on the information available to the worker, there was no reasonable cause to believe that the further deterioration would occur.  That is a judgment to be made by the Court on certain information.  Let me put to one side possible arguments about what information.  Here, on the information of those medical reports, it is not a question of what the worker believes, it is a question of what the Court believes.

MR LESLIE:   Yes, that is the objective approach, yes.

GLEESON CJ:   And, the point of departure, as I understand it in the court below, is that the majority say, the question Master Greenwood had to ask himself was, whether on that information, that is on those medical reports, it was more probable than not that further deterioration would occur and Justice Handley says, “Well, the question that the court had to ask was whether, on that material, it was possible.”  Well now, it may be that neither of those accurately states the question.  It may be that the question is, whether, on those medical reports the court is of the view that it would have been reasonable to form a belief that the further deterioration would – not might or could – occur.

MR LESLIE:   Yes, or will occur.

GLEESON CJ:   Which I think is closer to the majority view than to the Justice Handley view.

MR LESLIE:   Yes.  I like that approach much better than the alternative.  We would support that approach, but ‑ ‑ ‑

GLEESON CJ:   Well if you have been able to do enough surgery to the section to introduce the concept that the relevant information that is to be the basis of the belief is the information available to the worker, it may be you do not have to do much additional surgery to introduce the idea that the court looks at the totality of that information and makes its own judgment as to belief on the basis of it, which is different from saying, “Is there anything amongst that information which, if it caused somebody to believe that further deterioration would occur, could be treated as a reasonable basis for such a belief?”, which I would take to be the literal meaning of the section.

MR LESLIE:   Yes, I would accept that and support it, yes.

McHUGH J:   But as an old negligence lawyer, you would be familiar with the view that a same body of evidence can lead to opposite conclusions, both of which were reasonable and there is a case to go to the jury.  A jury could find for the plaintiff or for the defendant.  Adopting the analysis of the Chief Justice, why could not the court say there is a reasonable view for this belief?  There is also a reasonable view for the opposite belief, but there is a reasonable view for believing that further deterioration would occur.

MR LESLIE:   Can I pass.  I understand that, your Honour.

GLEESON CJ:   It really does amount to this, does it not, that Justice Handley has given a much more literal interpretation to the section than the majority.

MR LESLIE:   Yes.  The majority interpretation is a workable interpretation and an interpretation which fits the purpose of the section.

GLEESON CJ:   I think, in fairness to the majority, they acknowledge that their interpretation is not a literal interpretation.

MR LESLIE:   Yes, but we must not retreat to the dark days of literalism, we must give meaning to the purpose of the legislation.

GLEESON CJ:   I would assume that everybody is opposed to literants.

HAYNE J:   You are really trying to provoke us all, are you, Mr Leslie?

MR LESLIE:   Yes.

HAYNE J:   It is too late on a Friday for that.

MR LESLIE:   Can I just go back to my notes to see what questions were asked that have not been answered on the way?  I should answer this, my learned friend suggested that 151B introduced a reduction of a limitation period from six to three years and that disadvantaged the worker.  I would say, in answer to that, that that section introduced three years but gave an unlimited discretion to the court to extend the time as under the Motor Accidents Act in Salido’s Case.  The Court had an unlimited discretion, unconfined by the restrictions that had been introduced by the Limitation Act.

So, in that respect, 151B may have shortened up the time but gave a very broad discretion to the Court to extend the time.  I am sorry, I am using my learned friend’s reference, 151D.  It gave the Court a very wide discretion.  It says the three years was a bar “except with the leave of the court”.  They were the words that we used in the Motor Accidents legislation.  They were the words that were construed in Salido’s Case to confer a very wide discretion.  So, to that extent, 151D had beneficial features.

KIRBY J:   There is no indication in that section of criteria for leave.

MR LESLIE:   No.

KIRBY J:   It is purely at large.

MR LESLIE:   Yes, as under the Motor Accidents Act which your Honour and the Chief Justice and Mr Justice Powell construed in Salido’s Case.  I regret that I have exhausted my suggestions apart from those that are mentioned in the written submissions where I have endeavoured to elucidate the constructions that I would urge in support of the majority decision.  Unfortunately, Justice Handley, in his analysis, appeals to the concepts developed in Malec v Hutton and might I again remind the Court that those principles were principles relevant to quantum of damages, assessment of damages, and not relevant to the determination of issues of liability and causation.  Those are the matters that I would wish to urge upon the Court.

GLEESON CJ:   Thank you, Mr Leslie.  Yes, Mr King.

MR KING:   Your Honours, in relation to a minor matter – Mr Leslie’s reference to past statutory history and the type of election which did prevail ‑ a good locus for seeing the difference in language is Harbon v Geddes 53 CLR 33 and on my learned friend’s list. The very first page of the report, page 33, contains as a footnote the election provisions of the old section 63 and, your Honours, with respect, have only to read that and compare the language with 151A to see that we are really looking at a new provision, the operation of which is not informed by the past.

Your Honours, my learned friend devoted much of his time on his feet to the proposition that the election provisions only catch people who have a serious injury at the time they elect, who have a genuine common law action available to them, because they not only see themselves as having evidence of negligence, they see themselves as having a serious injury.  Your Honours, to a very large extent that goes against the very language of the section itself because, if one looks at section 151A, one sees that all that is involved in subsection (2) is that there be:

A person to whom compensation is payable –

Once he does something and, for present purposes, electing against making a claim for damages is in subsection (3)(b):

accepting payment of that permanent loss compensation –

he has made his election.  In our written submissions we point out in paragraph 5.2 at the head of page 4 what is said in the second reading speech, which is:

Any worker may elect to sue at common law if the employer was negligent.  However the recovery of damages will be restricted to seriously injured workers.

Now, the expression “seriously injured workers” there cannot have been used in the way it is used in section 151H.  It must simply mean an injury serious enough to get you damages because the only definition of serious injury is for the purposes of 151H which goes, as Justice Kirby correctly detected, only to economic loss.

KIRBY J:   The phrase is used also in some other sections that I saw.  It is in a heading.  It is section 151H, yes.

MR KING:   The headnote to 151H, your Honour.

KIRBY J:   Yes.

MR KING:   Perhaps I might presume to put this more clearly in the further written submissions that will go in, even though it might be doubted whether it goes to the second ground of appeal, but if you look at 151G it is apparent that you can get damages for non‑economic loss, the statutory equivalent of the old general damages, without getting enough of them to get you economic loss.  In other words, you can have an injury which will return damages for non‑economic loss but it is not a serious injury according to the terminology Mr Leslie sought to use.

Your Honours, we have endeavoured to deal with this argument of Mr Leslie’s in our reply to the respondent’s submissions and I will not labour it, but if your Honours go to page 3 of our reply, paragraph 6 – perhaps if your Honours would go to paragraph 5 at the foot of page 2.

The nub of it really comes in paragraph (6).  The position is that once you take statutory lump sums, you elect to put yourself out of court for the purposes of bringing a common law claim.  That is whether you have got one or not.  It is incorrect, with respect, to my learned friend to say that the question of a serious injury goes to liability; it does not, it goes to quantification.  Section 151G and H make that abundantly clear, as does the comment in the second reading speech.

GLEESON CJ:   Mr King, can I take you back to George v Rockett, the passage at page 116 of 170 CLR and can I suggest to you a possible literal interpretation of the relevant provision, reading into it the concept of belief, as explained in George v Rockett?  If you accept, and I realise that this is controversial, that the question is to be approached on the basis of given information, which, in the present case, happens to be the medical reports set out on page 92 and following of the appeal book, then does that not mean that what the court must ask itself is whether the totality of that information were such that an inclination of the mind towards assenting to rather than rejecting a conclusion that further deterioration would occur was reasonable?

MR KING:   Your Honour, in my submission, no, and may I answer you in a fairly diffuse way, but I hope with a number of readily understood points.  The provision here says, no reasonable cause.  Now, if your Honours would go to Mr Justice Handley in Francis & Dunlop at the foot of page 5, his Honour there notes in the second last line:

the section requires that there be “no reasonable cause to believe” that would occur.  Where there was reasonable cause, at a past date, to believe that something might occur, although there was less than a 50.1% chance of this, it cannot be said that there was no reasonable cause –

I understand that to be something which has been pointed up while Mr Leslie was on his feet by Justices McHugh and Hayne, but his Honour says:

I put to one side cases where the chance is so small that it can be disregarded.

That is a finding of fact that can be made by someone in the position of Master Greenwood to the advantage of the worker.

Your Honour, in further answer, or I hope in further answer, if one goes to what Acting Justice Fitzgerald, as he then was, put as a paraphrase, it is, with respect, an impermissible paraphrase, but his Honour appeared to regard it as a paraphrase which enabled – and this has got something to do with the context of the paraphrase of what this Court said at page 116 in George v Rockett – the worker to pick and choose.  Now I understood Justice Hayne to raise that very matter, that can the worker pick and choose.

HAYNE J:   The point I was seeking to make was that if you are inverting a negative, the inversion must be accurate, it cannot be imperfect.  Criticism that might be levelled – I emphasise “might be levelled” – against Justice Fitzgerald’s paraphrase, is that it is an imperfect inversion of the negative proposition.

MR KING:   Your Honour, I understood you to say, and, with respect, if you did not say it, I will now submit it, that Acting Justice Fitzgerald’s paraphrase obviously seemed to him to enable the worker, or the alter ego of the worker, to be selective about what part of the body of knowledge available to be considered he ought to take comfort in.

HAYNE J:   Or it invited attention to the better or predominant conclusion that would be reached.  Whereas the negative expression is there is no reasonable conclusion.

McHUGH J:   I would even put it a little higher than what Justice Hayne just put it.  It seems to operate on the basis that there can only be one reasonable belief, whereas, if you look at it as it is expressed in negative language, what you have in negative is the existence of any reasonable cause for such a belief.  On the same body of evidence you may have two reasonable beliefs open, but given the terms of the section and the negative way it is framed, then the plaintiff fails to prove – that if the body of evidence supports one reasonable basis for the belief, then the plaintiff must fail, or the applicant must fail, because he has failed to show that there is no reasonable basis for that belief.

HAYNE J:   You have to fall outside the range of reason, not choose where, within the range, is better.

MR KING:   Precisely, your Honour.

GLEESON CJ:   But you have to adhere to the word “would”.  So it is not enough to say there was reasonable cause to believe that further deterioration might occur; the inquiry is about the reasonableness of the basis – is whether a belief that the further deterioration would occur was reasonably based.

HAYNE J:   Another point of view would say that that excises from the statutory expression the word “cause”.  The relevant inquiry being “reasonable cause to believe”, not “no reasonable belief”.

MR KING:   Your Honours, I think it is possible to say something in response to both those comments.  If there is some opinion which is to the effect that there will be deterioration, and it is not such a slight chance that it can be put to one side, as Justice Handley said, and a fact finder in the position of Master Greenwood could disregard it, then, your Honour the Chief Justice, one comes to the drum that we have endeavoured to beat both in our written submissions and our reply in writing, that you are dealing with a context of medical conditions ‑ ‑ ‑

GLEESON CJ:   You can crystallise the problem this way, can you not?  Suppose you had a single medical report, which was available to the plaintiff and which was in the following terms:  there is a 15 per cent chance that this condition will deteriorate.  That is the information.  You then ask yourself the question, “In the light of that information, can it be said there was no reasonable cause to believe that the further deterioration would occur?”.  What is the answer to that question?

MR KING:   It is in the affirmative.  You would say that there was reasonable cause, a 15 per cent chance is good enough, but something my learned friend deprecated any reliance on Malec v Hutton, but that is a chance which would get you some damages against that event.

GLEESON CJ:   A possible point of view is that that is only a reasonable cause to believe that a further deterioration is a 15 per cent possibility.

MR KING:   That it might occur, or that it is a possibility of 15 per cent.  But, your Honour, briefly back to what I was endeavouring to say a moment ago, we are dealing with medical states.  They fall within ranges and you are in a situation of the greater including the less.

GLEESON CJ:   But you can test the construction of the section by taking an easy case, can you not?  The case I have just given you is an easy one on the facts.  Whatever the outcome might be, it is factually about as uncomplicated as you could get.

HAYNE J:   It is factually narrow.

MR KING:   Well, speaking for myself, your Honour, I cannot say that I have never seen a report in which some future risk is being quantified in which a percentage like that has been put, but it would be a great rarity.  It is not an easy case in the sense that it is not ‑ ‑ ‑

McHUGH J:   But it leaves out the question of whose belief and what is the belief?  If the doctor says there is only a 15 per cent chance, no doubt he said that he does not have that belief that it will occur.  If it is the court’s view, the court may take a different view on that material, but it is a question of you have to impute a belief to somebody, actual or hypothetical.

GLEESON CJ:   Let us assume it is Master Greenwood and Master Greenwood is prepared to accept the evidence of the doctor and the doctor says what I put, and let me just assume, and this is controversial I know, but let me assume that the question then is one about Master Greenwood’s inclination of mind towards assenting to rather than rejecting a proposition.

MR KING:   That would be a finding of fact on the part of the learned master as to his own state of mind which would be decisive of the case.

GLEESON CJ:   But if Master Greenwood, on the basis of that material, said, “I incline towards assenting to the proposition that a deterioration would occur”, that would not be reasonable, would it?

MR KING:   Fifteen, in my submission, it would be, your Honour, because you would test by reference to what would happen in litigation in general.  That would be something which would attract damages.

McHUGH J:   What you would say is that it would be reasonable, that it is not a question whether it is reasonable for the Master, but whether he has a reasonable cause for his belief that it would, and he says, “Well, there is only a 15 per cent chance that it will occur and nevertheless, that is a reasonable cause for my belief”.

MR KING:   People would order their affairs against that sort of risk, yes.  Yes, your Honour.

GLEESON CJ:   That is really the point of departure between the majority and the minority here, is it not, in the Court of Appeal?  We know it can happen.

McHUGH J:   I think it goes beyond that because Justice Handley insists you must look at it as a negative proposition.  The other judges frame their questions in positive terms, which may lead you to a different result.

MR KING:   Your Honour, I do not know that the learned Chief Justice’s proposition is completely excluded by Mr Justice Handley.  I would see, with respect, the sort of proposition the Chief Justice is putting as accommodated by the concluding sentence at the top of page 6 of Francis v Dunlop, where the chance is so small that it can be disregarded, it can be put to one side.  I would not, with respect, your Honour, think that a 15 per cent chance would be put to one side.

McHUGH J:   In the refugee cases, although we talk about reasonable chance, but you would say, well, if there is only – that you have reasonable cause for believing that somebody may be persecuted, even though there is only a 20 per cent chance of it occurring.  You have still got reasonable grounds for the at belief that she would be persecuted if she were sent back to some other country.

MR KING:   I think, really, that the point of departure is better formulated into submissions from me.  I will not say the majority.  Justice Giles and Acting Justice Sheppard really do pin their colours to 50.1 per cent or more.

GLEESON CJ:   I might say the refugee case is not a well based belief in persecution, it is a well based fear of persecution.  Now, if the question here was whether there was reasonable cause to fear that further deterioration would occur, that may be a different thing.

MR KING:   Your Honour, in the case of an injured person, fear and belief are virtually interchangeable.  My learned friend referred to, I think, the Maunsell’s Case, in which Lord Simon of Glaisdale said that statutes can take their tenor or their tambour according to the audience.  Now, an injured worker concerned about his own safety would not see a big distinction between fearing that he might get worse and believing that he might get worse.

But, your Honour, I do not need to go that far for the purposes of answering what was being put.  If I might come back, finally, Justice Giles really pins his colours to the mast of absolute probability, greater than 50.1 per cent.  Justice Handley must be right when he says there can be reasonable cause to believe, think, fear, whatever you like, at a much lesser level of probability than that.  Your Honours, those are my submissions.

GLEESON CJ:   Thank you, Mr King.  Then, subject to the written submissions that the parties may file within seven days of today’s date, we will reserve our decision in this matter.  We will adjourn until 10.15 next Tuesday in Canberra.

AT 3.51 PM THE MATTER WAS ADJOURNED