State of Victoria v Collins
[1998] VSCA 129
•4 December 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 5887 of 1997
STATE OF VICTORIA
Appellant
v
PAULINE COLLINS
Respondent
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JUDGES: WINNEKE, P., BROOKING and CHERNOV, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 10 November 1998 DATE OF JUDGMENT: 4 December 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 129
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Personal injury - Action by injured worker against employer - Whether right of action pursuant to s.135A (2) (b) Accident Compensation Act 1985 (as amended) - Injury occurring before amendments to Act in December 1992 - Whether incapacity “did not become known” until after December 1992 - Meaning of “incapacity” discussed.
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APPEARANCES: Counsel Solicitors For the Appellant Mr. S.W. Kaye, Q.C. with Blake Dawson Waldron Mr. J.R. Moore For the Respondent Mr. T.J. Casey, Q.C. with Slater & Gordon Mr. P.J. Coish
WINNEKE, P.:
Pauline Collins (the respondent) was, in 1992, employed by Department of Health, State of Victoria, at the Plenty Hospital. She was a domestic service supervisor. On 2 March 1992 she suffered personal injuries at her place of work when a defective chair on which she was working fell backwards. She injured her lower spine. She was at the time nearly 39 years. Like many work oriented people she hoped that the injury was not a major one and would resolve with appropriate treatment in the fullness of time. She knew that she had suffered an injury to the discs in her lower back because she was in sufficient pain that she had to cease work and within a month had undergone surgery in the form of a laminectomy. She worked hard at re-habilitating herself and by June she was back at work on restricted duties, and by October 1992, although her back was tender, she was working at full capacity.
It cannot be denied that the respondent was aware that she had suffered an injury at work and that that injury was caused in circumstances which suggested negligence on the part of her employer. What she did not know was that at the time when she was endeavouring to re-habilitate herself the government was planning wholesale changes to the “Work-Care” legislation (Accident Compensation Act 1985) calculated to make an already difficult piece of legislation a veritable minefield for those who had suffered injury before 1 December 1992, the date when the new “Work-Cover” legislation commenced to operate, and who wished to recover common law damages from a negligent employer. In giving judgment in the case of Robart v. Matchplan Pty. Ltd. (Supreme Court of Victoria, Appeal Division, unreported, 21 December 1993) Marks, J. noted in respect of the amendments with which we are concerned, in my view accurately:
“Unfortunately, inconsistent use of words and phrases, imprecise expression and failure to state clearly what is intended on important topics are historic characteristics of the Act which have been maintained, with some assiduity, in the provisions which we are now obliged to construe.” (p.4 of his Honour’s judgment)
At the time when the respondent suffered her injury the Accident Compensation Act 1985, s.135, restricted the damages which she could recover in an action brought against a negligent employer. Her entitlement was limited to damages for non- pecuniary loss up to a specified limit. Prior to 1 December 1992 she exercised that entitlement and commenced proceedings in the County Court claiming common law damages pursuant to s.135 Accident Compensation Act.
The amendments to the Accident Compensation Act made by the Accident Compensation (Work Cover) Act 1992 took effect on 1 December 1992, at a time when the proceedings taken by Ms. Collins were pending. S.46 of the “Work Cover” legislation made wholesale changes to rights of injured workers who wished to claim common law damages for injuries suffered in the course of employment. Although the right to bring actions under s.135 (1) for non-pecuniary damages remained for limited purposes the major thrust of the “Work Cover” legislation was to replace the hitherto unrestricted right of an injured worker to bring claims for limited damages with a more restricted right to sue the employer for damages of a more significant kind, including damages for pecuniary loss. This right, created by a new s.135A, was however confined to those cases where the worker claiming the damages was able to prove that the injury suffered was a “serious injury” as that term is defined in s.s. (19) of s.135A. Inter alia such a “serious injury” is defined as meaning “Serious long term impairment or loss of a body function”. In Humphries v. Poljack [1992] 2 V.R. 129 at 140 the Appeal Division of the Supreme Court (per Crockett and Southwell, JJ.) said that to qualify for the description of such a serious injury:
“there must be an impairment of loss of body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequences, an injury is to be held to be serious the question to be asked is: can the injury when judged by comparison with other cases in the range of possible impairment or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
This test of determining whether an injury is a “serious injury”, whether for the purposes of the Accident Compensation Act 1985 or the Transport Accident Act 1986, has been regularly adopted by this Court and its predecessor. In Mobilio v. Balliotis & Ors (Court of Appeal 10 November 1997, as yet unreported), this Court, sitting as a Court of five judges, held that the test should continue to guide judges who are called upon to determine whether an injury is a “serious injury”.
When the parliament introduced s.135A into the Accident Compensation Act by the “Work Cover” amendments in December 1992, it provided by s.s. (2) that:
“A worker may recover damages in respect of an injury arising out of
or in the course of, or due to the nature of employment -
(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or
(b) if the injury is a serious injury and arose before that date, but the incapacity arising from the injury did not become known until that date or a later date.”
It is the meaning of this sub-section, and in particular sub-paragraph (b) thereof, which has been the subject of debate in this appeal. The significance of the sub-section, and the debate upon it, will become apparent by further reference to the facts. As I have said the respondent suffered the injury to her back when she fell from the chair in March 1992; that is before the introduction of the amendments in December 1992. Although she continued to work following the fall, she suffered pain in the lower back, radiating into the left leg and she consulted Mr. Petty, a neurosurgeon. On 1 April 1992 Mr. Petty performed a laminectomy at the L4/5 disc level of her spine. This improved her condition to the point where she returned to work in June 1992. By October 1992 she was performing full duties, although still experiencing episodes of back pain. She was regularly having physiotherapy and was swimming. It was the view of her doctors that her back, at the site of her surgery, was unstable and that she needed to exercise care. She was being treated conservatively with anti inflammatory medication.
The condition which I have described was the condition in which the respondent found herself as at 1 December 1992, when s.135A was introduced into the Accident Compensation Act. As I have already stated, the respondent had initiated her claim pursuant to the existing s.135 (1) of the Act, claiming damages for non- pecuniary loss from the appellant employer on the basis that its negligence had caused or contributed to her injury. However, following the introduction of s.135A, further circumstances supervened which have incapacitated the respondent. On 12 February 1993 she was engaged, in the course of her employment, with organizing a function for a number of people. She picked up some crockery and felt pain in her lower back. That pain worsened and again it radiated into her left leg. She went to see Mr. Petty and, upon his advice, ceased work. An MRI scan revealed that the prolapse of the disc at the L4/5 level had recurred. She underwent a further laminectomy at L5 on 17 May 1993 and on 16 August 1993 a spinal fusion to stabilize L4/5 was performed. These operations have been unsuccessful and the consequences for her have been far reaching. She has been incapable of performing gainful employment and she has continuous pain in the back and leg. She spends approximately one day per week in bed and cannot do any work around the house. She has now shifted her place of residence to Queensland where the warmer climate eases her symptoms.
Following the events which I have described, the respondent’s claim was amended on 26 June 1995 in order to add to the claim pursuant to s.135 (1) of the Act an alternative claim pursuant to s.135A; that is a claim for serious injury. The relevant amendments were as follows:
“4A. Further, the Plaintiff’s injury as set out above suffered in the incident [that is the incident on 2 March 1992] arose out of, or in the course of, or due to the nature of her employment with the Defendant and is a ‘serious injury’ within the meaning to (sic) Section 135A of the Accident Compensation Act 1985, as amended, and arose before the 1st of December 1992, but the incapacity arising from the injury did not become known until that date or a later date.”
The pleadings were further amended to make a claim for pecuniary, as well as non- pecuniary loss.
It has, at no time, been contended by the appellant State of Victoria that the respondent was not entitled to amend her claim in the form which she did. On the contrary the appellant amended its Defence on 23 August 1995 by adding a paragraph “4(a)” in which it denied the facts raised by the respondent in her paragraph 4A of the Amended Statement of Claim.
On 18 June 1997, and following the amendments to the pleadings, the proceedings were transferred from the County Court into the Supreme Court pursuant to the Courts (Case Transfer) Act 1991. On 17 October 1997 Master Kings ordered that the issues between the parties be set down for trial before a judge sitting alone. By that time the parties had agreed upon the “quantum” of the respondent’s “non-pecuniary loss”; and had also reached agreement upon the “quantum” of her “pecuniary loss” claim if she was entitled to pursue such a claim. The remaining issue between the parties was, accordingly, a very narrow one involving a determination of the question whether, on the facts of the case, the respondent could make a claim for pecuniary loss by establishing an entitlement pursuant to s.135A (2) (b) of the Accident Compensation Act (as amended). Thus when the matter came before Balmford, J. in February of this year, her Honour was requested to hear such evidence as the parties desired to place before her and, in the light of that evidence, to answer three questions which the parties had framed for her consideration and determination. Those questions were as follows:
“As a direct result of the incident pleaded in paragraph 2 of the
plaintiff’s amended statement of claim as occurring on 2 March 1992:
(i) Did the plaintiff sustain a serious injury within the meaning of s.135A (19) of the Accident Compensation Act 1985 (“the Act”)?
(ii) If yes to (i) did the injury arise before 1 December 1992?
(iii) If yes to (ii) did the incapacity arising from the injury not become known until 1 December 1992 or a later date within the meaning of paragraph 135A (2) (b) of the Act?”
Thereafter her Honour, on 13 and 16 February, heard evidence from the respondent and her treating doctor John David Colbert, and received by consent various medical reports and other documents of a medical nature, tendered on behalf of the respondent. Some of those medical reports were from doctors retained by the appellant.
On 7 April 1998, her Honour answered each of the questions referred to her for determination in the affirmative. She found the respondent to be a witness of truth and found the facts basically as I have earlier recited them. In other words, her Honour found that, although the injury sustained in March 1992, when the respondent fell from the chair, had produced instability of her back which required her to take care, that injury nevertheless appeared to have resolved itself substantially by October 1992 at which time the respondent had only slight apparent residual effects and had resumed her normal day to day activities including her employment. The events of 1993, which produced what her Honour described as “total incapacity” occurred in circumstances which demonstrated that the injury and resultant instability was far more significant than had been previously believed.
Her Honour found that the “disabling events” of 1993 were a product of the injury sustained in 1992 and had produced a situation which enabled her to describe that injury as a “serious long-term impairment of bodily function, namely the function of [the respondent’s] back, which can be fairly described as ‘very considerable’ in comparison with other cases in the range of possible impairments”. Thus, by applying the test which the Court in Humphries v. Poljak (supra) regarded as the appropriate one, her Honour was satisfied that the injury suffered by the respondent was a “serious” one within the meaning of that term as defined in s.135A (19) of the Act. Her Honour was also satisfied by the evidence that the respondent’s injury “arose before 1 December 1992” within the meaning of those words where used in s.135A (2) (b) of the Act. She, thus, answered “yes” to questions (i) and (ii) which the parties had submitted for her consideration.
Her Honour then turned to the consideration of question (iii), namely:
“... did the incapacity arising from the injury not become known until 1 December 1992 or a later date within the meaning of [s.135A (2) (b)] of the Act?”
In considering this question her Honour regarded the “incapacity” referred to in the sub-section as meaning “incapacity for work”. It appears that she did this because the parties were in agreement that this was the meaning which the proper construction of the statute required. Her Honour concluded from the evidence that although the respondent had been incapacitated for work for a time following the receipt of the injury, that incapacity had wholly ceased by October of 1992. She continued:
“That being so, it was not until after the second incident [that is, the 1993 events] that it was known that she had suffered a serious injury. Before the second incident it was clearly known to the doctors, and indeed also to the plaintiff, that she had suffered a ‘long-term impairment to the function of her back ...’. But she returned to full time work in October 1992, without any formal restrictions being placed on her duties. That being so, it could not have been known until after the second incident that long-term impairment was ‘serious’ in terms of the passages cited from Humphries v. Poljak and Maloney v. Muling ... so as to constitute a “serious long-term impairment’ and thus a ‘serious injury’ in terms of paragraph 135A (19) (a).”
Her Honour then went on to hold that the respondent’s long-term incapacity for work, in the words of paragraph (b) of s.135A (2) “is to be perceived as a matter arising from the serious injury”. She then postulated the question: “When did that incapacity ‘become known’?”
Her Honour answered that question as follows:
“Until after the second incident on 12 February 1993, it could not be known, either to the doctors or to the plaintiff, that on 2 March 1992 the plaintiff had in fact suffered a ‘serious injury’ as defined. Until then the injury had not caused the long-term incapacity for work which showed the injury to be a serious long-term impairment of the function of her back, and hence a ‘serious injury’. The discrete periods of ... incapacity which the plaintiff had suffered in 1992 are not relevant to the question, because of the use of the expression ‘the incapacity’ in paragraph 135A (2) (b). That expression must mean, on its true construction and on its application ... to the particular circumstances of this case, the incapacity which renders the injury a ‘serious injury’, and not the earlier periods of incapacity.”
Accordingly her Honour also answered question (iii) in the affirmative.
On the hearing of this appeal, Mr. Kaye Q.C., who appeared with Mr. Moore for the appellant, did not challenge her Honour’s findings of fact. Rather, he contended that, on those findings, her Honour was bound to conclude that “the incapacity” which she found to have arisen from the injury was one which had “become known” before the relevant date, namely 1 December 1992. Accordingly, Mr. Kaye contended that her Honour had misconstrued the meaning of s.135A (2) (b). He submitted that the words of the sub-section should, in the light of the Parliament’s clear intention in introducing the 1992 “Work-Cover amendments”, be given a very restrictive application against the respondent. He contended that it was the obvious purpose of the legislation to significantly restrict the types of injury which would attract common law damages; namely “serious injuries”. He further submitted that it was also the evident purpose of the legislation to preserve in only limited circumstances the right to claim common law damages for a “pre 1 December 1992 injury” and to make a clear distinction between the right to damages for such an injury and the right to damages for a “post 1 December 1992” injury. He contended that, although her Honour was correct in interpreting the words “the incapacity” where used in s.135A (2) (b) as meaning “incapacity for work”, she was in error in importing notions of the “nature and extent” of incapacity which was calculated to give a protean quality to the expression which was not warranted by the clear words of the section. As I understand the submission, it was that the words “the incapacity” means, in effect, “any incapacity” for work which had been demonstrated to have been caused by the injury so that, for example, if a worker had suffered a knock on the head which had resulted in concussion and a transient incapacity for work, that would be sufficient to constitute the “known incapacity” of which the section speaks, even though at some later time the worker had developed epilepsy which was shown to be the consequence of the injury. It was submitted that, if the legislation had intended the knowledge of the incapacity to be linked to the knowledge of the “seriousness” of the injury, then the legislation would have been cast in a different form. It was Mr. Kaye’s contention that the definition of “incapacity” in s.5 (the definition section) of the Act made it clear that the words “the incapacity”, where used in s.135A (2) (b), meant “incapacity for work” and that once it had been demonstrated that an injury had resulted in an incapacity for work, no matter how transitory, that was sufficient to disqualify a person from achieving an entitlement to claim damages pursuant to s.135A (2) (b). Indeed, it was Mr. Kaye’s contention that the sub-section was intended to cater, in the main, for those “insidious” injuries or diseases of which a person was unaware at the time the insult was occurring, but which only manifested themselves at some later time when symptoms began to emerge.
In the alternative, the appellant submitted that, even if her Honour’s interpretation of the sub-section was correct, on the evidence she should have found that “the incapacity” was known before December 1992 because, between the months of March and December of 1992 she was aware that she had suffered a back injury which had resulted in incapacity for work and the events which occurred in 1993 were simply recurrences of the same incapacity in respect of which she knew she was at risk.
In response to the appellant’s contentions, Mr. Casey Q.C., who appeared with Mr. Coish for the respondent, submitted that her Honour’s construction of the sub-section was correct. It was his contention that the words in s.135A (2) (b) “the incapacity arising from the injury” clearly refer to the known incapacity which arises from the “serious injury” which in turn derives from the initial insult. He submitted that such incapacity cannot “become known” until such time as it becomes clear that the claimant is suffering from a “severe long-term impairment of bodily function”. On the facts of this case, he continued, her Honour was correct in finding that the incapacity arising from an injury of that nature was not known until after 1 December 1992. He further contended that, although the overall purpose of the legislation might have been to cut down the number of claimants who could claim common law damages for work-related injuries, the purpose of s.135A was to “open the door” to claimants who had suffered “serious injuries” and that, accordingly, if there was some ambiguity in the construction of sub-section (2) (b) it ought to be construed liberally in favour of the worker (Bull & Ors. v. The Attorney-General for New South Wales (1913) 17 C.L.R. 370 at 384; Wilson v. Wilson’s Tile Works Pty. Ltd. (1960) 104 C.L.R. 328 at 335; Dodd v. Executive Air Services Pty. Ltd. [1975] V.R. 668 at 679).
In my view, the construction which her Honour gave to s.135A (2) (b) was basically correct and further, upon the facts as she found them to be, there is no foundation for disturbing the conclusion to which she came. My reasons for so concluding are as follows:
(i)
The sub-section clearly contemplates that some injuries are “progressive” and that their ultimate consequences to the victim will be the measure of their “seriousness”. Examples are not difficult to bring to mind and many were canvassed during argument on the hearing of the appeal. A person may receive, at work, a blow to the head the immediate consequence of which is loss of consciousness and concussion leading to temporary incapacity for work. Although it might initially have been believed by all concerned that the injury would have no long term consequences, subsequent events may demonstrate that the injury is a “serious one” if post traumatic epilepsy or other forms of brain damage develop. Similarly injuries to the skeletal processes might be thought to be of minor consequence, necessitating only a few days off work, but later events may prove them to be serious if joint changes which the injury has set in motion develop to the point where the victim is crippled by pain and limitation of movement. According to the appellant’s construction of the sub-section, these permanent incapacities are not the “incapacity” of which the sub-section speaks, but rather it is the temporary incapacity for work which the injury initially produced. If that were so, the sub-section would admit very few “serious injury” claimants whose initial injury had been sustained prior to the date fixed by the sub- section.
(ii)
I agree with the judge’s conclusion that the incapacity arising from the injury is not the temporary incapacity for work produced by the initial insult, but rather is “serious injury” incapacity which “becomes known” when events demonstrate that the victim of the injury is, relevantly for the purposes of this case, suffering from a serious long term impairment or loss of a body function. In other words the “incapacity” of which s.135A (2) (b) speaks is the incapacity which becomes known when the injury is demonstrated to be a “serious” one within the meaning of sub-section (19). Not only does s.135A (2) (b) draw a clear connection between the “serious injury” and the incapacity arising from that injury but the evident purpose of s.135A is to entitle workers to recover damages for “serious injuries”. That purpose would, I think, be frustrated if the word “incapacity” was to be given the restrictive meaning for which the appellant contends.
(iii)
Although the trial judge, and the parties, proceeded upon the basis that “the incapacity” referred to in the sub-section was confined to “work incapacity”, for my own part I cannot see that, in the context of this section, the words are so limited. Her Honour appears to have been drawn to the conclusion that the words did refer to “work incapacity” because of the definitions given in s.5 of the Act to “total incapacity” and “partial incapacity”. Quite apart from the fact that the definitions in s.5 are required to give way to context or subject matter, s.135A (2) (b) is not referring to the “total” or “partial” incapacity for work, in accordance with which the compensation provisions in Part IV of the Act measure “weekly payments”. Thus, in s.93 and the succeeding sections the “incapacity” giving rise to the entitlement to weekly payments is specifically described as an “incapacity for work” which, in itself, contemplates that the meaning of the word “incapacity”, if used without the qualification, has a wider significance, an interpretation which, in my view is confirmed by the definition attributed to “serious injury” in s.93B (5). Furthermore, the incapacity referred to in s.135A (2) (a) is “the incapacity arising from the [serious] injury”. Used in that context, it seems to me that the incapacity of which the section speaks is used in its more general and accepted sense of “physical or mental incapacity”, namely an incapacity to the victim deriving from the injury and its consequences. The definition of “serious injury” in s.135A (19) is not related to incapacity for work although such an incapacity may, at once, be seen as a consequence of such an injury and a demonstration that the injury is a “serious” one. However an incapacity for work is not necessarily a component of a “serious injury”. Thus a worker who has been badly lacerated in a work accident might need several weeks off work after such an accident. After much treatment the resultant scarring might be seen to amount to “permanent serious disfigurement” qualifying as a “serious injury”. It is the ultimate disfigurement which, in my view, constitutes the “incapacity” resulting from the injury to which s.135A (2) (b) refers, and it would be a capricious result if such a worker was to be denied a claim under s.135A simply because he or she had been temporarily incapacitated for work immediately following the accident. The “seriousness” of an injury leading to the type of incapacity to which, in my view, s.135A (2) (b) refers might, in some cases (e.g. loss of limb or sight) be immediately apparent upon the happening of the injury; but in many other cases it will be anticipated that appropriate treatment and management will preclude the injury from becoming “serious”, in the sense that it will forestall serious long-term incapacity. In these cases the nature of the incapacity will not become known until the facts demonstrating that the injury is “serious” are themselves known. A similar view of s.135A (2) (b) was taken by Vincent, J. in the recent case of In Line Courier Systems Pty. Ltd. & Anor. v. Walker (Supreme Court of Victoria, unreported, 11 June 1998 at p.8). In my view the construction which his Honour gave to the sub-section is the correct one and, insofar as different views have been expressed in the County Court decisions in Kelton v. Evergreen Pastoral Improvements Services Pty. Ltd. (unreported, 24 August 1995, per Judge Nixon, at pp.4-5) and Lister v. J. Gadstone Pty. Ltd. (unreported, 13 October 1995, per Judge Williams, at pp.4- 6), I respectfully cannot agree with those views although I do not suggest that the decisions given in those cases, on their particular facts, were wrong.
(iv)
If s.135A (2) (b) is to be construed in the manner in which I believe it should, it will often be a difficult question of fact whether the relevant incapacity became known before the date fixed by the legislature. Injuries to skeletal processes will, no doubt, frequently raise difficulties in deciding this factual issue. In particular, back injuries are notorious in producing such factual difficulties. However, in this case, it seems to me that it was well open to her Honour to have resolved those factual issues in the way in which she did, and to find that the incapacity of which the sub-section speaks did not become known until after 1 December 1992. The facts in this case were uncontested and, as her Honour noted, it did not become necessary to construe the meaning to be attributed to the words “become known” as used in the sub- section. No substantial argument was addressed to this Court as to the meaning of those words and it is unnecessary for this Court to say anything further about them.
I would, for the foregoing reasons, dismiss the appeal.
BROOKING, J. A.:
I concur in the judgment of Winneke, P.
CHERNOV, J. A.:
For the reasons given by Winneke, P., I agree that the Appeal should be
dismissed.
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