Toohey v Linfox Transport (Aust) Pty Ltd & Anor

[2005] HCATrans 310

[2005] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M9 of 2005

B e t w e e n -

GERALD TOOHEY

Applicant

and

LINFOX TRANSPORT (AUST) PTY LTD

First Respondent

ALLIANZ AUSTRALIA WORKERS’ COMPENSATION (VIC) LTD

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 29 APRIL 2005, AT 12.15 PM

Copyright in the High Court of Australia

__________________

MR C.M. MAWELL, QC:   May it please the Court, I appear with my learned friend, MR D.C. DEALEHR, for the applicant.  (instructed by Nowicki Carbone & Co)

MR D.F. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR P.H. SOLOMON, for the respondent.  (instructed by Herbert Geer & Rundle)

HAYNE J:   Yes, Mr Maxwell.

MR MAXWELL:   If your Honours please.  Your Honours, I have handed up through the associate a filleted version of the current reprint to make it a bit easier for your Honours, as I refer to particular sections.  I might also indicate at the outset that my learned friend for the respondent will not be contending that the 2004 amending Act renders the question that we put forward otiose.  That is an important qualification on what appears in the respondent’s summary of argument, or clarification, perhaps.

Your Honours, the application concerns the meaning of the word “injury” in the 1985 Accident Compensation Act (Victoria).  In our respectful submission, it is difficult to imagine a question of greater general importance than that.  Of course, the particular question is more refined than that, your Honour, but if your Honours would turn to the second part of the photocopy, you will see section 82.  Your Honours will see – this is the entitlement section:

(1)      If there is caused to a worker an injury arising out of or in the course of any employment –

and then another condition –

the worker shall be entitled to compensation in accordance with this Act.

If the Court would then turn to section 98C your Honours will see:

(1)      A worker who suffers an injury which entitled the worker to compensation –

that is, for present purposes, a section 82 compensable injury, then if it results in permanent impairment, then certain assessment consequences follow – the point being that 82 is entitlement, everything else is computation, and this is a question about entitlement.  The same can be seen if your Honours would go to 99(1):

If there is caused to a worker an injury which entitles a worker to compensation –

the language of section 82(1) again.  If your Honours would then turn to 104B, which was one of the sections relevant to an issue in this proceeding, this is a procedural section which says, amongst other things, if your Honours would go to (5B) on page 255 of the print:

If a worker has more than one injury arising out of the same event or circumstances, all of those injuries must be included in the one assessment.

And, finally, if your Honours would go to the last page of the bundle, 134AB – and this is the common law gateway, the subject of the recent decision of the Court of Appeal in Barwon Spinners, to which we have made reference:

(1)      A worker who is . . . entitled to compensation in respect of an injury –

et cetera, has certain conditions to satisfy before being entitled to sue at common law – the point being, your Honours, that in this proceeding the applicant plaintiff contended that relevantly he had sustained two entitling injuries:  an injury to his back and an injury constituted by the impairment of his sexual function; that is to say, the loss of function of his penis as a sexual organ.

The employer disputed, though the judge at first instance held that there were those two injuries, each of them an injury entitling to compensation, the Court of Appeal said, “No, there was only one.  The effect on the sexual function is secondary to, and a consequence of, the only compensable injury, relevantly, being the back”.

As your Honours may have seen from the papers, a claim for medical expenses in respect of the back and the sexual dysfunction injury separately was accepted in those terms.  His Honour, the judge, giving the leading judgment in the Court of Appeal noted at paragraph 5, bottom of page 16 and top of 17 in the application book, that the claim was accepted – do your Honours see this, line 2 on page 17 – “for the right leg and sexual dysfunction”.

Apart from the manifest inconsistency in the insurer’s position in accepting it for medicals but not accepting it for compensation, it rather makes our point that the sexual dysfunction is eligible for consideration as a separate injury, was so considered for the purposes of the claim for expenses and was accepted.  His Honour notes correctly that the decision with respect to medicals had not been challenged, and so it had not.  It was consistent with the plaintiff’s case.  But the issue was defined by his Honour Justice Byrne in paragraph 7.  The issue was:

as to the correctness of the worker’s contention that he suffered injuries to his right leg and to his sexual function.  The position adopted by Allianz –

was, as I pointed out to your Honours, they were not independent injuries but they were to be treated the one as secondary to the other.

Your Honours, at the end of paragraph 8 his Honour advanced the notion that this point was of no practical significance because one needs to consider the injuries together, but, with great respect to his Honour, that is not correct.  If there are two injuries arising from the same event, certainly subsection(5B) would apply; they would need to be considered together.  But if there is only one, as the court held, then only impairment relating to the back injury would be considered in the impairment assessment, and the AMA guides under which these assessments are done do not allow – that is to say, do not admit – any consideration of the sexual dysfunction consequence in an impairment assessment for a back injury.  So it is of very significant consequence, and we respectfully submit so it is in many like cases where referred pain of this kind, or pain from one injury causes another, that makes it a very significant question.

HAYNE J:   Now, where does the Court of Appeal go wrong?

MR MAXWELL:   Your Honour, it goes wrong in paragraph 17.

HAYNE J:   And what is the error ‑ ‑ ‑

MR MAXWELL:   The error is that what is there referred to as “simply a loss or diminution of its function” does not qualify as an injury.  Their Honours refer, in the previous sentence, to what is said to be the “traditional meaning as an identifiable physiological change to the body part”.  Your Honours will see, if you go back to line 10 on page 19, the submission made for the applicant as respondent in the Court of Appeal, was, line 10:

it was sufficient that there be some sudden and identifiable change to the normal functioning of the organ or body part notwithstanding that this is not accompanied by any physiological change.

Now, your Honours, we have referred in our summary of argument to a number of decisions in this Court, in the Victorian Court of Appeal and in interstate appellate courts, which we respectfully submit demonstrate that there is an important and undetermined question about whether a loss of function of a body part is an injury.  We have on our side, your Honours, the decision in Kavanagh, which is best seen where it is referred to in Zickar, which is our No 6 – I am not sure whether your Honours have them numbered.

Your Honours will see that at 317 Justices Brennan, Dawson and Gaudron referred to what Chief Justice Dixon had said.  It is also referred to at 330 in the judgment of Justices Toohey, McHugh and Gummow.  His Honour said this – and this was where there was a rupture of the oesophagus:

It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection.

The point being that Kavanagh held that the rupture was an injury.  Now, it is true that was an event which had a physical manifestation; there was a rupturing.  But what is significant about it is, in our respectful submission, it is a pointer to a view of this case which would say it is no objection to the identification of the sexual dysfunction as a separate injury that it is attributable to another injury in the same body, coming from the same event.

In Deeble, which is No 7, at 115, Justice McTiernan was dealing with bodily injury, and at 115 the view is expressed that injury is any physical or functional change in the condition of the body, and in that case “the involuntary movements of the appellant’s jaw” – your Honours will see point 3 – was held to be an injury.

HAYNE J:   Now, perhaps some guidance may be obtained from these decisions on other statutes and other collocations of words, but the starting point here is section 5 and the definition of “injury”.

MR MAXWELL:   Indeed, your Honour.

HAYNE J:   What is the physical or mental injury that is here demonstrated?

MR MAXWELL:   The injury is the loss of use of the penis as a sexual organ.  That is the injury.  Now, in Kennedy Cleaning, a more recent decision of this Court, your Honour Justice Hayne entered a joint judgment with Justices McHugh and Gummow, and I can take your Honours to 308 in that decision.  At that page your Honours refer to what was said by Justices Finn and Merkel in the court below, and with apparent approval – if I can just find the passage – I am indebted to your Honour.  Middle of that paragraph:

Finn and Merkel JJ said that it was not a prerequisite to the finding of an “injury” which is of an internal nature, that a physical event or incident involve a “rupture or breaking”, and that an occlusion, causing –

and this is the critical passage –

a disturbance of the normal physiological state, will suffice.

HAYNE J:   Now, what disturbance of the normal physiological state is revealed by what appears at page 18, paragraph 10, lines 10 and following, which is there a description, I think, of the sexual dysfunction with which we are concerned?

MR MAXWELL:   Yes, your Honour.  In our respectful submission, normal physiological function – absent some other mental or physical disability, normal physiological function involves the ability to maintain an erection to the completion of sexual intercourse, and the uncontested evidence here is that the pain which the applicant experiences prevents that normal physiological function of that organ.  That is the essence of the application, your Honours.

That, as we have sought to demonstrate, is an issue which will often arise.  It is a departure from the traditional narrow view which has tended to be “Well, unless there’s some rupture or event that you can point to, then it couldn’t be an injury”.  In our respectful submission, the case law, and Kennedy in the passage I have referred to, has moved well beyond that, but the Court of Appeal appears not to have been prepared to do that and to take a view which is that this is just secondary and, accordingly, not a separate injury.

HEYDON J:   Mr Maxwell, I have a problem about double claiming for…..In paragraph 3 there was a claim…..sexual dysfunction that eventually led to some conciliation and he obtained a certificate under section 49.

MR MAXWELL:   Yes, your Honour.

HEYDON J:   Then there was a second claim for sexual dysfunction.  Is that permissible, having had the one claim which either failed or was dealt with, and then another claim?

MR MAXWELL:   I am instructed it is, your Honour.  Different categories of benefit, and the claims are not, as it were, a second bite to the same cherry.  We can – I might even ask my learned junior to explain that to your Honour, but I am instructed to assure you that there is no double claiming.

Your Honours, might I go – and it may be the last line of authority I need to take your Honours to – to the New South Wales line of authority to which we have referred, and which is built on Morrow, which is mentioned in the Court of Appeal.  Morrow is at tab 16.  Might I just mention this, your Honours.  It is common ground that in respect of the sexual dysfunction, separate from the back, this worker has been assessed by the employer’s doctor as having 15 per cent impairment.  So there is a discrete, not insignificant impairment attributable by assessment to the sexual dysfunction.  That 15 per cent will be left out of account if this injury is not recognised.  It will not be taken into account with the back injury impairment assessment.

Your Honours, Morrow is a case under different legislation and a quite different test, but it is important because of the approach which his Honour Justice McHugh there took.  Would your Honours go to page 168 in that judgment?  Your Honours will see just below letter A his Honour said:

The central issue . . . is whether it is proper to take into account loss of use of a limb which is the result of pain in another part of the body.

The relevant New South Wales Act was concerned with what is referred to in subsection (5) as “the permanent loss of the efficient use of”.  Now, that is not injury.  I am not suggesting that for a moment.  But what his Honour concluded at the foot of that page was, three lines from the bottom:

A person who no longer runs as fast or lifts as much as he did because of fear of a heart attack would not ordinarily be regarded as having lost the efficient use of his arms or legs.  On the other hand where the reduced use of a limb is directly caused by pain in another part of the body, it is natural enough to consider the reduced use as constituting a “loss of the efficient use of” the limb.  From the point of view of the worker, for practical purposes, he has lost the use of the limb.  It can hardly matter that the pain which prevents the use of the limb is located in the back instead of the limb.

That has been applied in several cases in New South Wales, to which we have referred.  The only one I want to take your Honours to now is a sexual dysfunction decision, which is Malcolm, No 19.

HAYNE J:   Yes.

MR MAXWELL:   Would your Honours go to the bottom of 274:

The worker’s sexual organs are physically and physiologically normal.  However, he experiences back pain during and after intercourse.  This has interfered with his sexual capacity in two ways.  His Honour found that the severe pain experienced during and after intercourse, including pain experienced the following day, had dissuaded the worker from attempting intercourse, and –

as in the present case –

that the pain had caused loss of erection.

Your Honours, the court concluded, by application of what Justice McHugh had said in Morrow, that the sexual dysfunction attracted the conclusion that there had been a loss of efficient use of the penis because of the severe back pain.

In our respectful submission – and I understand that is the final beep, your Honours – there is a special leave question, namely, whether the identifiable loss of use of function of an organ is an injury within the inclusive definition in section 5 of the Victorian Act.  It is a question which has arisen, as your Honours have seen, several times in the New South Wales context where the Morrow line of decision has become established, but there is no such line of authority in Victoria. 

In our respectful submission, Parliament is likely to have intended that when a person in my client’s position, lost the use of his sexual organ, that, given the necessary work connection, that would be a compensable injury, and impairment associated with that loss of function would be assessable separately from the back injury, notwithstanding that the sexual dysfunction is caused by pain from the back.

In our respectful submission, the conclusion the court arrived at is attended with sufficient doubt because it is far from clear why one would simply say, “Well, it might be the loss of function of a separate part of the body, and it might be a disruption to ‑ ‑ ‑

HAYNE J:   Well, I think you are going back, are you not, Mr Maxwell?

MR MAXWELL:   I am sorry, your Honour.  I will not repeat myself.  If the Court pleases.

HAYNE J:   Yes.  Mr Jackson, we will not trouble you.

The orders of the Court of Appeal of Victoria against which the applicant seeks special leave to appeal depend for their correctness upon the proper construction of the definition of “injury” in the Accident Compensation Act 1985 (Vic).

In our opinion there are insufficient prospects of success in any appeal to warrant a grant of special leave in this matter.  It follows that special leave to appeal is refused and must be refused with costs.

Adjourn the Court.

AT 12.38 PM THE MATTER WAS CONCLUDED