Turton v State of Victoria and Anor

[2002] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8097 of 2000

BRIAN TURTON
	Appellant
v.
STATE OF VICTORIA AND ANOR.	Respondents

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JUDGES:	PHILLIPS, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2002
DATE OF JUDGMENT:	6 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 123

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Accident compensation – Workers compensation – Claim for lump sum under the “Table of Maims” – “Loss of mental powers involving inability to work” – Item repealed on 1 December 1992 – Whether condition must be shown to have existed before date of repeal – Workers Compensation Act 1958 s.11, Accident Compensation Act 1985, s.98.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.P. Parrish and Mr. I.R. Fehring	Holding Redlich
For the First Respondent	Mr. A.G. Uren Q.C. and Mr. R.C. Forsyth	Gadens Lawyers
For the Second Respondent	Mr. D.G. Brookes and Mr. P.J. Coish	Mills Oakley

PHILLIPS, J.A.:

1. This appeal arises out of a proceeding commenced in the County Court by the appellant as plaintiff.  Mr Turton, who was a member of the Victoria Police Force, alleged that over the years of his employment between July 1985 and 1994 he suffered injury as a result of which he was entitled to benefits under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 or both. In particular, he claimed in this proceeding benefits under s.11 of the 1958 Act and, further or alternatively, s.98 of the 1985 Act - the Table of Maims, as it used to be called.

1. There were two defendants to the proceeding.  The first, now the first respondent, was the employer and was there to answer the claim made under the Workers Compensation Act.  The second is now replaced by the second respondent, the Victorian WorkCover Authority, the proper defendant to the claim under the Accident Compensation Act.  The Authority was substituted as a respondent by an order made this morning by consent.

1. The proceeding was commenced in the County Court on 29 June 1999 when the writ was filed. The matter came on for trial on 15 June 2000. In the course of his evidence at trial the plaintiff claimed that in July 1985 he had been involved in a major boating incident which had seriously threatened his life and that thereafter, until late 1989, he had been exposed to a number of threatening incidents which affected his psychological health. He claimed that by 1989 he was unable to continue in his regular police duties which were then with the Water Police, and when given the opportunity he transferred to duties in the Traffic Department which he continued to perform until 5 September 1994 when he ceased work. Medical evidence was called both by the plaintiff and the defendants, the plaintiff claiming that as a result of the incident in July 1985 he developed a post-traumatic stress disorder, a condition which was aggravated and/or exacerbated by the incidents that occurred subsequently up until late 1989. In the result, he claimed to have suffered a loss of mental powers including an inability to work, for which he was entitled to benefits, he said, under s.11 or s.98, or perhaps both.

1. The claim made by the plaintiff was justified by a provision in the Table of Maims, appearing both in the 1958 Act and in the 1985 Act until 1 December 1992.  That item read: 

"Total and incurable loss of mental powers involving inability to work." 

Under both the 1958 Act and the 1985 Act the injury was compensable also if it consisted "of a lesser but substantial degree of any injury for which compensation is payable": see s.11(2) and s.98(4). Under s.98(5) the impairment had to be permanent.

1. On 1 December 1992 the item which I have quoted was replaced by an item of no present relevance, with the result that the plaintiff's claim, if it could be justified at all, had to be justified by the legislation as it stood prior to 1 December 1992.  There has been some discussion about this this morning, and the parties seem agreed that the consequence of this amendment to the Table was as described in Isuzu General Motors Australia v. Jordon[1]:  that is to say, in so far as the plaintiff was relying upon a continuing deterioration in his mental condition to which employment was a contributing factor, such employment, to be relevant, must have been before 1 December 1992, and employment after that date was irrelevant as a contributing factor.

   [1](2000) 2 V.R. 212 at 215.

1. On 30 June 2000 the County Court judge dismissed the plaintiff's claim with respect to both defendants.  In his reasons for judgment his Honour referred to Roberts v. HIH Winterthur Workers Compensation (Vic) Ltd[2], a decision of the late Judge Smith, and Hasty v. State of Victoria & Anor[3], a decision of his own.  His Honour said of these:

   [2]Unreported, 8 April 1998.

   [3]Unreported, 21 July 1999.

"In both cases it was held that s.98 claims for total and incurable loss of mental powers failed because the workers had not been forced by their injuries to stop work before 1 December 1992."

Here, his Honour thought it enough to answer the plaintiff's claim that, although he transferred from the Water Police in 1989 to other duties and worked "efficiently and happily" until other events brought continued service to an end in 1994, the plaintiff was not forced by his injury to stop work before 1 December 1992.  His Honour said: 

"I should also say, lest there be any doubt about the matter, that the evidence did not satisfy me that the plaintiff's condition, prior to 1 December 1992, was either incurable or incurable and permanent ... .  All indications from the evidence are that after the plaintiff transferred [from the Water Police] to the [Traffic Unit], symptoms which he had previously experienced went into remission.  It seems to me unlikely therefore, that it could be said that there is evidence sufficient to satisfy the court that the plaintiff's loss of mental powers was either incurable or incurable and permanent at least prior to 1 December 1992."

The plaintiff's claim therefore failed, said his Honour.

1. It seems to me clear enough that his Honour applied his earlier decision that when the claim was for total and incurable loss of mental powers the claim had to fail if the worker "had not been forced by his injuries to stop work before 1 December 1992".  In this instance, as I have said, the plaintiff kept working until he ceased work in September 1994, yet, as Isuzu shows, that does not mean that no claim can succeed under the Table of Maims.  In Isuzu itself, the plaintiff had continued working for his employer until March 1994.  The repeal of the item relied upon as from 1 December 1992 does not mean that the condition relied upon under the Table of Maims must be established by that date.  It is enough if the injury from which the condition results has occurred by then, if resulting from or contributed to by employment prior to 1 December 1992.  I refer to Howe v. Simmons Bedding Co. Pty Ltd[4] as applied in Isuzu. 

   [4][1980] V.R. 177.

1. It is apparent from the discussion this morning that the parties are now agreed that, on that account, the approach taken by the judge below was in error.  That being so, it follows that this appeal should be allowed and the question becomes whether this Court should proceed to determine the issues raised in the proceeding below or remit the matter for re-trial.

1. What has been said by counsel on this question has served to make it clear, at least to my mind, that significant findings of fact are needed before all of the issues

can be determined, and in all of the circumstances I now have no doubt but that we should remit the matter for re-trial.

1. On behalf of the first respondent, Mr Uren argued that, so far as liability under the Workers Compensation Act was concerned, s.1A of the Workers Compensation Act (as amended) made it plain that the plaintiff could not succeed against his client.  He submitted that, whatever else might be established, the plaintiff could not, on the evidence led below, succeed in showing that there was either relevant injury occurring before the appointed day or, if occurring after the appointed day, injury arising out of or in the course of employment solely before the appointed day.  The appointed day was 4 p.m. on 31 August 1985.  Suffice it to say that neither the plaintiff nor the second respondent agreed that this was self-evident and both, according to their counsel, wish to argue the contrary.  As the submission made by Mr Uren must ultimately depend upon the facts, it would in my opinion be premature, if this matter is to be re-tried, for us to dismiss the first respondent from the proceeding at this stage.

1. For these reasons I would allow the appeal, set aside the orders made in the County Court on 30 June 2000 and remit the matter for re-trial.  Unfortunately, given that the orders below were made more than two years ago now, it seems that the matter will have to be tried afresh.

BUCHANAN, J.A.: 

1. I agree.

VINCENT, J.A.:

1. I agree.

PHILLIPS, J.A.:

1. The orders of the Court are as follows:

1.        The appeal is allowed with costs.

2.        The orders made in the County Court on 30 June 2000 are set aside.

3.        The matter is remitted to the County Court for re-trial.

4.The costs of the trial in the County Court in the year 2000 are reserved to the judge conducting the re-trial.

1. In addition to those orders, the Court grants each of the respondents a certificate under the Appeal Costs Act.

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