Alcoa of Australia Ltd v McKenna [2003] VSCA 182

Evidence - Surveillance film of applicant claiming injury is serious injury - Cross-examination - Discretion of court to refuse respondent right to show film in absence of calling its maker - Whether maker of film is "maker of the statement" for the purpose of s.55(1) of the Evidence Act 1958 - Evidence Act 1958 ss.3, 55.

2. While the other members of the Court agree that this appeal should be dismissed, they differ as to whether an applicant for leave to bring proceedings pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act") is required to satisfy the court not only that he or she has sustained a "serious injury" within the meaning of s.135A(19), but also that the injury meets one or both of the sets of criteria contained in paragraphs (a) and (b) of s.135A(2).

5. In the view of Chernov, J.A. the court's task under s.135A(4)(b) is limited to determining whether the applicant has sustained compensable injury arising out of or in the course of his or her employment that meets the definition of "serious injury" in s.135A(19) and, in an appropriate case, deciding whether in the exercise of a discretion to refuse leave notwithstanding that the applicant has sustained a serious injury. In most cases a court entertaining an application under s.135A(4)(b) will not stay to consider the application of s.135A(2). But if the court forms the view that the prospect of the applicant establishing at trial that the injury meets the criteria set out in either s.135A(2)(a) or (b) is absolutely hopeless, the court will be entitled in the exercise of its discretion to refuse to grant leave. His Honour formed that view on the basis that sub-s.(2) provides for the circumstances in which damages may be recovered; an applicant for leave under sub-s.(4)(b) has yet to reach the stage at which damages may be recovered.

8. Ashley, A.J.A., on the other hand, is of the opinion that in order to obtain leave under sub-s.(4) an applicant must establish that he or she sustained a serious injury and that injury satisfied the criteria contained in either or both paragraphs of sub-s.(2), for "the injury" referred to in sub-s.(4) is an injury meeting the description of one or both of the paragraphs of sub-s.(2).

11. The construction favoured by Ashley, A.J.A. has the advantage that the trial of the substantive action can proceed free from the complication of considering and determining the effect of the qualifications and restrictions imposed upon common law proceedings by the Act. The construction avoids the possibility that the plaintiff at trial may fail to establish the existence of an injury conforming to sub-s.(2) despite having earlier satisfied a judge that he or she had sustained a serious injury. On the other hand, if the judge determining whether to grant leave to bring proceedings is required to investigate and decide issues other than the nature and extent of the injury, an application which should be straightforward and quickly determined may become complex and drawn out, thereby exacerbating an unsatisfactory state of affairs.[1]

14. In my opinion the jurisdiction conferred upon the court by sub-s.(4)(b) is limited to determining whether an applicant has sustained compensable injury which is a serious injury within the meaning of sub-s.(19). That is all the Victorian WorkCover Authority or a self-insurer can determine under sub-s.(4)(a), and in my view sub-s.(6) similarly defines the power of the court acting under sub-s.(4)(b), save only that the court may, in an appropriate case, determine whether litigation of the claim is futile. I do not think that sub-s.(6) is to be construed as if it provided that the court must not grant leave unless it is satisfied that the injury is a serious injury and the applicant satisfies the criteria in either or both paragraphs of sub-s.(2). If a plaintiff fails at trial because he or she cannot bring the case within sub-s.(2), the result is not inconsistent with an earlier determination by a judge that the plaintiff sustained a serious injury, for sub-s.(2) adds requirements which are not found in sub-s.(19); the same issue will not have been determined afresh.

17. For the reasons stated by Chernov, J.A. I am of the opinion that the appeal should be dismissed.

23. The appellant, Alcoa of Australia Ltd., appeals by leave[2] against the decision of a County Court judge, given on 28 June 2002, that the respondent have leave, pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act"), to bring proceedings for the recovery of common law damages against the appellant in respect of an injury that he suffered while in its employ. His Honour made the order on an originating motion that was instituted by the respondent on 10 January 2001 by which he sought the above leave on the basis that the injury was a "serious injury" within the meaning of the Act. As will be explained in more detail later, the appellant's principal case on appeal was that his Honour erred in granting the respondent leave to bring the proceedings because he failed to make a finding that the respondent had satisfied the precondition in s.135A(2) for the grant of such leave. It was also said on appeal that his Honour's ruling that the appellant was not permitted to show a surveillance video film to the respondent during his cross-examination amounted to a denial of procedural fairness with the result that the proceeding had miscarried.

27. The circumstances giving rise to the respondent's application were these. The respondent, who is now aged 52, lived in Geelong during his formative years and left school at the age of 14. Thereafter he worked, throughout Australia, in various physically demanding occupations. Eventually he returned to Geelong and, in 1980, commenced work with the appellant at its Point Henry Aluminium Smelter as an operator in its ingot mill and continued in that job for approximately 15 years. In about 1989 he was diagnosed by his general practitioner, Dr. Galbraith, as suffering from asthma which was said to have arisen from his work environment. This illness became progressively worse in its intensity and debilitating effect and eventually, in about mid-1995, it became apparent that the respondent was permanently incapacitated by reason of the asthma and, on 3 July 1995, he accepted a voluntary retrenchment package and ceased his employment with the appellant.

30. The respondent's case below was that the injury that he suffered at work, as a consequence of being exposed to hazardous gases and fumes, was asthma which was aggravated by the work conditions, particularly after 1992, and that this injury manifested itself as a serious long term impairment of a body function in about mid-1995. He explained that a number of his work activities involved his inhaling, over a prolonged period, a significant amount of hazardous gases and fumes from various chemicals involved in the smelting process including aluminium sulphate, ammonium sulphate and phosphene gas. Although he was supplied with a paper mask to filter the gases that he breathed, the respondent said that, in reality, they offered no protection. In approximately 1997 the appellant introduced racal helmets, which fed filtered air to the respondent, but the respondent claimed that they did not prevent his inhalation of a significant amount of those gases. The evidence before his Honour fell into two broad parts. One category, consisting of affidavits sworn by the respondent, several of his work colleagues and a supervisor employed by the appellant, related to the respondent's working conditions. The respondent's affidavits also dealt with his illness and its consequences. The other category comprised medical reports filed on behalf of the parties. As is common in proceedings of this nature, the only witness who gave oral evidence and was cross-examined was the respondent.

34. I now turn to highlight in more detail the facts that were either common ground or were found by his Honour. First, his Honour was satisfied that, contrary to the appellant's assertions, the respondent had not suffered from asthma before he commenced work for the appellant. Next, it is plain enough on the evidence - and it seems to have been common ground - that the respondent commenced exhibiting symptoms of asthma, in approximately the mid-1980's, such as shortness of breath and wheezing when performing heavy work and that, as time went by, he found it increasingly difficult to complete his work due to his respiratory problems so much so that he was often forced to stop work in order to catch his breath and to cough. Eventually, as I have said, in 1989, his treating doctor diagnosed the respondent as an asthma sufferer and as a consequence he was prescribed medication. Notwithstanding that his condition deteriorated, the respondent remained at work, although, by the early 1990's, his inability to carry out all of the heavy work required of him meant that an increasing proportion of it was done on his behalf by his work colleagues. Thus, the respondent, in addition to becoming increasingly debilitated as a result of his illness, had also suffered depression by reason of his inability to carry out his workload and the realisation that he needed to rely on his colleagues "to carry him". Eventually, in June 1995, he was referred to a respiratory physician, Dr. Cailes, who told him that his asthma was related to his employment and that he had reached a stage where he should leave that environment.

37. His Honour plainly accepted Dr. Galbraith's evidence that, between 1993 and 1995, the respondent's asthma was exacerbated and became severe and unstable and that, according to the appellant's doctor, Dr. Fisher, the respondent's lung function had become, during this period, "very variable" notwithstanding that he took regular medication to control the symptoms. The evidence of Dr. Trembath, who was effectively called by the appellant, was to a like effect. By 1995 the respondent's medication increased to the use of a ventolin puffer, taken as required, ventolin in a pump system inhaled approximately every four hours, an Atrovent puffer for use as required, Prednisolone, and also using the Nebules system and finally Flixotide - two puffs twice per day or an increased dosage in accordance with symptoms. The respondent continued on this heavy regime of medication over a period of two to three years after ceasing employment with the appellant but after that period his asthma stabilised and he was able better to control it with medication, although he remained incapable of performing heavy work as a result of his asthmatic condition. Apart from a brief period working as a yardsman for about five hours a week, spread over two mornings up until December 2000, the respondent has remained unemployed. The respondent also claimed that his condition had a detrimental impact on his lifestyle and general enjoyment of life. He said that on some days he had difficulty leaving his home and was unable to walk any distance, that he could no longer participate to the extent that he had in many of his former outdoor and social activities and had to abandon his hobby of showing bull terriers due to the physical effort involved, as well as the financial expense.

40. I have already mentioned that in early June 1995 the respondent was referred to Dr. Cailes, a respiratory physician, who considered that the respondent's asthma gave rise to a permanent disability and that he should cease working in the appellant's mill. The learned primary judge accepted the evidence of Drs. Cailes, Hunt and Trembath to the effect that the respondent's disability and incapacity were permanent and rejected that of Dr. Brand who reported, on behalf of the appellant, in late 2000 and early 2001, that the respondent's incapacity for employment and general wellbeing" would not be any different if he had not worked for [the appellant]". His Honour also preferred the evidence of the respondent and his work colleagues to that of the appellant's supervisor in respect of his work environment. The judge was clearly satisfied that the respondent's working conditions were conducive to the development of the respiratory ailments.

- the respondent suffered from asthma due to his employment conditions

- there was a continuing aggravation of the injury with a corresponding debilitation of the respondent's physical condition, particularly after 1992, when he could no longer independently carry out the whole of his physically demanding workload

- it was not until approximately mid-1995 that it was recognised that the respondent was permanently incapacitated due to asthma.

After referring to authorities which his Honour said were material to his task, namely, Humphries v. Poljak[3], Petkovski v. Galletti[4], and State of Victoria v. Glover[5], his Honour concluded that he was satisfied that the respondent had established "a serious injury to the function of his chest by reason of his diminished lung capacity and breathing incapacity whilst in the employ of the defendant." Accordingly, the judge said, he "certified" that the respondent had suffered a serious injury and gave him leave to commence the proposed proceedings.

51. Before us, Mr. Rose for the appellant attacked his Honour's decision on two bases. First, counsel said that his Honour failed to make the findings necessary to enable him to come to the conclusion that the injury fell within s.135A(2) of the Act and, therefore, even if the injury was a serious injury, he could not have properly granted the respondent leave to bring the proposed proceedings. More particularly, it was argued under this head that the judge failed to make a finding that the injury fell into either paragraph (a) or (b) of s.135A(2) and that, in any event, such a finding would not have been open on the evidence. Mr. Rose also contended that his Honour's failure to identify and make appropriate findings on whether the injury fell within s.135A(2) and his failure to identify the nature of the serious injury in respect of which leave was granted, meant that his Honour's reasons were inadequate and that this vitiated his decision. Finally, it was submitted under cover of this complaint that his Honour failed to make the necessary comparison between the state of the respondent's asthma before and after 1 December 1992 so as to ascertain the degree of its aggravation for the purpose of determining whether it constituted a "serious injury".

54. The second basis on which it was sought to upset his Honour's decision was that his Honour's ruling that the appellant was not permitted to show the respondents the surveillance video to which I have referred amounted to a denial to it of procedural fairness and caused the trial to miscarry.

58. Before dealing with the appellant's complaints it is necessary to refer briefly to the relevant scheme of the legislation which is, in the main, contained in the provisions that were introduced into the Act by the 1992 and the 1994 amendments, the history of which was examined by this Court in State of Victoria v. Collins[6] and Rizza v. Fluor Daniel GTI (Australia) Pty. Ltd.; Inline Courier Systems Pty. Ltd. v. Walker[7]. Until December 1992 an injured worker was entitled under the Act to recover from a negligent employer non-pecuniary damages (limited to the amount prescribed by s.135) in respect of a work related injury, in addition to receiving, in respect of it, the payments specified under the Act. So far as is relevant, the amendments to the Act that were made by the Accident Compensation (WorkCover) Act 1992, which took effect on 1 December 1992, effectively limited the number of common law claims for damages that could thereafter be brought in respect of work related injuries but increased the amount of damages that could be recovered in such proceedings. Thus, s.135A(1) effectively said that an employee could not recover damages in respect of a compensable work place injury except "in accordance with this section". Sub-section (2) provided 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 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."

Furthermore, sub-s.(4) essentially prohibited an injured worker from bringing proceedings for common law damages in respect of a work related injury unless the Victorian Work Cover Authority or the self-insurer was satisfied that the injury was a serious injury, or leave to bring such proceedings had been obtained from a court pursuant to sub-s.(4)(b). A condition precedent to the granting of such leave by the court - imposed by sub-s.(6) - was that it be satisfied that the injury was a "serious injury" as defined by s.135A(19). It is also necessary to mention s.135B(2) which was inserted into the Act by the Accident Compensation (Amendment) Act 1994. This provision effectively prohibited an injured worker from bringing proceedings for common law damages after 30 June 1994 in respect of an injury that was sustained in the work place before 1 December 1992. This restriction, however, was ameliorated by an amendment made to that section by Act No.26 of 2000[8] So far as is relevant, the new sub-s.(1AA) of s.135B provided that the prohibiting effect of s.135B(2) would have no operation in respect of proceedings in relation to a pre-1 December 1992 injury to which s.135A(2)(b) otherwise applied. Thus, a worker who suffered a relevant work place injury before 1 December 1992 could only bring a proceeding in relation to it for common law damages after 30 June 1994 if the serious injury incapacity arising from it did not become known until after 1 December 1992.

64. In order to determine if his Honour erred as is contended for by the appellant it is necessary to have regard to the nature of the application that was before the court and the matters that were required to be determined upon that application. As I have said, what was before his Honour was the respondent's application for leave to bring the proposed proceedings and, on its face, it raised as a key issue the question whether the injury was productive of a serious long term impairment or loss of a body function.[9] The onus was on the respondent to establish that matter on the balance of probabilities.[10] That this was the respondent's case was made apparent not only by the originating process, but also by his counsel's opening to the court. Although the appellant contested this claim before his Honour, its primary case was, as I have said, that even if the injury was a serious injury, it did not fall within s.135A(2). Counsel argued that the injury did not fall into either limb of the sub-section because the respondent's asthma was contracted before 1 December 1992 and he well knew of the serious injury incapacity arising from it prior to that date. Thus, it was claimed, the injury could not fall into either paragraph (a) or (b) of s.135A(2) and consequently, the respondent was not entitled to recover damages. It followed, so it was said, that the court should not grant the respondent the leave that he sought.

68. As Phillips, J.A. said in Hanrahan v. Davis[11], where a prospective plaintiff seeks leave under sub.s (4)(b) of the Act to bring proceedings he or she is then not at the stage at which damages may be "recovered" as is contemplated by sub-s.(2) so that the prohibition implicit in the latter provision does not, without more, then fall for consideration. Thus, in this case, it was not incumbent on the respondent to demonstrate, as part of his primary case before his Honour, that the injury fell within s.135A(2); it was a matter that he will have to establish at trial in the event that leave is obtained. But the appellant contended before his Honour that, because the respondent's injury did not fall within s.135A(2), he was not entitled to recover damages in respect of it and, therefore, the leave sought should be refused even if the court were to conclude that the injury was a serious injury. This raises the question whether, on such an application, a court has a discretion not to give leave even though it is satisfied that the injury is a serious injury. In my view a plain reading of sub-s.(4)(b) clearly points to the conclusion that such a discretion is reposed in the court. The provision effectively says that proceedings for damages in respect of a work related injury may not be brought without the court's leave. It does not say that, once the court is satisfied that the injury is "serious", the prohibition against bringing proceedings for damages is lifted, or that in those circumstances the court must grant leave. Consequently, it seems to me, sub-s.(4)(b) gives the court a discretion to decide whether to withhold leave even where it considers the serious injury issue has been resolved in favour of the appellant. Had it been the intention of Parliament that the court should not have such a discretion, the provision would have effectively said that proceedings for damages could not be brought in respect of a work related injury unless "a court .... is satisfied that the injury is a serious injury". And it is in the exercise of that discretion that the court may refuse to grant leave where it is satisfied that the injury does not fall within s.135A(2) even if it is persuaded that it is a serious injury.

71. Where a respondent to a sub-s.(4)(b) application seeks to resist the application on the basis that the injury does not fall within s.135A(2), the evidentiary burden of making out that case falls on it.[12] The real question is, however, to what standard must the respondent prove its case on that issue - is it sufficient if it establishes it on the balance of probabilities or must it go further and effectively satisfy the court, much like a defendant seeking summary judgment, that the applicant's prospects of establishing that the injury falls within s.135A(2) is "absolutely hopeless"[13] or "bound to fail"[14]. I consider that the better view is that the latter situation applies. It seems to me that a respondent who seeks to have the court deny an applicant leave to bring proceedings for damages in respect of a serious injury on the above basis is in a similar position to that of a defendant against whom an action for damages has been brought by the worker and who seeks summary judgment on the ground that the plaintiff is not entitled to recover damages because the injury does not fall within s.135A(2) or because, as was the case in Rizza, that proceeding comes within the ambit of s.135B(2) of the Act. In each situation the prospective or actual action is sought to be brought to an end otherwise than on its merits and it is well established that, ordinarily, before the court allows that to take place, it must be satisfied that the position of the prospective or actual plaintiff on such issues is hopeless. Thus, where the respondent to a sub-s.(4)(b) application claims that the injury does not fall within s.135A(2) and, therefore, the application should fail on that ground, the court should ordinarily grant the application if it is satisfied that the injury is "serious" and leave the resolution of the s.135A(2) question for trial, unless it is persuaded that the applicant is bound to fail on that issue. If it were otherwise, that is to say, if an applicant had to establish, on the balance of probabilities, as part of his or her case for leave to bring proceedings, that the injury was not only a serious injury but also that it fell within s.135A(2), or if it was sufficient for a respondent to such an application to establish only on the balance of probabilities that the injury did not fall within that provision, the character of a sub-s.(4)(b) proceeding would materially change from its limited nature as was recognised by Brooking, J. in Petkovski v. Galletti.[15]

74. But on whatever basis this issue had to be determined by the judge in this case I consider that it was well open to him to conclude, as he did, that the appellant failed to persuade him that the injury did not fall within s.135A(2). I have already mentioned that the appellant's case below was that the injury did not fall into either limb of s.135A(2) and consequently, it bore the evidentiary burden of making out that case. In my view, his Honour's reasons, when read in the context of the matters that were left for his Honour to resolve and the parties' submissions on that issue, make it plain that he was of the view that the appellant had failed to discharge that onus. It is true that his Honour did not say that in terms, but that this was his conclusion is obvious given that he granted the respondent leave to bring the proposed proceedings, something he was unlikely to have done if he had been persuaded by the appellant's case. It could not be sensibly said that this very experienced judge simply overlooked the appellant's claim that the injury did not fall into s.135A(2), particularly given that the issue was thoroughly analysed by experienced, senior counsel during their final submissions. Moreover, the judge's reasons, particularly his acceptance of the evidence that the injury progressively worsened as well as its debilitating effect on the respondent at the relevant time, show that his Honour appreciated that he had to be satisfied as to when the injury arose and when its impairment was manifested for the purposes of s.135A(2). Given his Honour's findings as to the injury, the circumstances in which it arose and its ramifications for the respondent, it was clearly open to him to conclude not only that he was unpersuaded by the appellant's case on this issue but that, on the balance of probabilities, the injury fell within the second limb of s.135A(2), namely, that it arose before 1992 but did not manifest itself as a serious injury incapacity[16] until approximately mid-1995. That would be sufficient to dispose of this aspect of the appeal, but for completeness, I should say that, on the evidence, it was similarly open to his Honour to find, in the alternative, that the injury fell within paragraph (a) of s.135A(2) because, although the respondent contracted asthma before 1 December 1992, it was only after that date that his condition became aggravated, to the extent of impeding his capacity to work and, ultimately, his permanent incapacitation.

77. In those circumstances, contrary to the appellant's submissions, there was no obligation on his Honour to make a finding into which particular limb of s.135A(2) the injury fell. It was sufficient for the purposes of resolving the matter before him that he considered that he was unpersuaded by the appellant's contention that the injury did not fall within that provision. It was submitted for the appellant that his Honour's failure to make the finding contended for had the effect of prejudicing its position at any possible trial in the sense that, absent such a finding, it would not know what case it had to meet on this issue. In my view, this argument has no merit. His Honour's decision that he was not persuaded by the appellant on the s.135A(2) question did not create an issue estoppel as to whether the injury came within that provision for the purposes of the proposed proceedings. As I have said, it will be necessary for the respondent to prove that matter at trial on the balance of probabilities and the appellant's relevant position in that regard will be protected by the procedural rules that require a plaintiff fully to disclose its case.

81. I would also reject the appellant's argument that his Honour failed to give adequate reasons for his conclusion. It may be accepted that his Honour should have provided brief reasons for his rejection of the appellant's contention that the injury did not fall within s.135A(2), if only to appraise the parties, the appellate court and those concerned with this area of the law, of the basis on which this condition was reached and in order to further judicial accountability.[17] But, as Buchanan, J.A. pointed out in Perkins v. County Court of Victoria[18], there is no absolute duty on a judicial officer to give reasons such that mere failure to provide them vitiates the decision. It is essentially a question whether the parties and the appeal court can discern whether the judge reached his conclusion by any, and if so what, process of reasoning in order that a determination can be made as to the correctness or otherwise of the reasoning process and conclusion. In my view his Honour's reasoning process is amply disclosed in his findings, to which I have referred, and his conclusion. In my view, his Honour's judgment enables the parties and this Court to understand the basis on which he decided that the injury was a serious injury and his rejection of the appellant's case that the injury did not fall into s.135A(2).

85. I also consider that there is no substance in the appellant's argument that his Honour should have undertaken a comparison of the extent of the respondent's asthma before and after 1 December 1992 in order to determine if its aggravation constituted a serious injury. The respondent's case before his Honour was not based on the contention that the serious injury was constituted by an aggravation of a pre-existing injury. Rather, his case was, as I have said, that there was one injury, namely, the contraction of asthma and its aggravation which manifested itself as a serious injury in approximately mid-1995. Hence, there was no requirement for the judge to make the comparison contended for by the appellant.

89. I now turn to consider the second basis on which the appellant challenged his Honour's decision, namely, that his Honour's ruling that the appellant's counsel was not entitled to show the surveillance video film to the respondent during his cross-examination amounted to a denial to it of procedural fairness, and thus caused the trial to miscarry. The context in which this ruling was made is as follows. In his evidence in chief the respondent said that he had not worked since the year 2000. During his cross-examination it was put to him that, on 27 July 2001, he had in fact worked at a particular place and, when he denied this, the appellant's counsel sought to screen a video film which, he said, showed the respondent worked as was put to him. The respondent's counsel objected to this course on the basis that the existence of the film had not been disclosed, as it should have been, in the index to the common Court Book or by way of discovery and that he was, therefore, taken by surprise. As things transpired, this complaint resolved itself in the sense that Mr. Rush for the respondent was given the opportunity of viewing the film overnight, before this aspect of the respondent's cross-examination continued. On the following day Mr. Rush informed his Honour that he would persist with his objection to the appellant's proposed use of the video film unless it supplied the dates on which the respondent was kept under surveillance or made the maker of the film available for cross-examination**.** Mr. Rush contended that he should be given the opportunity to put the content of the film in context by having access to the surveillance dates or by cross-examining the film maker. Mr. Rose, however, refused to undertake to do either of those things and, in the circumstances, his Honour ruled that the appellant could not show the video film to the respondent.

92. It was submitted for the appellant that the ruling was made on a false premise, namely, that the appellant failed to make discovery and to comply with the court's earlier interlocutory order as to the filing of the index of documents. In fact, counsel submitted, there was no such breach on the part of the appellant. It was said that no order for discovery was made in the proceeding so that there was no obligation on the appellant to discover the video and that the interlocutory order was not breached because the film was made after the date by which the index had to be filed. Assuming for present purposes that the appellant is correct in these contentions, I consider that a fair reading of the transcript makes it apparent that his Honour ruled as he did because he considered that it would not be just for the film to be shown to the respondent without affording his counsel the opportunity of putting its contents in context by cross-examining the maker of the film or by reference to the surveillance dates. It is true that, when the issue was first raised, his Honour was critical of the appellant for not having previously disclosed the existence of the film to the respondent contrary, said his Honour, to the interlocutory order and the obligation to make discovery. But after the video was seen by the respondent during the overnight adjournment, as I have mentioned, much of the debate before his Honour centred on whether the appellant should produce the surveillance dates or call the maker of the film so that the respondent would have the opportunity of putting the content of the film in context and it was in those circumstances that the judge gave his ruling. Essentially, as I have said, it was made because the judge recognised that it would be unfair to the respondent if the video film was shown to him in cross-examination and the appellant effectively deprived his counsel of the opportunity to place the content of the film in context.

96. It is apparent that the film was relevant and, therefore, admissible. But notwithstanding this, his Honour had the discretion to make the order he did even if it is assumed that the film could have been proved otherwise than by calling its maker. A trial judge has the discretionary power to regulate the manner in which evidence is given so as to ensure that the issues before the court are investigated not only fully, but fairly. That a judge has such a discretion was confirmed by Barry, J. in Mooney v. James[19] where the principal issue before the court was whether it had the discretionary power to refuse counsel the right to put leading questions in cross-examination to a witness who was partisan towards the cross-examining party. After an analysis of the relevant authorities, his Honour concluded that the trial judge had the power to control the manner in which evidence was elicited in order to ensure fairness and, on that basis, to preclude cross-examining counsel from putting leading questions to a witness (or to permit counsel to put leading questions to a witness during examination in chief). More particularly, his Honour said[20]

"... [I]t is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly. ... [T]he existence of this duty clothes the Judge with all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited."[21]

Consequently, as I have said, I consider that his Honour had the discretion to preclude the appellant from screening the film to the respondent and the remaining question is whether there was relevant error in its exercise.

102. In my view no such error has been demonstrated. It was well open to his Honour to conclude that it would be unfair to the respondent if the film were shown to him in cross-examination in circumstances where the appellant effectively denied his counsel the opportunity of putting its content in context. After all, a film is only a snap shot of a particular activity, the extent or fullness of which may be determined by the film maker. Thus, for example, the film here may not have recorded, or may have had deleted from it, that the respondent was in apparent agony when he was purporting to work or that he had to interrupt his activities as depicted in the film due to pain or exhaustion that was brought on by the task. Such omissions could have been brought out in cross-examination of the film maker by the respondent's counsel. Similarly, the surveillance dates could have been used to put the extent of any work that may have been undertaken by the respondent in proper context. Consequently it is apparent that there was a proper basis for the exercise of his Honour's discretion effectively to exclude the film from evidence.

106. Mr. Rose contended that his Honour's ruling was contrary to this Court's decision in Davies. In my view, however, Mr. Rush's submission that Davies has nothing to do with this case should be accepted. Davies was essentially concerned with the exercise by the trial judge of a judicial discretion for an extraneous purpose. That case, not unlike the present, dealt with an application for leave to bring a common law proceeding for damages in respect of a work-related injury. An interlocutory order had been made in that case requiring the parties to file their respective lists of documents by a certain date**.** The respondent was a few days late in complying with that order and, at the commencement of the trial, sought an extension of time (retrospectively) for the filing of its list of documents. As a condition of granting such an extension, the judge imposed the requirement that the respondent make its surveillance video available to the appellant. Batt, J.A.[22] considered[23] that this requirement was imposed improperly for an extraneous purpose, namely, to take a step which his Honour considered would be conducive to a fair trial but which was quite unrelated to the respondent being three days late in complying with the interlocutory order. This purpose could not have been achieved, said his Honour, if the respondent had not been out of time. Thus, it was held, there had been a clear miscarriage of discretion. Here, on the other hand, the judge's ruling was not made in order to achieve an extraneous purpose; it was made in the course of the trial in order to secure fairness in its conduct which was well within the judge's discretionary power as I have explained.

Section 55(1) of the Evidence Act Irrelevant - respondent not "maker of statement"

110. It was also argued for the appellant before us (but, it seems, not below) that it was the respondent, and not the maker of the film, who was the "maker of the statement" for the purposes of s.55(1)(a) of the Evidence Act 1958 and that, therefore, the film could have been tendered under that section without the need to call the maker of the film provided that the respondent accepted that it was he who was depicted in the film. But that argument, even if correct, goes only to the admissibility of the video film and does not detract from the discretion which the judge had to rule as he did in the interests of justice. In any event, even if the video film was admissible under s.55(1)(a) of the Evidence Act as was contended for by Mr. Rose, the judge had a discretion to exclude it under s.55(9) in the interests of justice. In the circumstances, therefore, it is, strictly, not necessary to decide whether the respondent was the maker of the statement as was contended for by Mr. Rose. For the purposes of completeness, however, I should say that, although a film is a "document" for the purposes of the Evidence Act[24], I consider that the "maker of the statement" for the purposes of s.55(1)(a) of the Evidence Act was the person who shot the footage and not the respondent. So far as is relevant, the sub-section provides that, in a civil proceeding, where direct oral evidence of a fact would be admissible, a statement contained in a document which tends to establish that fact will be admissible provided that the maker of the statement had at the time of making the statement personal knowledge of the matters dealt with by it, and is called as a witness in the proceeding. The Act does not define "maker of the statement" but I consider that, in the context of this case, the video film can be regarded as being a substitute for the evidence that its maker could have given as to the physical work the respondent actually did on the day in question. In the circumstances, I consider that it was the person who made the film who was the "maker of the statement" for the purposes of this provision and who had to be called if the appellant was to avail itself of the benefit of the section. Such a construction of the provision seems to be consistent with what is said on this issue in Halsbury's Laws of Australia[25], namely, that the "maker of the statement" is "the person who records the statement from information supplied by another and not that other". A like approach was adopted by Zeeman, J. in R. v. Maloney[26], where his Honour accepted that, in the context of the case before him, it was the maker of the video film, and not the subject of it, who was the "maker of the statement" for the purpose of a like statutory provision. In that case the Crown sought to tender a video-tape recording of an interview with a Crown witness under a Tasmanian statute similar to s.55(1) of the Evidence Act except that the provision in question applied to criminal proceedings and dealt with a "representation made in a document" rather than with a "statement made in a document". The video of a police interview with a Crown witness was rendered inadmissible, however, because the person operating the video-recorder did not have personal knowledge of the matters that were discussed and, in the circumstances, he could not give direct oral evidence as to what passed between the parties because it would plainly have been hearsay. His Honour

rejected the Crown's argument that it was the person who was the subject of the film who was the "maker of the representation" and said that "if anyone makes a representation by means of a video-recording of the present type it is the person who operates the machine by means of which the recording is made." Similarly, in R. v. England[27], where the Crown sought to tender an unsigned record of interview with the accused pursuant to the above Tasmanian statute, Chambers, J. accepted[28] that the record of interview could be admitted on the basis that the "maker of the representation" was the police officer who created the record.

114. Consequently, as I have said, I consider that there is no merit in the appellant's claim that the video film could have been properly admitted pursuant to s.55(1) of the Evidence Act without the requirement that the maker of it be called as a witness.

118. It is apparent from what I have said that I consider that the trial did not miscarry because of his Honour's impugned ruling.

121. In the circumstances, I would dismiss the appeal.

126. I have had the advantage of reading the Reasons of Chernov JA in draft. I agree with his Honour that the appeal should be dismissed. I agree also with his Honour's analysis of the position concerning the video surveillance film.

129. I have reached, however, a conclusion concerning the operation of s. 135A which in some respects differs from that reached by his Honour. I consider that it is for the applicant in an application brought under s. 135A(4)(b) of the Accident Compensation Act 1985 ("the Act") to allege and satisfy a court that he or she has sustained a serious injury which conforms with one or both of s. 135A(2)(a)(b); that matter being determined once and for all if and when leave is granted to bring a proceeding.

What must be alleged and established on a s. 135A(4)(b) application?

133. The view of s 135 A taken by Chernov JA seems to mean that it is enough on a s 135 A(4)(b) application for the applicant to establish that he or she has suffered a compensable injury which is a serious injury; implicitly, a compensable injury which arose out of or in the course of employment before 12 November 1997 and which does not fall within the descriptions in s 135 A (1)(a)(i) or (ii), (b)(i). Then it is for the applicant, as the plaintiff in a substantive proceeding, to satisfy the requirements of one or other or both of subsections 2 (a) and (b).

136. It that was the regime established by the section, it would probably have a practical impact in relatively few cases. For most often the only question will be whether the injury was serious injury; not whether it was a serious injury falling within a particular paragraph of subs (2). In such cases it cannot be imagined that it could be a real issue at trial whether the plaintiff had brought his or her case within subs 2(a) or (b).

139. In some instances, however, the real debate between the parties - whenever it falls to be agitated and determined - will not be whether a worker suffered compensable injury constituting serious injury; but rather whether the worker suffered compensable and serious injury which fitted within subs 2(a) and/or (b). There may have been traumatic injury before 1 December 1992, with argument when the incapacity arising from the injury became known. Again, the worker may allege that injury arose out of employment before and after 1 December 1992 - in which case the root question will be whether injury constituting serious injury was sustained before that date, after that date, or both.

142. The conclusion reached by Chernov JA has the result that, in cases of the type just described, the prospect arises as a matter of reality that the worker will have to establish serious injury twice over: on a subs (4)(b) application and then at trial. Only on the latter occasion will the need arise to establish serious injury conforming with subs (2)(a) and/or (b). So the prospect arises of the plaintiff not establishing a pertinent serious injury at trial despite a determination of serious injury having earlier been made in his or her favour. To give the point practical content, if on a sub-s. (4)(b) application it is enough for an applicant to allege and establish that he or she has suffered compensable injury which is serious injury, then leave might be granted to bring a proceeding in respect of a compensable injury arising out of employment before and after 1 December 1992. Yet at trial the plaintiff would be put to establish, in order to recover damages, that he or she had suffered one or more serious injuries - that is, conforming with subs (2)(a) and/or (b) - each having a different content to the injury in respect of which leave was granted.

145. I cannot accept that s. 135A should be read to leave open the prospect that the question whether a worker suffered serious injury might be litigated twice over. In my view that consequence is avoided by focussing upon what is comprehended by "the injury" in s. 135A, particularly in sub-s. (4)(b). I consider that "the injury" in respect of which application is made for leave to bring a proceeding must be an injury as described in one or both of paragraph (a) or (b) of s. 135A(2); that it is for an applicant to allege and sufficiently establish that he or she has suffered an injury which is a serious injury conforming with either or both of sub-s. (2)(a)(b). It follows that a court's satisfaction that "the injury" is a serious injury will necessarily carry with it the conclusion that the serious injury meets the description or descriptions alleged. Then neither plaintiff or defendant will face the prospect of re-litigating the serious injury question; and the parameters will be established within which liability and possibly other issues arising on the substantive proceeding must be determined.

148. In my opinion neither the language of s. 135A nor Hanrahan v Davis[29] stand in the way of those conclusions. Sub-section (2) is couched in terms of recovery of damages, whereas sub-s. (4) refers to bringing proceedings for the recovery of damages. That is a distinction which appears elsewhere in the section; see, for example, sub-s. (1)(a) and (b), (2A), (2DE). But of the several sub-sections which refer to recovery of damages, sub-s. (2) alone visits the question of serious injury. It does so not in the context of disentitlement to recovery - compare sub-s. (1)(a) and (b); and see also various references in the section to damages which must not be awarded - thus sub-s. (7), (10) - but rather in the language of qualification to recover. The particular issue pertinent to qualification - that is, whether serious injury has been established - arises in the case of a sub-s. (4)(b) application antecedent to the commencement of a substantive proceeding. That situation may be compared with a proceeding under Part III of the Wrongs Act, where - see sub-s. (8) - damages are recoverable without any antecedent application. In all the latter case, no doubt, subject to any admissions by the defendant it will be a necessary part of the proofs at trial that the circumstances of the case meet the criteria of Part III. In all the circumstances described, I see every reason why the qualifying consideration in the case of injury should be read as falling for allegation and determination on the application.

151. In Hanrahan, Phillips JA said or implied at various points in his judgment that a plaintiff's obligation to satisfy sub-s. (2) arises at trial[30]. But in my opinion it is necessary to keep very clearly in mind the particular issues which arose in that case. The plaintiff had commenced a proceeding for damages without an impairment determination having been made; and without having made any application for leave to bring a proceeding under sub-s. (4). The question was whether that course was permissible as s. 135A then stood. There were conflicting decisions of single judges on that question. It was not in doubt that, if the plaintiff's action had been correctly brought, he must satisfy sub-s. (2). That could only be at trial. Moreover, there was no debate that, if he was to satisfy sub-s. (2), it would be by the operation of paragraph (a)[31]. As JD Phillips JA pointed out, the impediment to the plaintiff's proceeding, pleaded in the defence, was "not cast in terms of sub-s. (2) at all.[32] Whilst in resolving the issue before the court his Honour addressed sub-s. (2) it would be going too far, I think, to regard his Honour's observations as resolving the present issue.[33]

Section 135A(2)

155. The "injury" for the purposes of sub-s. (4)(b), as with "the injury" described in the introductory words of sub-s. (2), and the "injury" described in sub-s. (1), is clearly an injury which is[34] compensable under the Act. Most often, compensability will arise by operation of s. 82(1), considered in light of the definition of "injury" in s. 5: and, in many cases,[35] the matters set out in s. 5(1B). Sometimes compensability will arise under s. 86. It may be the case that the line of demarcation marking the boundaries of operation of ss. 82 and 86 is not as clear-cut as was the case under the Workers Compensation Act 1958 - as to which see ss. 5(1) and 12(1) of that Act. But that is another matter.

158. The "injury" to which sub-s. (2)(a) and (b) refer is, in short, a compensable injury. Bearing in mind the fact that, subject to the operation of sub-s. (3), "injury" becomes "serious injury" for the purposes of the Act only if it is productive of any one of the consequences set out in s. 135A(19), on an application under sub-s. (4)(b), and focussing upon the case pursued for the applicant, what must first be done is to determine whether the worker suffered any and what compensable injury. Then, in the case of sub-paragraph (a), on the face of it these matters must be sufficiently made out:

* Second, that the injury arose on or after 1 December 1992.

* Third, that employment of the nature in which the worker engaged was a significant contributing factor to the injury.

In the case of sub-paragraph (b) these matters must be made out:

* Second, that the injury arose before 1 December 1992.

* Third, that the incapacity arising from the injury did not become known until 1 December 1992 or later.

168. Reference to "the injury" arising before or after 1 December 1992 means, no doubt, that it must be shown that the compensable injury upon which reliance is placed was caused to the worker before or after that day.

171. There is a point of distinction between sub-paragraphs (a) and (b) other than that they relate to compensable injuries occurring at different times. Sub-paragraph (a), contrast sub-paragraph (b), says nothing about incapacity arising from the injury. Sub-paragraph (b), contrast sub-paragraph (a), embodies the requirement that employment of the nature in which the worker engaged was a significant contributing factor to the injury.

174. The operation of sub-paragraph (b) was explained in State of Victoria v Collins by Winneke P (with whom Brooking and Chernov JJA agreed) as follows:

"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-s. (19).[36]

"...the incapacity referred to in s. 135A(2)(a) (sic) 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'."[37]

180. Concerning the particular requirement of sub-paragraph (a) to which I referred a few moments ago, there is, so far as I am aware, no authority in point. No submission was made in that connection. It is part of the language of s. 86 of the Act, which derives from s. 12 of the Workers Compensation Act 1958. Each of those sections pertains, though s. 86 less clearly, to what have always been called industrial diseases, a concept the practical breadth of which has extended over the course of years.[38] Provided the required circumstances are satisfied, the presence of a particular disease gives rise to an entitlement to compensation "as if the disease were an injury". Section 135A(2)(a), however, refers to "the injury", an expression the reach of which extends beyond diseases to which s. 86 applies.

183. The language of paragraph (a) is not entirely that of s. 86. That section embodies two concepts: first, that a disease is due to the nature of an employment; second, that employment of that nature was a significant contributing factor to the disease. Only the latter is imported into s. 135A(2)(a), viewed apart from the introductory words of the sub-section.

186. The nature of the former concept is well known. It involves inquiry into the connection between a disease and "the description of employment in virtue of its tendencies, incidents or characteristics".[39] "The employment" is not there restricted to the particular duties performed by a worker[40].

189. According to the old law - s. 12 of the Workers Compensation Act 1958 and its predecessors; and s. 86 of the Act in its initial form - a worker did not need to establish that his or her industrial disease in fact arose out of an employment. That this was the case under s. 86 in its original form was made clear, if it could have been doubted, in Accident Compensation Commission v Botezatu[41] The words "and if employment of that nature was a significant contributing factor", presumably intended to alter that situation, were introduced by Act 67 of 1992; and a repetitive and unnecessary reference in s. 86(a) was omitted by Act 50 of 1994. Section 135A(2) in its present form was also introduced by Act 67 of 1992.

192. It is noteworthy that the introductory portion of s. 135A(2) refers to "an injury arising out of, or in the course of, or due to the nature of, employment". Reference to injury "due to the nature of" employment is doubtless intended to pick up a s. 86 disease. Although the matter is not clear-cut, I think it is likely that in this circumstance lies the requirement in sub-s. (2)(a) that "employment of that nature [be] a significant contributing factor" to the injury.

195. Two matters stand in favour of such a conclusion; and one against. In favour, it may be said that the requirement fits naturally, in light of the language of s. 86, with injury "due to the nature of" employment. It may also be said that the notion of employment of a particular nature being a significant contributing factor to injury is singularly inapt in the case of s. 82 injuries. In the case of many injuries falling within that section it will have been established that the worker's employment was a significant contributing factor to the injury; and those cases in which there is no such requirement will be so-called injuries in the primary sense - most often an injury caused by specific trauma. Moreover, a traumatic injury, particularly, may have no connection with the "tendencies, incidents or characteristics" of an employment. I would be very reluctant to read s. 135A(2)(a) to mean that a traumatic injury sustained after 1 December 1992, resulting in serious injury, could not fall within s. 135A(2)(a) if it could not be said that the nature of the worker's employment was a significant contributing factor to the injury.

198. Against those matters, it may be said that the formula under discussion is found in paragraph (a) and not paragraph (b); yet it should be equally relevant in both situations. Given the force of that consideration, it nonetheless seems to me that the balance lies in favour of a conclusion that the words "if employment of that nature was a contributing factor" have application only in respect of injuries "due to the nature of employment". Properly, the opening words of paragraph (a) should lie within the introductory words of the sub-section - in which case they would apply both to paragraphs (a) and (b) in the case of injuries due to the nature of employment.

201. I turn to another aspect of s. 135A(2). Although paras (a) and (b) are expressed disjunctively, I do not doubt that an applicant may allege and establish that he or she suffered compensable injury transcending 1 December 1992 which satisfies both para (a) and para (b). The paragraphs are not necessary alternatives in such a case.

204. There is next a consequence of a successful application under sub-s. (4) to which I should direct attention. Leave is granted to bring proceedings "in respect of the injury". For reasons which I have indicated the injury will have been characterised - expressly in those few cases where it could be an issue - as an injury conforming with para (a) and/or (b) of sub-s. (2). What is the permissible content of a proceeding in respect of which leave is granted?

207. The phrase "in respect of" is understood to have a broad application, but one the reach of which may be cut down by the context in which it appears.[42] A worker, in consequence, would in my opinion certainly be able to claim damages for all the consequences of the serious injury; that would be so even if those consequences, discretely considered, might themselves constitute serious injury as defined by s. 135A(19) - as where a worker suffering serious injury constituted by an impairment of body function had developed in response to such injury a severe mental or behavioural disturbance.

210. Further, from the standpoint of the Act a worker who suffers multiple injuries in the one traumatic event is considered simply to have been caused injury arising out of or in the course of the employment. That is the injury in respect of which the worker will seek to recover damages. This Court has said that in such a case it is possible to aggregate such injuries in determining whether the worker suffered serious injury.[43]

213. Consider, then, the facts of this case. The respondent was exposed, as he claimed, to hazardous work conditions between 1980 and 1995. He suffered injury, as he claimed, throughout that period.[44] The injury was the contracting of asthma, and thereafter its aggravation. By mid-1995 the injury had defined itself as serious injury. As one measure of general incapacity, by that time he was unable to work.

216. Now, for the purposes of determining the compensability of injury, there would be no significance in the date 1 December 1992. For the purposes of s. 135A(2), however, an artificial distinction must be drawn between injury occurring before that date, and injury occurring thereafter. Extraordinary though it might seem, and improbable though such findings might be, the structure of the sub-section seems to mean that if a worker could not bring the circumstances of the case within one at least of paragraphs (a) and (b) he or she would have no right of action, even if it was clear beyond doubt that the totality of the injury was, by its consequences, serious injury.

219. There might be another consequence of s. 135A(2) in such a case. If, artificially split up, the injury constituting serious injury was held to fall only within one of paragraphs (a) and (b), it is arguable that "the injury" in respect of which the worker could claim damages would be thereby confined. Certainly the situation would be different to either of the classes of case in which there is no doubt that a worker may seek damages for injuries which are more or less distinct from the injury constituting the serious injury - as being "in respect of" that injury; which is not to say that it must yield a different outcome.

222. On a possible view of the operation of s. 135A(2), then, in a very few cases it could be very important to both worker and employer to know "the injury" which was held to constitute serious injury; for damages could be recovered in respect of that injury only. On that view, for example, if a court had decided in the present case that the respondent had established serious injury within s. 135A(2)(b), then whilst Mr McKenna could claim damages for all the consequences of his asthma which were attributable to his exposure up to 1 December 1992, he could not claim damages for the consequences of any aggravation of his asthma attributable to exposure thereafter. The converse would apply if the court had decided that he had established serious injury within para (a). Further, if the serious injury was determined to fall within para (a) it would, I think, be open to the respondent in his common law action to rely upon the circumstances of his exposure before 1 December 1992, and of his contracting asthma, not as proof of breach of duty before that date, but only as going in proof of breach of duty thereafter. But if the serious injury was determined to fall within para (b), I find it difficult to imagine how the respondent would be able to rely upon his continued exposure after 1 December 1992 in proof of breach of duty causing his injury - which by definition had been caused prior to that date. Further again, depending what was "the injury" in respect of which damages could be claimed might depend the availability of a limitation defence.

The application of s. 135A in this case

226. From my perspective the issue that might arise if the judge had held that the applicant had satisfied only para (a) or (b) of sub-s. (2) need not be decided in this case. It is clear, as I have said, that the one worker may suffer injuries which are serious injuries and which respectively fall within paras (a) and (b) of s. 135A(2). There is no reason in principle why the serious injuries may not affect the same part of the body. In RJ Gilbertsons P/L v Skorsis[45] Buchanan JA said at [27] that injury may by its impairment consequences be serious injury even though the same impairment is attributable to another, thereby serious, injury. I respectfully agree.

229. In consequence, it was conceptually open to the trial judge in the present case to conclude that the respondent had suffered compensable injury in each of the periods of employment before and after 1 December 1992; and to conclude that each injury was, by reason of its causative role in an ultimate impairment, a serious injury.[46] In my opinion that is what his Honour did in fact. It is true that he did not in terms address that issue at [36] of his Reasons, upon which paragraph the appellant relied in submitting that his Honour failed to find whether para (a) or (b) was satisfied; or else, if he did, that his Reasons did not disclose his conclusion. But in my opinion it is implicit in his Honour's Reasons at [36] that he was satisfied that the criteria of both paragraphs were satisfied. Further, the findings which he there expressed should be understood in the light of earlier paragraphs of the reasons in which his Honour accepted certain evidence and expressly or impliedly rejected other evidence.

232. Since my understanding of his Honour's Reasons involves rejection of the appellant's main arguments, I should explain the conclusions which I have reached.

235. His Honour, as it seems to me, accepted the following evidence:

* The respondent was exposed throughout his employment between 1980 and 1995 to a wide variety of chemical compounds and gases;

* Until about 1990 the appellant provided workers with very little in the way of respiratory protection. An improved means of protection was provided thereafter, but its constant use was not required;[47]

* The respondent did not suffer from asthma before 1980.

* The respondent first developed symptoms of asthma in about 1986;

* Thereafter the respondent's health deteriorated. It continued to do so until 1995;[48]

* The respondent's asthma was exacerbated between 1993 and 1995, when it became severe and unstable.[49] By mid 1995 the respondent's own specialist and the works doctor were substantially of the same opinion: that the respondent should cease working with the appellant.

* The respondent's employment with the appellant significantly contributed to his asthma - its initiation; or at least its substantial aggravation. That was the opinion expressed by doctors whose reports were relied upon by the respondent: Dr Cailes,[50] Dr Hunt[51] and Dr Hocking.[52] It was also the opinion, with one exception, of doctors whose reports were relied upon by the appellant.[53] His Honour noted, specifically, the opinion of Dr Peter Trembath that "exposure while continuing to work over the period from 1 December 1992 until stopping in mid 1995 was a material factor in [the respondent's] condition worsening." That opinion was consonant with the observations of Dr Galbraith, the general practitioner, and with the opinions of Dr Hunt[54] and Dr Hocking,[55] all of which his Honour evidently accepted.

245. When his Honour found, at [36], that "the work environment at Alcoa was the cause or a substantial cause of the plaintiff developing asthma or alternatively, caused the substantial aggravation of that condition" it seems to me, in context, that his Honour was finding the following:

* The respondent had been exposed to a work environment " conducive to the development of respiratory ailments" throughout the period of his employment. That was the case both before and after improved respiratory protection was provided; for such protection was not used full time.

* Throughout the period of his employment the respondent had suffered compensable injury. That was manifest by the development of asthma in about 1986; and thereafter by its worsening. In respect of the period after 1 December 1992 there was the evidence that the respondent's asthma was exacerbated and became severe and unstable; and the opinion of each of three specialists[56] that exposure after 1 December 1992 was a material factor in the condition worsening to the point where it became seriously disabling by mid 1995.

* The extent of impairment present in June 1995 was caused both by injury suffered before and injury suffered after 1 December 1992. Each injury was a sufficient cause thereof. In the case of the injury suffered before 1 December 1992 the incapacity arising therefrom became known, according to the Collins test, when the respondent became disabled to the point that cessation of the employment was recommended in mid 1995.

252. I have already said that I agree with Chernov JA that this appeal should be dismissed. I only add that, on the view which I have taken of the Reasons of the learned trial judge, the respondent is undoubtedly entitled to allege in the substantive proceeding that both before and after 1 December 1992 he was negligently exposed to deleterious working conditions and in consequence suffered injury throughout that period.

[1] See Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436 at 437 per Brooking, J.

[2] Leave to appeal was granted by this Court on 23 August 2002 on condition, inter alia, that such leave would not inhibit the respondent from instituting the proceeding in respect of this serious injury.

[3] [1992] VicRp 58; [1992] 2 V.R. 129.

[4] [1994] VicRp 32; [1994] 1 V.R. 436.

[5] [1998] VSCA 93.

[6] [1998] VSCA 129; [1999] 1 V.R. 215 at 216-217 per Winneke, P. See also Angeletos v. Museum of Victoria [1999] VSCA 129; [1999] 3 V.R. 157 at 160 per Winneke, P.

[7] [1998] VSCA 131; [1999] 1 V.R. 405 at 409-410 per Chernov, J.A.

[8] In part this amendment was introduced to overcome the effect of the decisions of this Court in Rizza and Walker.

[9] Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140 per Crockett and Southwell, JJ.

[10] See, for example, Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436 at 437 per Brooking, J. and at 445 per Southwell and Teague JJ.

[11] [1997] 1 V.R. 285 at 290.

[12] See, for example, Watts v. Rake [1960] HCA 58; (1960) 108 C.L.R. 158 at 164 per Menzies, J. with whom Dixon, C.J. and Windeyer, J. agreed, and Purkess v. Crittenden [1965] HCA 34; (1965) 114 C.L.R. 164 at 167-168 per Barwick, C.J., Kitto and Taylor, JJ.

[13] Dey v. Victorian Railway Commissioners [1949] HCA 1; (1948) 78 C.L.R. 62 at 90-91 per Dixon, J., General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 112 at 129-130 per Barwick, C.J., Holland-Stolte Pty. Ltd. v. Bill Acceptance Corp. Ltd. (unreported, 30 March 1992 per Tadgell, J.) and Malaysia International Shipping Corp Berhad v. VISA Australia Pty. Ltd. [2003] V.S.C.A. 64 at [10] per Buchanan, JA. with whom Phillips and Chernov, JJ.A. agreed.

[14] Coles Myer Ltd. Bowman [1995] VICSC 219; [1996] 1 V.R. 457 at 459 per Charles, J.A.

[15] At 437. See further Barlow v. Hollis [2000] VSCA 26; (2000) 30 M.V.R. 441 at [14] per Chernov, J.A.

[16] See Collins at 221-223 per Winneke, P.

[17] See Fletcher Construction Australia Ltd. v. Lines MacFarlane & Marshall Pty. Ltd. (2001) V.R. 28 at 35-36; Barlow v. Hollis at [16] per Chernov, J.A. and Nichols v. Robinson [2001] V.S.C.A. 11 at [14] per Winneke, P.

[18] [2000] VSCA 171; (2000) 2 V.R. 246 at 270-271.

[19] [1949] VicLawRp 6; [1949] V.L.R. 22 at 28-29.

[21] See also to the same effect Bastin v. Carew (1824) Ry & Mood 126 at 127; 171 E.R. 966 at 967, per Lord Abbott, C.J.; Skubevski v. R. [1977] W.A.R. 129 at 131 per Burt, C.J. See further R. v. Kranz (1991) 53 A.Crim.R. 331 and R. v. Richards [2001] NSWCCA 160; (2001) 123 A.Crim.R. 14.

[22] With whom Callaway and Chernov, JJ.A. agreed.

[24] See the definition of "document" in s. 3 of the Evidence Act.

[26] Unreported, 8 October 1993, Supreme Court of Tasmania.

[27] [1978] Tas.S.R. 79.

[29] [1997] 1 VR 285.

[33] Neither, I consider, is any different result required by my reasoning in Bowles v Coles Myer Ltd [1995] VicRp 32; [1995] 1 VR 480, the correctness of which was affirmed in Hanrahan. Whilst I there noted the distinction which the section draws between bringing a proceeding and recovering damages, I also noted the particular quality of sub-s. (2) (at 483); and I at least implied that conformity with that sub-section would fall to be established on an application under sub-s. (4)(b) if such an application was made (at 484, lines 36-47).

[35] see Carlton & United Breweries Ltd and anor v Hegedis [2002] VSCA 61.

[36] [1998] VSCA 129; [1999] 1 VR 215 at 222.

[38] See Connair P/L v Frederiksen [1979] HCA 25; (1979) 142 CLR 485 per Mason J at 500-502.

[39] The Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32 at 39 per Dixon CJ; and also per the Chief Justice at 38, and per Menzies J at 44-45. See also Connair per Gibbs J at 494-495, Mason J at 507 and Barwick CJ (dissenting in the result) at 488.

[40] Accident Compensation Commission v Botezatu [1993] VicRp 22; [1993] 1 VR 304 per Marks J at 306 and per Ashley J at 312.

[42] See Gennimatas v Transport Accident Commission (2003) 5 VR 547 at [48] - [51], where I mentioned several pertinent references.

[43] Lu v Mediterranean Shoes P/L and Ors [2000] VSCA 65; (2000) 1 VR 511 at [25]- [28].

[44] About this, there is no doubt. See the oral submissions of senior counsel for the respondent at trial at T 75, 76 and 79 lines 6 - 15.

[45] [2000] VSCA 51.

[46] It being open to the respondent to rely upon injury under s. 82 of the Act, it was unnecessary in the case of s. 135A(2)(a) for the respondent to establish that employment of the particular nature was a significant contributing factor to injury; though he might readily have done so.

[53] His Honour specifically rejected the opinion of the doctor who took a different position.

[54] Report 22 November 2001at AB, C 108.

[55] Report 23 April 2001, AB, C 114.