39 Section 134AB(16) was predicated upon the s.104B assessment of impairment "as a result of the injury" being less than would meet the initial gateway test. Then a worker might not bring proceedings in respect of "the injury" except if the second or third gateway could be accessed. "The injury" referred to in relation to the s.104B(5) assessment of impairment and "the injury" in respect of which a proceeding might be brought in certain circumstances were surely the same compensable injury. As the plaintiff would have it, the question was then whether, liability in relation to a claim in respect of that injury having been accepted under s.104B(2), the question whether there had been such a compensable injury was, for the purposes of s.134AB(16), already decided; and to that question the answer, said the plaintiff, was yes.
40 There was, in my respectful opinion, much force in the argument advanced for the plaintiff. But in the end I do not accept it. I rather consider that a distinction should be drawn, in instances to which ss.104B and 134AB in the pertinent form apply, between cases where the assessment under s.104B(5) was provoked because the circumstances fitted s.104B(4)(a), and cases where such assessment was provoked because s.104B(4)(b) applied. In the latter situation, I would hold that the decision of a court that the Authority or self-insurer had "liability in relation to the claim" would conclude the issue - in a subsequent s.134AB(16) application - that compensable injury affecting a particular part of the body had been suffered on or after 20 October 1999 where the s.98C claim raised such an allegation. But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim - not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) - I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.
41 I do not accept the submission, made for the defendant before this Court, that the speed with which a defendant was required to act in accepting or rejecting a claim,[17] and a possible want of all relevant material when making the pertinent decision, should lead to not much significance being attached, in an application brought under s.134AB(16), to the admission constituted by acceptance of a claim. That is so for a number of reasons.
42 First, it is wrong to posit that, at least in most cases, the Authority or self-insurer would have only 90 days from receipt of a s.98C claim to obtain information relevant to its making a decision whether to accept or reject such claim. Most often, a claim could not be made until the elapse of 12 months from the date of the relevant injury;[18] section 102, then as now, obliged notice of injury (subject to exceptions) to be speedily given.
43 Second, it is probable that, in most cases, a claim for compensation would have been made in connection with the alleged injury before the s.98C claim was raised. Section 103(1)(a), then as now, obliged a worker to provide a signed medical authority in favour, inter alia, of the Authority or self-insurer, when making a claim. In the present case, the plaintiff made a claim for compensation in late June 2000, and signed a relevant authority.
44 Third, the claim form pertinent to a s.98C claim, in any event, contained a medical authority for signature by the worker. In the present case, emphasizing that requirement, the plaintiff signed such an authority, that being the second authority which he gave. The Authority or self-insurer had 90 days from receipt of that claim to obtain all relevant material - if it had not already obtained it.
45 Fourth, counsel for the defendant informed the Court, having obtained particular instructions, that the Authority and self-insurers have experienced difficulty, in a significant percentage of cases, in obtaining relevant information within the time available for making decisions concerning acceptance or rejection of claims. He implied, if he did not directly so submit, that liability was sometimes accepted too readily. Having regard to the significant opportunities for the Authority and self-insurers to obtain information in good time, if their processes are efficient, I am unimpressed by the expressed difficulties. If it be the case that liability in respect of claims has been, or is, accepted despite want of relevant information - counsel for the defendant submitted that the medical authorities pertain to the injury the subject of the claim, so that a medical report will not, or may not, set out the worker's "full medical history" - I nonetheless see no reason why the Authority or self-insurers should be relieved of the consequences - in the present context, acceptance constituting an admission which will ordinarily be of much weight - of their conduct.
46 Why conclude that acceptance of liability for a claim should stand as an admission, but not as being conclusive, that compensable injury had been suffered on or after 20 October 1999? My reasons are as follows.
47 First, acceptance of a claim under s.104B(2)(a), as counsel for the plaintiff submitted, did bespeak acceptance of the compensability of injury. It did not pertain to the presence of impairment. That came later. Section 104B(11) emphasized that point. But whilst it is true, again as counsel for the plaintiff submitted, that acceptance of liability or a court finding of liability was necessary to trigger assessment of impairment, that impacting upon both entitlement to compensation under s.98C[19] and upon s.134AB, it is not the case that acceptance of liability and a court determination of liability are the same thing. The latter, but not the former, may operate, inter alia, as an issue estoppel. The effect of treating the two mechanisms as having the same effect in proof of compensable injury under s.134AB(16)(b) would be to elevate acceptance of liability to the status of issue estoppel.
48 Second, assessment of impairment made under s.104B(5) was made relevant to s.134AB(3) and (15), not to s.134AB at large. So, by operation of sub-s.(3), the circumstance that assessment had been made was a necessary precursor to a worker accessing any of the three gateways created by s.134AB. Further, in the context of the particular gateway created by s.134AB(15), an assessment of a certain degree of impairment was treated as being conclusive that an injury the subject of a s.98C claim, regardless whether it fell for assessment by operation of s.104B(4)(a) or (b), was in its consequences serious injury. For the purposes of sub-s.(15), then, it mattered not how the assessment of impairment came to be made. But it did not follow that how the assessment came to be made was not relevant to the operation of sub-s.(16)(b).
49 Third, it is related to the matters just mentioned, s.134AB(16)(b) said nothing directly as would give acceptance of liability in relation to a claim the status of an issue estoppel with respect to proof of compensable injury on or after 20 October 1999. The sub-section did not need to do so, I should add, in the event that a worker relied upon a determination of liability - that is a determination following rejection of a s.98C claim.
50 Fourth, nothing said in the Second Reading Speech, when s.134AB was introduced in its pertinent form, and when s.104B was in consequence amended, suggests any actual Parliamentary intent that acceptance of liability under s.104B(2)(a) should stand as conclusive proof that compensable injury had been suffered, in a case to which s.134AB applied, on or after 20 October 1999.
51 Fifth, substantial amendments were made to ss.104B and 134AB by Act No 102/2004. It is not necessary to mention all the changes. It is sufficient to say that in certain circumstances a worker may now bring a s.134AB(16)(b) application without a s.104B determination of the degree of impairment having been made.[20] Parliament specifically intended that this should be the new situation. It seems to be a consequence of the plaintiff's submissions that, since 2004, a worker, on an application brought under s.134AB(16)(b), will in one situation need to establish by evidence the happening of compensable injury on or after 20 October 1999; whilst in another situation the happening of such injury is to be taken as established. Nothing was said in the 2004 Second Reading Speech as would suggest that such a change of regime - as the plaintiff would have it - was being introduced.
52 Sixth, in granting a certificate under s.134AB(16)(a), an assumption was necessarily made that "the injury", the impairment consequences of which had been assessed, had occurred. But the grant of a certificate was an administrative act; and I do not think that one can necessarily extrapolate from circumstances which underpin an administrative act to a conclusion that a necessary element in a matter requiring judicial determination is to be taken to be proved.
53 Seventh, it is true that a favourable decision under s.134AB(16)(b) only allowed a worker to access a gateway, this permitting commencement of a common law action. But it does not follow, in the context of consideration whether the worker had accessed the gateway, that an administrative decision to accept liability in relation to a claim in respect of injury allegedly occurring on or after 20 October 1999 should stand as conclusive proof that such injury had been sustained.
54 Eighth, it is true, as counsel for the plaintiff submitted, that the Authority or a self-insurer, by rejecting liability in relation to a claim, would trigger, if the worker pursued the claim, first conciliation, and perhaps thereafter a court determination of liability. But it is another thing to say that a defendant's only opportunity to dispute compensability of injury - at least before the trial of a proceeding which was authorized by grant of leave under s.134AB(16)(b) - was by rejecting liability in relation to the claim, and so provoking such a sequence of events.
55 Ninth, it is true, as counsel for the plaintiff further submitted, that the making of an assessment of impairment[21] was the necessary precursor to making an application under s.134AB(4), and thus, having regard to sub-s.(7), to making an application under sub-s.(16)(b).[22] But it does not follow that the two mechanisms which could have led to assessment being made had the same effect, a propos proof of compensable injury, on an application brought under s.134AB(16)(b).
56 Tenth, I noted earlier that "the injury," where twice appearing in the opening portion of s.134AB(16)(b), was no doubt a reference to the same "injury;" and directed attention to "the injury," the consequences of which had been the subject of impairment assessment. But it is a further step to say that what was essentially a method of identifying the injury to which the sub-section related meant that the compensability of such injury was incapable of challenge where compensability had earlier been accepted, rather than determined.
57 Eleventh, it was no doubt correct for the learned judge at first instance to say that the question of "causation" was not foreclosed, that it could be contested at trial of a permitted common law proceeding. But one could not reason backwards to a conclusion that the question could not be raised on the hearing of the s.134AB(16)(b) application.
58 In the circumstances of this case, then, it remained for the plaintiff to satisfy the learned County Court judge that he had suffered compensable injury on or after 20 October 1999; and to satisfy his Honour that such injury was, in its pain and suffering consequences, serious injury. But because of his approach to "causation", the learned judge in substance did no more than decide that the pain and suffering which the plaintiff was experiencing in his back, leg and bladder, being assumed to be the consequences of relevant compensable injury, were consequences bespeaking serious injury.
59 Given his Honour's approach, it is not at all clear why he permitted cross-examination of the plaintiff upon the issues of history which I mentioned a little earlier; and with respect to the findings on the CT scan performed on 5 May 2000. But whatever was the reason, it is clear that in his reasons for judgment the learned judge did not examine whether there was a causal relationship between the "claim[ed]" injury of 5 May 2000 and the plaintiff's then present disabilities. Furthermore, his Honour specifically observed that "(t)he issue of causation was not determined on this application, it was reserved to be determined at any subsequent trial".
60 In the event, even if the plaintiff had been correct in submitting that, on his s.134AB(16)(b) application, the question whether he had suffered compensable injury on 5 May 2000 which had affected his back, left leg and bladder was foreclosed against the defendant by operation of s.104B(2), it remained for the plaintiff to sufficiently establish that such compensable injury was serious in its pain and suffering consequences; and his Honour did not decide that question.
What should be done?
61 Notwithstanding s.134AD, this Court has held that it has power to remit an application made under s.134AB for further hearing and determination by the County Court. In my opinion, it should take that course in this case. Counsel for the plaintiff accepted that if it had been necessary for his client to establish the happening of compensable injury on or after 20 October 1999, then the material was insufficient for this Court to deal with the matter. Such insufficiency does not mean that the appeal should simply be allowed, the plaintiff being held to have failed in his application. For the insufficiency was very likely the consequence of the ruling at trial. I would, therefore, remit the proceeding for hearing and determination by the County Court. At trial, the questions for determination will be -