Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171

Accident Compensation Act 1985, ss.98C, 104B(2)(4)(5), 134AB(15)(16).

1 I have had the considerable advantage of reading in draft the reasons for judgment of Ashley, JA. I agree with his Honour's conclusion, for the reasons which he gives, and I agree with the proposed disposition of the appeal.

Statement of the case

2 This appeal, as argued, in substance raised a single question. What was the effect of s.104B of the Accident Compensation Act (the Act) as it stood after amendment by Act No. 26/2000 and before amendment by Act No. 102/2004?[1] Specifically, for the purposes of a serious injury application under s.134AB(16)(b), did the prior acceptance by the WorkCover Authority,[2] under s.104B(2), of a worker's claim under s.98C for lump sum compensation for non-economic loss "in respect of an injury resulting in permanent impairment"- in cases in which the accepted s.98C injury had allegedly been sustained in whole or in part after 20 October 1999 - establish conclusively that the worker had sustained compensable injury on or after that date? The question arose in the context of the appellants[3] seeking to overturn, and the respondent worker seeking to uphold, an order made by a County Court judge on 19 July 2005 which granted him leave to bring a proceeding for pain and suffering consequences of compensable injury under s.134AB(16)(b) of the Act.

3 For the reasons which follow, I would answer that question no. The acceptance of liability under s.104B(2) has evidentiary effect only, as an admission by the Authority that such an injury was sustained. Such an admission should ordinarily be regarded as very significant, however, having regard to the serious consequences for the Authority flowing from the acceptance of a claim.

The course of events

4 Trevor Taylor, the worker, (conveniently "the plaintiff"), a man born on 29 May 1958, was employed by Ansett Australia Ltd. (conveniently "the defendant") between 1985 and September 2001. He was first employed as a loader in the defendant's cargo division at Tullamarine Airport. After some months, he became a freight clerk. In the latter position, his duties involved a lot of lifting and manoeuvring of items of cargo; and clerical work as well.

5 In March 1999 the plaintiff was diagnosed with kidney cancer. He underwent surgery and made a good recovery. He resumed his normal work, and also a broad range of recreational activities.

6 In late 1999 and early 2000 the plaintiff's duties, as before, involved frequent lifting and manoeuvring items of cargo. That work, he said in his affidavit sworn 19 August 2004, he would describe as "fairly repetitive and at times very heavy".

7 In late 1999 the plaintiff experienced some back pain. He attended his general practitioner and was given medication. He continued with his work.

8 I come to matters deposed to by the plaintiff which the defendant, to greater or lesser extent, wished to agitate on the hearing of the s.134AB(16)(b) application:

"10. In early 2000, after working in the uplift area, I started to experience pain into my left leg which I now understand was sciatica. I noticed this particularly when bending and lifting items of freight and bending and lifting the heavy draw bars at the front of freight barrows which I was required to do on a repetitive basis. I reported it however continued to work hoping that it would go away.

11. By April, 2000, the pain had not gone away and as such I returned to Dr Sankhulani who gave me medication and referred me for a CT scan.

12. On the 5th May, 2000, I slipped on water on the floor of the Defendant's premises. The water had emanated from an airconditioning unit on the top of an office that was located inside the warehouse. When I slipped, my leg went from under me however I corrected myself without falling. As a result, I suffered sudden pain in my lower back and pain shooting down into my left leg.

13. Within a few days of the incident happening, I went back to Dr Sankhulani who gave me a week off work because of my back pain. On the 10th May because of my back pain, I was taken by ambulance to the Royal Melbourne Hospital where I was admitted and on the 12th May, had emergency surgery carried out upon my lower back by a neurosurgeon, Dr Kavar. I believe this surgery was an L5-S1 discectomy. I remained in hospital for about a week."

9 Pausing for a moment, it was not in debate that on the morning 5 May 2000 the plaintiff underwent a CT scan which showed a prolapse at the L5/S1 level. Neither was it in debate that the plaintiff attended his work later that day, nor again that he worked on 6 and 7 May. Again, it was apparently not in issue that he consulted his general practitioner on 8 May and was advised to rest and take painkillers; but that his pain had become so great by 10 May that he had to be taken to hospital by ambulance, his admission culminating in surgery on the evening of 11-12 May in the course of which two large fragments of a prolapsed L5-S1 disc, and the disc residue, were removed.

10 I return to the plaintiff's account. His symptoms, he deposed, were improved by surgery. On 28 June 2000 he resumed work on light duties. But he had ongoing back pain and stiffness, and symptoms affecting his left leg. He also developed bladder problems, which turned out to be a consequence of his back injury.

11 Despite his symptoms, the plaintiff remained at work. He continued to undertake restricted duties - but, he deposed, with difficulty, and with loss of time. Then the defendant ceased business. That was in September 2001.

12 The plaintiff was 12 months out of work, despite his attempts to find a job. Then he obtained employment as a workplace trainer and assessor, employment of a kind in which he continued at trial - though not with his initial employer in that field.

13 The plaintiff deposed that he was able to perform his new work. Nonetheless, he said, he continued to suffer considerably from residual symptoms affecting his low back, left leg and bladder; symptoms which considerably affected his day to day life, including his recreational activities. That was the situation at trial.

14 The following additional circumstances must be mentioned.

15 First, the plaintiff completed a claim for compensation. In the document, dated 29 June 2000, he asserted that the injury was a "slipped disc" affecting his back, left leg and toes. He identified the alleged cause of his injury this way:

"Slipped on wet floor 5 May 2000 and constantly lifting heavy objects for months leading up to 5 May 2000."

"had been suffering from sciatic/back pain since February-March."

16 It was not in debate that, in connection with this claim, the plaintiff was paid weekly compensation for the period of his incapacity until he returned to modified duties, that his hospital and medical expenses were paid, and that he was paid weekly compensation when periodically incapacitated in the period up to September 2001.

17 Second, by document dated 27 June 2003 the plaintiff claimed impairment benefits under s.98C of the Act. In response to the question "For what injury/ condition(s) are you claiming impairment benefits", he wrote - "back, bladder, bowel, left leg". In response to the question "Which body parts are affected?", he gave the same answer. Asked, "Date injury sustained or date you first became aware of the condition?", he answered - "5/5/00". Asked, "How did your injury/condition(s) occur?", he wrote - "Slipped on puddle of water that was leaking from an air-conditioning unit."

18 Liability was accepted for that claim[4] by the insurer's letter of 22 July 2003,[5] which identified the "Date of injury" as "5th May 2000."

19 The insurer then had the plaintiff examined by a consultant surgeon, Mr Brendan Dooley.[6] Relying upon Mr Dooley's opinion, the insurer notified the plaintiff, by letter dated 7 January 2004, of the assessment made by Mr Dooley of the plaintiff's "whole person impairment". That letter identified the date of injury as "05/05/2000".

20 Pausing for a moment, Mr Dooley's examination and assessment had significance of two kinds. It bore upon the plaintiff's entitlement to compensation under s.98C;[7] and it was also pertinent to the operation of s.134AB.

21 The presently-relevant immediate and distant effects of the impairment assessment were these: First, by reason of the assessed degree of impairment, section 134AB(15) did not apply so as to deem "the injury" to be a serious injury. Second, it then became pertinent for the insurer to decide whether it was satisfied that "the injury" was a "serious injury", and in that event to issue a certificate consenting to the plaintiff bringing common law proceedings. It refused to so certify. Third, such refusal led on, in turn, to the plaintiff issuing an Originating Motion out of the County Court on 24 September 2004, seeking leave under s.134AB(16)(b) to bring proceedings "in respect of the injury". It was the hearing and determination of that application which, in turn, led on to this appeal.

22 The application came on for hearing on 8 July 2005. The plaintiff attended, as his counsel said, to establish that the injury in respect of which liability had been admitted was serious injury. But defendant's counsel sought to agitate two other issues. First, he sought to establish that the plaintiff had not mentioned the alleged slip at work on 5 May 2005 in the history which he had provided to his general practitioner at about that time, to an ambulance officer who had attended on 10 May to take him to hospital, or to the admitting doctor at the Royal Melbourne Hospital. In that event, counsel sought to argue, the plaintiff had not satisfied the burden of showing that any such incident had occurred. Second, the defendant wished to rely upon evidence that the CT scan performed on the morning of 5 May showed the presence of an L5/S1 disc prolapse. Assuming the plaintiff satisfied the Court that the slipping incident had occurred, and that he was suffering from "serious injury" at time of trial, the defendant wished to argue that such injury was not attributable to the incident.

23 Plaintiff's counsel submitted that he had been taken by surprise. He mentioned the need for an adjournment if the defendant was to be permitted to agitate issues of the kind just mentioned. He argued that the defendant should not be permitted to challenge the occurrence of relevant compensable injury. He referred extensively to ss.98C, 104B, and to the relationship between the latter and s.134AB.

24 The learned judge ruled as follows:

"I am not satisfied that the Plaintiff today was on notice that an issue to be determined today was that the slipping on 5 May 2000 was a cause of the injury of which he complains. It is not for the plaintiff to divine that such an issue could be raised or is likely to be raised or has been raised. That is particularly a case where plaintiff's court book at p.361 the indication, as I read it, is that this specific issue is not raised by the defendants' insurers.

The draft defence to the proposed statement of claim is a document prepared, I am told, under ministerial guidelines and that those proceedings are to take place if leave is given on the present application. In my view the general denial with respect to paragraph 5 does not amount to proper notice that this is an issue that is to be determined on the present application. The application with respect to serious injury is to proceed today. At trial, the issue as to causation can be raised again as counsel for the defendants acknowledges."

25 The meaning of what his Honour intended was taken up by defendant's counsel. Discussion culminated in this question and answer:

"That would mean as I apprehend it, Your Honour, that we would have to simply accept his current condition as a result of a work-related injury, and does that mean that the only thing we can explore is whether that injury constitutes a serious injury?

That's the issue before this court."

26 The hearing of the application then proceeded. Only the plaintiff gave evidence viva voce. The judge permitted him to be cross examined as to the history which he had given to his local doctor, to the ambulance officer and at Royal Melbourne Hospital. His Honour did so over the objection of counsel for the plaintiff. He put this rhetorical question to counsel:

"[the] history can be relevant to whether or not it's a serious injury, can't it?"

I note also his Honour's later observation that -

"Yes, I consider the history to be relevant to the issues on this application and the question is allowed."

"Mr. Wischusen: Could I just say something more, Your Honour, perhaps I haven't made myself clear. What's being explored here are matters of causation of the accepted back condition for which the plaintiff underwent surgery. Your Honour will recall that in the argument about ---

His Honour: Causation is not an issue on this application.

Mr. Wischusen: That these questions go to that is my objection, sir.

His Honour: To the extent that they go to causation, they shouldn't go to causation and if they do, answers are given which go to causation, they're not relevant on this application."

27 Cross-examined, the plaintiff did not challenge the accuracy of the histories as recorded.

The judge's reasons

28 In his reasons, the judge identified three questions which he needed to answer. They can be summarized as follows: First, was the plaintiff entitled to rely upon referred symptoms referable to his back injury - that is, as affecting his left leg and bladder - in addition to soreness and stiffness of his back? Second, could potential economic loss be taken into account in assessing whether the plaintiff had suffered serious injury of the pain and suffering kind? Third, had the plaintiff satisfied the onus of showing on the balance of probabilities that he had suffered serious injury as defined by s.134AB(38)(b) and (c)? Those issues, evidently, did not include "the issue of causation", which, his Honour said, "was not determined on this application, it was reserved to be determined at any subsequent trial".

29 It is apparent from his Honour's reasons that he accepted, for the purposes of the application, the occurrence of an incident as described on 5 May 2000, set against a background of back pain dating from November 1999, and left leg pain developing some months later. He did so whilst describing the incident of 5 May 2000 as one which was claimed, rather than one that had been established. It is also clear that his Honour was satisfied that the plaintiff's spinal, leg and bladder symptoms - which he aggregated - then constituted serious injury of the pain and suffering kind. Hence his order granting leave to the plaintiff to bring a proceeding.

The notice of appeal; and the appeal as it proceeded

30 By its notice of appeal the defendant raised, in substance, four issues. First, it challenged the ruling of the learned trial judge that "causation" was not in issue. That ruling had led his Honour, said the defendant, to not answer a necessary question - whether the plaintiff had established that he had suffered compensable injury on or after 20 October 1999; and then not to answer a further necessary question - whether any such compensable injury had serious injury consequences. Second, the defendant contended that the learned judge had wrongly aggregated the plaintiff's back and bladder conditions when considering whether he had suffered serious injury. Third, it challenged the finding of serious injury. Fourth, it contended that his Honour's reasons for decision were inadequate.

31 Before this Court, the defendant abandoned the second of those issues; and did not agitate the third and fourth of them in oral argument. Argument centred on the first issue, but was conditioned by the frank concession of plaintiff's counsel that the reasoning of the learned judge could not be supported. That is, counsel for the plaintiff did not seek to justify the ruling at trial, which was essentially that the defendant should not be permitted to raise the issue of "causation" because that issue had been belatedly notified to the plaintiff's side.

32 In my respectful opinion, that concession was rightly made. There was considerable force to his Honour's implied criticism of the defendant's conduct of the matter, at very least because the insurer had been in possession of relevant material since November 2004, and because the insurer ought to have been in possession of such information long before that. Further, although it may well have been the case that there were answers of substance to the matters which the defendant sought to agitate, on a conventional approach the defendant should not have been shut out - on terms of an adjournment at its cost - from agitating those matters. The observations of Winneke, P in Howarth v Adey[8] are in point.

33 In addressing the first issue, and its application to the present case, counsel for the plaintiff submitted that -

(1) It is required of a plaintiff that he[9] establish, in an application brought under s.134AB(16), that he suffered compensable injury on or after 20 October 1999, and that such injury is in its consequences a serious injury;

(2) It was no part of the argument in Barwon Spinners[10] that acceptance of a claim under s.104B(2) in its relevant form was conclusive, in a s.134AB(16)(b) application, that compensable injury had been sustained on or after 20 October 1999 in a case where the s.98C claim to which the assessment related was in respect of injury alleged to have occurred wholly or partly on or after that date;

(3) When regard was had to the interconnection between ss.98C, 104B and 134AB, the acceptance of such a claim was indeed conclusive on such an application that compensable injury, affecting particular parts of the body, had been sustained on or after 20 October 1999;

(4) Such an obliged conclusion left open for determination the question whether the compensable injury was, in its consequences, serious injury - see s.134AB(19)(a);

(5) The regime set up by ss.98C, 104B and 134AB was not controverted by s.135A or by authorities bearing upon that section; for the scheme of s.135A was relevantly different;

(6) In the present case, the s.98C application had identified injury occurring in compensable circumstances on 5 May 2000. The claim for impairment benefits had been for the non-economic consequences - to the back, left leg and bladder - of that injury. That claim had been accepted. It followed that the only question for decision in the hearing of the application was whether the plaintiff had established that the compensable injury sustained on 5 May 2000 had been serious in its pain and suffering consequences affecting those parts of his body (for the plaintiff had not pursued a claim that injury was serious in its economic loss consequences);

(7) The learned judge had decided that issue in the plaintiff's favour. That decision was plainly correct.

The pertinent provisions

34 The scheme of ss.98C, 104B and 134AB was relevantly as follows in the critical period:

• By s.98C, a worker who suffered "an injury which entitled the worker to compensation" was "in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss" in accordance with s.98C.

• In some circumstances, by operation of s.98E, compensation was payable for non-economic loss under that section, rather than under s.98C.

• By s.104B, in the event that a claim for compensation was made under s.98C -

"(2) The Authority or self-insurer must within 90 days of receiving the claim -

(a) accept or reject liability in relation to the claim".

• In the event that a claim was rejected, it had to be conciliated.[11] Only if conciliation failed could a worker bring a proceeding in the Magistrates' Court or County Court in respect of such claim.

• In either of two circumstances the Authority or self-insurer was obliged to request the worker to attend "an independent examination by a medical practitioner". The circumstances were -

"If

(a) the Authority or self-insurer accepts liability in relation to the claim; or

(b) the Court determines in the proceedings relating to the claim that the Authority or self-insurer has liability in relation to the claim".[12]

"(a) assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker -

(i) for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and

(ii) for the purposes of sections 134AB(3) and 134AB(15)."[13]

• In the event that a worker disputed assessments made under s.104B(5), the Authority or self-insurer was obliged to refer "the medical questions as to the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a)" to a medical panel for its opinion.[14]

• No appeal lay to any Court from "an assessment or opinion -

(a) as to the degree of permanent impairment of a worker resulting from an injury".[15]

• For the purposes of s.104B -

"... liability in relation to a claim [did] not include a question as to the degree of permanent impairment of a worker or whether a worker has an injury which is a total loss " mentioned in s.98E.[16]

• Section 134AB(1) addressed the circumstances in which a common law proceeding might be brought in cases where a worker, or the worker's dependants -

"are or may be entitled to compensation in respect of any injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999."

• By s.134AB(3), a worker was precluded from bringing proceedings in accordance with the section unless -

"(a) assessments of the degree of impairment have been made under section 104B; and

(b) the worker has made an application under sub-section (4)."

• The application referred to in s.134AB(3)(b) was the application by which a worker sought, in substance, a decision by the Authority or self-insurer that he was deemed to have suffered a serious injury; and otherwise a decision whether or not the Authority or self-insurer would issue a certificate authorizing the commencement of common law proceedings under s.134AB(16)(a).

• By s.134AB(15) -

"If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section."

• By s.134AB(16) -

"(16) If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(a) the Authority or self-insurer -

(i) is satisfied that the injury is a serious injury; and

(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or

(b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under sub -section (7) or, with the consent of the Authority under sub-section (2), after that period, gives leave to bring the proceedings."

35 Against that background, I return to the propositions advanced by plaintiff's counsel. The first, second and fourth of them were evidently correct. So also it is the fact - see counsel's fifth proposition - that s.104B had never had any part to play in the operation of s.135A. One must then focus on counsel's third proposition, which was central to his submissions, and which may be amplified as follows: on a proper reading of the Act, acceptance of a claim under s.104B(2) in its relevant form was conclusive, in an application under s.134AB(16)(b), that compensable injury affecting the part or parts of the body specified in the accepted claim had been suffered on or after 20 October 1999 where the s.98C claim to which the acceptance related was in respect of injury alleged to have occurred wholly or partly on or after that date.

36 Although s.104B(1), (2), (3) and (4) referred to the making of a claim, and acceptance or rejection thereof, it is to be remembered that the claim, having regard to s.98C, was in respect of a compensable injury resulting in alleged permanent impairment. That was emphasized by s.104B(5), which addressed assessment of the degree of permanent impairment "resulting from the injury to the worker." Section 104B(11), by its exclusion of the question of degree of a worker's permanent impairment from determination "of liability in relation to a claim", served to emphasize that acceptance of liability in relation to a claim addressed acceptance of a claim that compensable injury had been sustained in particular compensable circumstances, and affecting a particular part of the body.

37 In the context of s.134AB, sub-section (15) could have had no sensible operation unless "the injury" there referred to was a compensable injury occurring on or after 20 October 1999; and whether the s.104B assessment related to such an injury depended in turn on the s.98C claim, which must have been made in respect of a specified compensable injury allegedly resulting in permanent impairment.

38 It follows from what I have said that, for the purposes of s.134AB(15), a s.104B(5) assessment of degree of impairment - which could only be made if the worker's s.98C claim was accepted, or if a court determined that the Authority or self-insurer had liability in relation to the claim, was decisive of -

• The occurrence of compensable injury on or after 20 October 1999.

• The persistence of consequences of compensable injury - necessarily being specified as affecting a particular part of the body - which met the initial gateway test of serious injury.

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 -

• Has the plaintiff established that he suffered compensable injury on or after 20 October 1999?

• If yes, has the plaintiff established that such injury is, in its pain and suffering consequences, is serious injury?

62 Upon the first question, and having regard to the injury as first described - that is, referring both to a slip on 5 May 2000 and to constant strains on the back "for months leading up to 5 May 2000"[23] - it should be open to the plaintiff to seek to establish compensable injury in one or both of the circumstances described. That is so despite the more limited description of injury given in connection with the s.98C claim. Further in deciding the first question, the conduct of the defendant in accepting liability in relation to the s.98C claim should be accorded the evidentiary significance, as an admission, which the particular circumstances require.

63 So far as determination of the second question is concerned, it is not to be presumed, because the issue was not orally argued in this Court, that the defendant abandoned its challenge to the finding made below. That is not to suggest, however, that the test which his Honour applied - except that it was founded on assumed rather than proved injury - was wrong. In my opinion it was not. Nor is it to suggest that the plaintiff is likely to have a weak case on the facts. Indeed, the

contrary may very well be the case.

64 I should add this: in my opinion it would be appropriate to remit this matter to the learned judge from whose orders this appeal was brought. The amount of further evidence likely to be adduced, as would supplement material of which his Honour is already seised, would not likely be great.

65 I have read the draft judgment of Ashley JA, and I agree that the matter should be remitted for further hearing and determination by the County Court, for the reasons his Honour has stated.

[1] In subsequent references to s.104B, I will not repeat the version of that section which was in issue in this case.

[2] Or self-insurer. I will not hereafter repeat that what I am saying has applicability to self-insurers.

[3] The employer and Victorian WorkCover Authority.

[4] See s.104B(2)(a).

[5] By the insurer, I refer to the insurer agent for the Victorian WorkCover Authority, acting for the defendant. The symptoms affecting the left leg, bowel and bladder were accepted, not as consequences of discrete injuries, but as being referred symptoms of the plaintiff's back injury.

[6] See s.104B(4)(a).

[7] And under s.98E in an appropriate case.

[8] [1996] 2 VR s.35 at 542-544.

[9] Or she - each reference to the male is to be read also as a reference to the female.

[10] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33.

[11] See ss.104B(3) and 49.

[12] Section 104B(4).

[13] Section 104B(5).

[14] Section 104B(9).

[15] Section 104B(12).

[16] Section 104B(11).

[17] See s.104B(2).

[18] See s.104B(1A), cf s.104B(1B).

[19] Or s.98E.

[20] See s.134AB(3)(b), (4)(b)(i), (7), (16)(b).

[21] Whether under s.104B(5) or (9).

[22] Subject only to the possible operation of sub-s.(20).

[23] See also the plaintiff's account of the development of symptoms in paras 10 to 13 of his Affidavit - set out in [8], above.