CORCORAN v TYRE MARKETERS AUSTRALIA

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40877/99 DC 5199/99

MASON P DAVIES AJA GROVE J Tuesday 11 September 2001

Trevor Lawrence CORCORAN v TYRE MARKETERS AUSTRALIA

On 18 July 1994 the appellant suffered injury to his back when changing a truck tyre. He was employed by the respondent at Beaurepairs Goulburn.

Between July 1994 and August 1995 the appellant visited various medical practitioners and specialists, undergoing physiotherapy, myelography and exploratory surgery. However, the appellant's levels of pain and disability increased. On 21 August 1995 the appellant's employment was terminated because of his inability to work.

On 28 July 1994 the appellant completed a compensation claim. On 25 October 1995 the claim was listed at the Goulburn Court House. There were settlement negotiations and the appellant elected to settle, accepting the respondent's offer of $45,000.

The appellant now seeks to be relieved from this election. His medical condition has continued to worsen, contrary to his expectation when he settled his compensation claim. In July 1997 the appellant began proceedings against the respondent, claiming damages based on breach of employer's duty of care.

In the District Court, Judge Naughton found that the appellant's injury was the exacerbation of a pre-existing degenerative spinal condition in both his lower back and neck. The critical question for the Judge was whether s151A(5)(c) of the Workers Compensation Act 1987 had been satisfied. That provision provides that a person may, with the leave of the court, revoke an election to claim permanent loss compensation if "at the time of the election, there was no reasonable cause to believe that the further deterioration would occur".

Judge Naughton, applying Taylor v State of New South Wales (1999) 46 NSWLR 322, found that a reasonable person knowing what was or ought to have been known by the appellant in October 1995 would have expected the further deteriorations suffered by the applicant as something more probable than not.

The appellant submits, first, that the Judge erred in his finding, and secondly that the appellant's election did not extend to a neck injury.

Held, (by Mason P and Grove J, upholding the appeal, Davies AJA dissenting):

1. It was common ground that Judge Naughton had proceeded on the false basis of the approach sanctioned by the Court of Appeal in Taylor . It was the joint request of the parties that the matter be dealt with afresh in this court, rather than be remitted. "Dealing with the case on the evidence" should be understood as hearing the matter de novo.

Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (cited); Warren v Coombes (1979) 142 CLR 531 (referred). Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 (referred). 2. There was nothing in the evidence of the treating doctors in the period May - September that indicated any belief on the doctors' part that the condition would worsen. The post-election opinions do not concede any error in their assessment as at late October. There was no reasonable cause to believe that the further deterioration that later occurred would occur. 3. Merely because there is credible medical evidence against an applicant on the issue raised by s151A(5)(c) does not mean that the applicant must fail.

4. The election was intended to cover the totality of disability stemming from the workplace injury. The appellant's second submission that the election did not extend to the neck injury is rejected.

Discussion of State of New South Wales v Taylor [2001] HCA 15. Per Davis AJA, contra:

5. At the time of the election it was too early to conclude that the appellant's condition had stabilised. It later deteriorated as a result of the natural progression of his disorder. ORDERS
   1. Grant leave to the appellant to proceed on the amended notice of appeal filed on 11 May 2001.
   2. Appeal upheld.
   3. Set aside orders of Judge Naughton on 3 November 1999, with the exception of the order relating to the respondent's notice of motion.
   4. Grant leave to the appellant to revoke his election to claim permanent loss compensation in respect of the injury suffered on 18 July 1994 and to commence the proceedings which became those numbered 5199 of 1999 in the District Court of New South Wales.
   5. Respondent to pay appellant's costs of the subject application in the District Court and his costs of the appeal. Respondent to have a certificate under the Suitors Fund Act, if qualified.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40877/99 DC 5199/99

MASON P DAVIES AJA GROVE J Tuesday 11 September 2001

Trevor Lawrence CORCORAN v TYRE MARKETERS AUSTRALIA

1 MASON P and GROVE J: This appeal, by leave, challenges orders made in the District Court which held a plaintiff to an election to accept permanent loss compensation benefits under the Workers Compensation Act 1987 (the Act) in lieu of damages at common law. The right to revoke such an election is limited by s151A of the Act.

The appellant's injury and the relevant medical evidence 2 The appellant (born 1952) worked as a tyre fitter for various employers from 1974 onwards. This required him to handle heavy truck and tractor tyres. He was employed by the respondent at Beaurepairs Goulburn on 18 July 1994 when he suffered injury while changing a truck tyre. He felt immediate sharp pain in the lower back and, as he continued to work, the pain increased and spread to his left leg and arm. 3 The following day he saw his local general practitioner, Dr Storrier. She recommended a few days rest, but he returned promptly to work on light duties, thinking that his back would improve. 4 His lumbar spine was x-rayed and, on 28 July, his general practitioner admitted him to hospital in Goulburn where he remained for three weeks. 5 On 17 August the appellant was referred to Dr Sheehy, a neurosurgeon. Dr Sheehy told him: "Your symptoms should improve over the next 6-8 weeks if you do some physiotherapy. You can't go back to work at this stage". In his report to the general practitioner, Dr Sheehy referred to a complaint of persisting low back pain together with some weakness in the leg and the left arm. On examination, the doctor found mild restriction of back movement and that flexion was painful. The specialist's prognosis and recommended treatment was: I would be very inclined to try conservatively here and he tells me that he is starting to do some work in a pool and I think this is an excellent idea. I feel gradually increasing activity for him is likely to be the answer. If symptoms were to plateau, then further investigation with myelography would be indicated but I would hope that over the next 3-6 weeks he would significantly improve with an exercise program in the pool. I have asked him to keep in touch and of course I would be only too pleased to see him for review if his condition plateaus. 6 There were further problems with the back and left leg and arm. Dr Sheehy recommended myelography and continued rest. 7 Following a myelogram the appellant was admitted to St Vincent's Private Hospital Sydney on 8 October 1994 under the care of Dr Garrick. Dr Garrick recommended further rest and physiotherapy before returning to work (CB 54). 8 On 19 December 1994 the appellant attempted a return to work on light duties but found that he was unable to continue. His pain became significantly worse. 9 On 1 February 1995 the appellant saw Professor Noel Dan, neurosurgeon, at St Vincent's Hospital. On 17 February 1995 he underwent exploration of the left lumbar sacral space and removal of disc protrusion. He spent approximately two weeks in hospital recovering from the operation. When he saw Professor Dan in April his back pain had improved significantly, but there was continuing pain in his left hip, leg and foot. On 21 April Dr Dan reported: On 19.4.95 I was pleased that he reported his pain was 100% better and that he felt like a new man. He still has some numbness in the leg at night and the foot feels as if it is on fire though it eases with mobilisation. Valium has not really helped him and he is also having light physiotherapy and hydrotherapy. The wound itself looked good but he was a little tender to the left of the wound. I commenced him on Clonazepam 0.5mg nocte as an anti-neuralgic medication. Mr Corcoran had a significant lumbar sacral disc protrusion which was demonstrated radiologically and confirmed surgically. His early progress has been reasonable but I think further improvement will occur. From the history given to me I would associate his symptoms with the lifting injury on 18.7.94. The C5/6 osteophyte however is unlikely to have developed in the short time between the date of the injury and the myelogram performed in October 1994 on the history that he did not have cervical symptoms prior to that incident. I think that the role of the osteophyte was that of a pre-existing disorder which was rendered symptomatic by the lifting incident. I am optimistic that those symptoms will improve with time but it is possible that ultimately surgical intervention could be suggested for that as it does reflect encroachment on the spinal cord. At this stage I think our best estimate of his permanent impairment of the back is about 15% to 20% compared with the worse case and attributable to the lifting incident in June 1994. I think that he has about a 10% loss of efficient use in the left leg above the knee incorporating function below the knee. I don't think there is any permanent loss of the use of the right leg. I think there is about 5% loss of efficient use of the left arm but a significant part of that is due to pre-existing osteophyte and perhaps 1/10th of the impairment may be attributable to the lifting incident. 10 In the appellant's words, "My levels of pain and disability increased between May and August 1995" (CB 46. See also CB 25). On the occasions that he saw Professor Dan (during this period) he said words to the effect: "my back, neck, arm and leg pain and what I can do is getting worse, is like it was before the operation". Professor Dan replied with words to the effect: "It will take 12-18 months for your back to stabilise at a lower level of pain" (CB 46). 11 Dr Storrier provided a fairly lengthy report to the appellant's solicitors on 18 May 1995. It is obviously a summary of the medical history stemming from the accident, supplied for litigation purposes. The concluding portion of the report stated: The last visit with me was on 27 April 1995 and Professor Dan has put him off work until he is seen in June, with no work to be attempted until that time. Mr Corcoran will continue to experience back pain off and on throughout his life and will have to continue to be careful of his back. He will no longer be able to return to heavy manual work such as tyre fitting. He is unable to perform any activity of a repetitive bending nature or heavy lifting nature from the time of his initial injury. It is difficult to predict how post laminectomy patients will progress. Occasionally they find they have a further rupture higher up the spine, some progress to lumbar fusion. My hope and wish is that Trevor Corcoran at this stage will be rehabilitated into an administrative type job within the field in which he is experienced, that is of tyre fitting. 12 The appellant went back to Dr Dan on 26 June 1995. According to the doctor's report: … [Mr Corcoran] reported some good and some terrible days… The back is nothing like it was pre-operatively but he still has some bad days and has spasms on occasions….

13 On 21 August 1995 the appellant's employment was terminated because of his inability to work and his current medical condition. 14 On 4 September 1995 the appellant returned to Dr Dan who reported to the appellant's general practitioner in the following terms: On 4.9.95 he reported that he felt pretty good when he was walking but when he lay down he had difficulty sleeping because of pain in his legs. Overall however, the pain is much better than had been pre-operatively. The left sole is numb at times and burning at others. He has been depressed and has commenced anti-depressants, but unfortunately he was put off work from 22.9.95. Norflex is helping him and I thought he should continue with that and he will continue to use a Thermoskin until the weather warms up. He also felt that he had made much better progress with physiotherapy since he had stopped the hydrotherapy. He is walking a lot and I have encouraged him to do so.

15 On 5 September 1995 the appellant was examined by Dr Connelley, neurosurgeon. He was then complaining of "a disorder of sensation, affecting the whole of the left side of the body including neck and upper limb". Dr Connelley's report to the appellant's solicitors sets out the medical history and expressed the following opinion: I believe Mr Corcoran has suffered a spinal injury mainly affecting the lumbar spine in the incident at his work on 18.7.94. This problem has required surgical management which was undertaken by Dr Dan for treatment of a lumbosacral disc lesion, the operation being performed in February 1995. I believe Mr Corcoran is slowly recovering from this surgical procedure and at the present stage he would have difficulty in performing the selected duties suggested in the CRS plan. I believe he could work only limited hours per day with the opportunity to change his position as much as possible.

16 In oral evidence accepted in the court below the appellant said that he had had significant neck pain from the date of the work injury up to the date of his election in October 1995. 17 Contrary to the appellant's expectation when he settled his compensation claim, his medical condition later worsened. In early 1996 the pain in his lumbar spine, neck and left limbs became worse. He returned to Dr Dan. A MRI on the lumbar spine showed nothing to indicate a physical problem with his lower back. Nevertheless, the pain continued to worsen and he went back to Dr Dan in June 1996. Different medication was prescribed but this did not seem to have much effect. Dr Dan continued to tell him that the pain should become less and that it would stabilise over the next 12 months. 18 Following a worsening of pain in about September 1996 the appellant saw Dr Dan urgently on 4 September 1996. The appellant was complaining of severe back pain involving the buttock and left leg. There were also marked symptoms in the left arm and shoulder. The appellant told Dr Dan that these had been a problem from the onset of his symptoms (CB 76). He underwent a MRI and was admitted to Concord Hospital. A C5/6 discectomy was carried out on 6 September 1996. The early post-operative progress was encouraging and Dr Dan reported worthwhile improvement in the arm and the leg (CB 77). 19 On 10 March 1998 Dr Dan performed a laminectomy (L4 and L5). Despite this, the appellant's symptoms continued to worsen. There was further operative treatment by Professor Dan (CB 49). Since then the appellant has received treatment for chronic pain. 20 In October 1998 Dr Storrier provided the appellant's then solicitors with a medico-legal opinion. It states that the appellant's condition had continued to deteriorate since October 1995. (This conclusion is not in issue in the present appeal.) In the course of this report Dr Storrier stated: Neither the cervical or second lumbar laminectomies nor the hospital admission for pain were expected at the time of settlement in 1995. It appeared that with medication and physiotherapy the condition should gradually improve. It has not, it has continued to deteriorate, necessitating the two surgical interventions.

21 Dr Gytis Danta is a neurologist practising in Canberra who first saw the appellant on 26 October 1998. The doctor's report to the appellant's solicitors representing him in the common law proceedings recounted the medical history. The doctor gave the opinion that: The patient's complaints and disabilities are due to degenerative lumbar disc disease with backache and sciatica and cervical spondylosis with radiculopathy. Since he had no relevant symptoms before his lifting accident, this has to be held responsible for all his complaints and consequent disabilities. Clearly the patient's condition deteriorated after October 1995 and he required two further surgical procedures. Fortunately the one on the neck helped him significantly. In my opinion the compensation claim should not have been settled as early as October 1995. The deterioration in his symptoms and disability after October 1995 has to be ascribed to the lifting injury in 1994. Your second point relating to whether there was a reasonable cause to believe that further deterioration would occur after he received the original compensation is difficult to answer. One is dealing with a degenerative condition and, as I stated above, the time between the injury and the settlement was in my opinion too short to consider his condition as stable and not liable to further deterioration.

22 On 16 July 1999 Dr Champion, a physician, reported as to various matters to the appellant's solicitors. He had examined the appellant in March 1999 and had had access to various medical reports, including those of Dr Dan and Dr Storrier. The primary thrust of his report was prospective. However, he said this of present relevance: It does appear on the evidence available, that there has been further deterioration in his medical condition relating to his back, neck, left leg and left arm since October 1995 and that has been fairly clearly documented in reports. Such deterioration is a late consequence of the work place injury in July 1994. Some degree of aggravation or deterioration was, I believe, reasonably foreseeable in October 1995 just as henceforth he remains at risk of substantial worse disorder on relatively moderate provocation, eg a fall or lifting strain. 23 This report is not discussed in the decision under appeal nor was it discussed in oral submissions before us, but it is relied upon by the respondent in its written submissions.

The compensation proceedings 24 On 28 July 1994 the appellant completed a compensation claim. It stated that the accident occurred while he was lifting a tyre and that he suffered injuries to the lower back. 25 On 6 December 1994 he filed an Application in the Compensation Court. It referred to injury to his back, legs and left arm and sought various heads of compensation. 26 On 25 October 1995 the compensation claim was listed at the Goulburn Court House. There were settlement negotiations which culminated in an offer on behalf of the respondent in the sum of $45,000, which the appellant accepted. There was a consent award of permanent loss compensation and interest constituted as follows: 1. $15,648 for 20 percent permanent impairment of the applicant's back. 2. $9,780 for 10 percent loss of use of his left leg at or above the knee. 3. $4,890 in respect of 5 percent loss of use of his left arm at or above the elbow. 4. $14,000 for pain and suffering. 5. $682 for interest.

27 A cheque was paid to the appellant and deposited in his bank account. The payment represents the election from which the appellant seeks to be relieved. 28 Portion of the evidence of the appellant suggests that there was lack of care and skill on the part of his lawyers leading up to the decision to settle the compensation claim. It is clear that the appellant has a grievance on this account. Whether or not it is fairly based does not arise in the present application. The evidence was not tested or challenged.

The common law proceedings 29 In July 1997 the appellant commenced proceedings against the respondent in the Supreme Court of the Australian Capital Territory. The pleadings are not before us, but the claim was for damages based upon breach of the employer's duty of care and perhaps related causes of action. Under the cross-vesting scheme these proceedings were transferred to the Supreme Court of New South Wales and then transferred to the District Court. 30 In September 1999 the respondent filed a notice of motion in the District Court seeking to have the statement of claim struck out on the ground that it disclosed no reasonable cause of action. The appellant countered with a notice of motion seeking leave to revoke his election to receive permanent loss compensation in respect of the injuries received by him on 18 July 1994. 31 The two applications were heard concurrently by Judge Naughton. The evidence before his Honour consisted of affidavits by the appellant and his current solicitor. Medical reports were annexed to these affidavits but none of the doctors was called to give evidence. The appellant gave fairly brief oral evidence, much of it directed to the issue of what he knew or ought to have known at the time when his compensation claim was settled. Such evidence was then perceived to be relevant, in light of this Court's decision in Taylor v State of New South Wales (1999) 46 NSWLR 322. (The recent decision of the High Court in State of New South Wales v Taylor [2001] HCA 15 reversed the Court of Appeal in this regard, but that occurred after the decision in the District Court.)

The decision of the primary judge 32 The appellant required the leave of the Court to revoke his election to claim permanent loss compensation (ie compensation for non-economic loss under Division 4 of Part 3 of the Act) and to commence proceedings against his employer for damages in respect of the injury suffered on 18 July 1994. 33 As it stood at the time of the application, s151A of the Act relevantly provided: (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by accepting payment of that permanent loss compensation or by the Compensation Court making an award in respect of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). … (4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. (5) If: (a) a person elects to claim permanent loss compensation in respect of an injury, and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury. 34 In Taylor (at [33]), Kirby J described the purpose of s151A(5) as being to allow a person, otherwise debarred by election from recovering damages in respect of an injury, to pursue that course where there had been an unexpected deterioration in the person's medical condition. 35 The primary judge found that the appellant's injury was the exacerbation of a pre-existing degenerative spinal condition in both his lower back and neck. He also found that the appellant's left arm problem was referable to the exacerbation of his degenerative cervical spine by the subject incident and that that was known or ought to have been known to the appellant prior to his election in October 1995. 36 He recounted the medical history and made findings accepting the appellant's affidavit evidence. We have set out the material facts in the earlier portion of the judgment. 37 The judge was satisfied that the work injury had caused a further material deterioration in the appellant's medical condition that, had it existed at the time of his election in October 1995, would have entitled him to additional permanent loss compensation. Paragraphs (a) and (b) of s151A(5) had been satisfied in the appellant's favour. 38 The critical question was and remains whether par (c) was satisfied. That required the appellant to show that: … at the time of the election, there was no reasonable cause to believe that the further deterioration would occur.

39 His Honour referred to Taylor's Case in this Court. He observed that the majority (Giles JA and Shepherd AJA) held that the word "would" in s151A(5)(c) should be construed definitely rather than subjunctively ("will" rather than "might"). In particular, he cited Giles JA who had said (at 332) that: … the effect of par (c) is that it must be asked whether a reasonable person knowing what was known or ought to have been known to the worker would expect the further deterioration in fact suffered by the worker as something more probable than not. If the answer is "no", par (c) is satisfied.

40 His Honour expressed his conclusions in the following terms: On the facts of the present case as I have outlined them, and applying the above test, I find that at the time when the applicant made his election in October 1995 a reasonable person knowing what was known or ought to have been known by the applicant would have expected the further deterioration in fact suffered by the applicant as something more probable than not. Accordingly, I find that para (c) of s151A(5) is not satisfied in this case. The fact that at October 1995 the applicant was a 43 year old man, who had been doing bending and lifting work in a tyre fitting occupation involving trucks and tractors back to 1974, and before that various labouring work back to 1966, and had not responded satisfactorily to treatment for the exacerbation on 19 July 1994 of his then degenerative back and neck condition logically gives rise to my said finding of ultimate fact. In my opinion a reasonable person knowing the medical opinions as I have set them out above would have expected the further deteriorations which were in fact suffered by the applicant as something more probable than not.

41 There seems to be no reason his Honour's reference to "the medical opinions as I have set them out above" in the concluding sentence should not be read as referring to the totality of the medical evidence. This said, it should be noted that his Honour commented specifically on the two most recent medical opinions, namely those of Dr Storrier of 22 October 1998 (par 20 above) and Dr Danta of 27 October 1998 (par 21 above). In relation to Dr Storrier's opinion, the judge said: Dr Storrier is a GP, not a neurosurgeon or neurologist. I find that there is no sufficient basis for the first two sentences of her above quoted remarks. I think it is inconsistent with the applicant's symptoms up to the time of election in October 1995 and with Dr Dan's and Dr Connelley's opinions expressed up to then. In any event her remarks relate to treatment rather than to physical condition. It is physical condition, not treatment, which is the criterion specified in paragraph (c) of s151A(5) of the Act.

He described Dr Danta's 1998 views as a "more impressive ex-post facto medical opinion" and expressly accepted that opinion. 42 The appellant's notice of motion was therefore dismissed and the originating application that had been filed in the Australian Capital Territory Supreme Court was ordered to be struck out. The respondent's notice of motion was dismissed, presumably because it was of no continuing utility.

Issues in the Court of Appeal 43 The appellant pressed two issues. First it was submitted that the judge erred in concluding on the medical evidence that, at the time of the appellant's election, there was reasonable cause to believe that further deterioration would occur. The Court was invited to determine the matter afresh, not to remit. Secondly it was submitted that the appellant's election did not extend to a neck injury.

The impact of the High Court decision in Taylor 44 In its recent decision in Taylor, the High Court (by majority) held that s151A(5)(c) requires the court to determine whether it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur. The reasonable cause for belief is determined by reference to the evidence before the court concerning the applicant's condition at that time and expert opinion as to what the medical prognosis for that condition was at that time. What the applicant knew or ought to have known is irrelevant. If the court determines that it would not be unreasonable for a person to believe that the further deterioration would occur, the application for revocation fails (see judgment of Gleeson CJ, McHugh and Hayne JJ at [4]). 45 It was common ground before us, and correctly so, that the expert opinion upon which the medical prognosis for an applicant's condition was at the time of his or her election could include medico-legal opinion given ex post referable to the stated issue. In Taylor the majority said (at [12]) that: … the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time.

46 Taylor makes it clear that the onus rests upon the applicant for leave (see esp at [12]). 47 The following passages in the majority judgment cast further light upon the judicial task(citation omitted): 13. Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated.

14. In determining the issue of "no reasonable cause to believe", the court does not determine whether, as a matter of probability, there was cause to believe that the further deterioration would occur. To approach the section in that way is to invert the negative proposition that it contains. On the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur. If there was, the application for revocation fails. If on the whole of the evidence, whatever its source or sources, the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails. It is irrelevant that, on the same body of evidence, it would also be reasonable to believe that the further deterioration would not occur. In a case where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur.

15. …. It is true that the notion of "reasonable cause", although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable nor unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments. In par (c), "no reasonable cause to believe" means "no cause for reasonably believing"…. 48 In the concluding portion of the joint judgment, their Honours considered what to do with the case before them in light of the fact that the correct test had not been applied by the Supreme Court or the Court of Appeal. They recognised (at [23]) that if there had been any doubt about the credibility of the medical experts in the case, it would have been appropriate to remit the matter. However, the parties had conducted the case in the Supreme Court on the basis that the opinions of the various doctors were honestly held. That being so, the High Court decided that it should not put the parties to the cost of a further hearing (see at [23]). Their Honours then addressed the particular evidence in the case before them and, in light of that evidence, held that the worker had failed to satisfy the requirements of s151A(5)(c) ([24]-[25]). 49 We do not see this portion of the reasoning in the High Court to cast much light upon the present case, except as an indication of an appropriate course for an appellate court to adopt if the primary judge proceeded on an erroneous approach to the statutory task. The passage at [24]-[25] in Taylor deals with a specific factual context which is not set out fully in the High Court judgment. To the extent that it is, we would distinguish Taylor because the pre-election opinions in Taylor did not express an expectation that the plaintiff's condition would improve.

Analysis of the first issue 50 It was common ground that the decision below had proceeded on the false basis of the approach sanctioned by the Court of Appeal in Taylor. It was equally common ground that this had little or no impact upon the primary judge's reasoning. Both sides joined in asking this Court not to remit, but to determine the matter afresh if persuaded of error. 51 The appellant accepts that he bears the onus of satisfying the Court that, at the time of the election, there was no cause for reasonably believing (cf Taylor at [15]) that the further (material) deterioration in his medical condition that was found to have occurred would occur. 52 Essentially, the appellant relies upon the favourable or neutral prognoses offered by the treating doctors prior to October 1995; and he challenges the manner in which the trial judge dealt with the 1998 opinions of Drs Storrier and Danta. 53 The respondent's case, in essence, is that the treating doctors were appropriately guarded or non-committal in their actual prognoses as at October 1995 and that this was understandable in view of the nature and extent of the appellant's injury and the recency of operative intervention in February 1995. The respondent further submits that the primary judge was entitled to assess the 1998 opinions in the way that he did. It also appears to rely on Dr Champion's 1999 opinion. The respondent also placed particular emphasis upon the passage in Taylor (at [14]) set out above where the majority justices stated that in a case where the evidence admits of two reasonable, but opposing conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur. 54 The respondent pointed to the following features: firstly, the nature of the underlying pathology that resulted from the injury; secondly, the nature of the symptoms that emanated out of the pathological change in the appellant's lumbar spine, separate from but related to the underlying pathological or physical disruption to the disc; thirdly, the vulnerability or risk of further damage established by virtue of the injury and surgery; fourthly, the short lapse of time between the surgery in February 1995 and the election date. 55 It was submitted that all of these factors preclude there being no cause for reasonably believing that the further deterioration would occur. 56 In the present case the trial judge accepted the appellant's evidence as to his medical history: the critical facts are set out in our summary. No credibility issue arose with respect to the various medical opinions. The parties were agreed that this Court was in as good a position as the trial judge in applying the proper approach to par (c) (as shown by the High Court) to the facts. 57 The learned trial judge was obliged to, and did, proceed in accordance with the majority judgment of the Court of Appeal in Taylor and its subsequent overruling imputed error. It is apparent, as Davies AJA has observed, that the evidence adduced by the parties at trial was not directed to the correct test enunciated by the High Court. 58 It therefore follows that, in the ordinary course, the appeal would have been allowed and the matter remitted for rehearing. The existence of error in the sense that we have mentioned was not in contest. Insofar as counsel for the respondent sought that the appeal be dismissed, it was on the basis, as we understood his submission, that the evidence inevitably required the same result as was reached at trial irrespective of whether the subsequently disapproved or later established test was applied. 59 If that submission were to be rejected, it was the joint request of the parties that the matter be dealt with afresh in this court. In that particular circumstance, we would not regard general inhibitions upon appellate intervention as applicable. In Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 Barwick CJ observed: No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo.

And see Warren v Coombes (1979) 142 CLR 531. 60 The joint request of the parties related to rehearing not to appeal. If the ordinary course of remitter were followed the issues would be dealt with in accordance with the determinations of the court of retrial on the evidence before it uninhibited by the incidents of the prior hearing. The invitation of the parties was for this court to rehear the matter upon evidence which, by agreement, was to be the evidence adduced at the first hearing. This did not import the judgment previously delivered in relation to that evidence. 61 When the question of possible rehearing (in the District Court) was raised, senior counsel for the appellant stated: The view we take is that this court can deal with the case on the evidence because we say the evidence - even if the test was the current Taylor test - which we would have put before the court is the evidence of objective opinion and other matters as at the date of election, and that is all before the court now.

Senior counsel for the respondent informed the court: Our instructions are that if the court were to uphold the application and consider it appropriate to deal with the matter, we have no objection to that course. 62 It is true that there was no detailed examination of the precise scope of the agreement of the parties implicit in the joint request but, for our part, we do not infer that the parties intended that the appellant should have the burden of displacement of the initial fact finding. If, however we are wrong about this, we are persuaded to a view contrary to that reached by the learned trial judge. 63 We consider that "dealing with the case on the evidence" should be understood as hearing the matter de novo. Given the express terms of the request of both parties, the approach which we favour would not run counter to principles stipulated in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. 64 In October 1995 when the appellant settled the workers compensation proceedings, the problems with his back and left limb were "continuing" (CB 46). He had lost his employment in August. Nevertheless, he: believed that my symptoms would improve with time and that I would be able to return to work in the future. This is what I had been told by Professor Dan and Dr Storrier. At this time I did not think that my condition would worsen, or that I would need further operations on my back or my neck, or that I would not be able to return to work in the future. (CB 48) 65 Taylor makes it clear that the worker's belief is not relevant to the presently critical issue. Nevertheless, the appellant's evidence of what he was told by his treating doctors is evidence of their opinions at the time, to be considered together with their written reports. 66 The important period is after February 1995. Events and prognoses before February 1995 are of little weight standing alone, because the operative intervention that month (par 9 above) was an important watershed. 67 Dr Dan reported on 21 April 1995 that the appellant's early post-operative prognoses had been reasonable and "I think further improvement will occur". 68 The appellant's pain and disability increased between May and August 1995 and he reported this to Dr Dan. He was, however, assured by Dr Dan that it would take 12-18 months for his back to stabilise at a lower level of pain. Likewise, Dr Connelley reported on 5 September 1995 that he believed the appellant was "slowly recovering" from the February surgery. Nothing in the opinion of Drs Storrier, Dan and Connelley in the period May-September indicated any belief on the doctors' part that the condition would worsen. Explicitly or implicitly their opinions were to the contrary. We do not understand that anything they wrote subsequently qualified these prognoses as at October 1995. 69 None of the treating doctors suggested the probability of further material deterioration in the appellant's medical condition. 70 The respondent submitted that the silences of the medical reports of 1995 are pregnant. It submitted that the doctors were unwilling to express any prognoses at this period, because it was too soon after the February surgery. We do not agree that their reports should be construed as if they bore a cloud of pessimism or reserve. Sometimes they were silent or neutral, but in a context where one would have expected them to have expressed opinions as to probable or likely deterioration if they actually held them. At other times they were positive in outlook. The doctors were aware of the medico-legal context in which they were treating the appellant at this time. 71 The objective test adopted by the High Court in Taylor does not direct attention away from identifying clearly how the "medical condition" stood at the time of the election. Nor does the availability of later medico-legal opinion detract from the vital relevance of the informed opinions of the patient's treating doctors at the time. 72 We do not read the post-election opinions of the treating doctors as conceding any error in their assessment as at late October. Dr Dan was continuing to assert that the problem would stabilise and improve when he was consulted in June 1996 with a history of worsening pain. 73 As indicated, Dr Storrier reported in October 1998 that: Neither the cervical or second lumbar laminectomy nor the hospital admission for pain were expected at the time of settlement in 1995. It appeared that with medication and physiotherapy the condition should gradually improve.

74 Judge Naughton did not suggest that the general practitioner should be disbelieved in regard to her own expectations at that time. He was entitled to qualify his acceptance of her opinion on the basis that "Dr Storrier is a GP, not a neurosurgeon or neurologist". But it is a further step to find, as he did, that there was no sufficient basis for the opinion. 75 His reason for doing so was that he thought the opinion was inconsistent with the appellant's symptoms up to the time of election in October 1995 and with Dr Dan's and Dr Connelley's opinions expressed up to then. 76 We do not agree. Our reading of the opinions of the treating specialists in the latter part of 1995 is that they were then of the view that, more probably than not, the appellant's condition would improve. Furthermore, nothing suggests that they ever revised their optimistic prognoses as at the time of the appellant's election. 77 Another reason given by Naughton DCJ for disregarding the 1998 opinion of Dr Storrier was that her remarks related to treatment rather than to physical condition. In our respectful opinion this misunderstands what Dr Storrier was saying in the two sentences of her October 1998 opinion set out above. 78 Judge Naughton regarded Dr Danta's 1998 opinion as a more impressive ex post facto medical opinion than that of Dr Storrier. Of course, Dr Danta is a specialist and Dr Storrier a general practitioner, albeit that she was the appellant's treating general practitioner over a lengthy period of time. However, the task for the Court is to determine the issue on the totality of the medical evidence before it, none of it having been subjected to cross-examination. It is not a simple contest between the two 1998 opinions of Dr Storrier and Dr Danta. 79 On the presently critical issue, Dr Danta said that the question was "difficult to answer". The answer, such as it was, that Dr Danta gave was: One is dealing with a degenerative condition and, as I stated above, the time between the injury and the settlement was in my opinion too short to consider his condition as stable and not liable to further deterioration. This of course is evidence to be put on the scales. But it is a very guarded opinion. The real thrust of Dr Danta's view is that the appellant should have waited longer before making his election, but that is not the present issue. 80 Dr Champion's is a stronger opinion and it clearly favours the respondent's case. It is surprising that it was not discussed in the judgment below. It needs to be put in the balance of evidence upon which the Court reaches an ultimate conclusion. 81 It is convenient at this stage to address the submissions of the respondent based upon par [14] of the majority judgment in Taylor (set out at par 47 above). In one of its manifestations, the respondent's submission drifted towards the proposition that the existence of some medical evidence indicative of probable deterioration meant that the appellant cannot prove the negative proposition required to be established. 82 It bears remembering that the ultimate issue is determining whether there was no cause for reasonably believing that the further (material) deterioration would occur. It is "would" not "could". The focus is upon a material deterioration because the definite article in the phrase "the further deterioration" in (c) points back to the words "a further material deterioration in the person's medical condition" in par (b) of the subsection (see also Taylor at [65]-[67] per Kirby J). 83 Paragraph [14] of the joint judgment in Taylor does not state that the mere existence of evidence favouring the employer on the critical issue spells doom to the application. Rather, it speaks of evidence which "admits of two reasonable, but opposing, conclusions" (emphasis added). The determination is to be made "on the whole of the evidence, whatever its source or sources" (Taylor at [14]). If, in light of the total evidence the issue is equipoised in the sense that "the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails" (ibid, emphasis added). 84 Merely because there is credible medical evidence against an applicant on the issue raised by s151A(5)(c) (on which the applicant bears the onus) does not mean that the applicant must fail. A tribunal of fact is capable of reaching a conclusion, even one beyond reasonable doubt, notwithstanding evidence to the contrary. It happens every day in the criminal courts and it can certainly happen where there is a clash of expert opinion in a civil case. 85 It would be a bold doctor who did not concede the possibility that his or her optimistic prognosis in a particular matter might not be falsified by later events. But such concession does not prevent a generally favourable prognosis from assisting an applicant seeking to revoke an election. 86 Surveying the totality of the evidence we are persuaded that the appellant sustained the burden which lay upon him. Viewed contemporaneously and with the benefit of expert hindsight, the signs of steady improvement were favourable as at October 1995. There was no reasonable cause to believe that the further deterioration that later occurred would occur. Everyone's hopes and expectations were falsified by later events, but that provided the context in which the present question came to be addressed, not the answer to that question.

Analysis of the appellant's second issue 87 There is no substance in the second broad ground of appeal. 88 The appellant points to the compensation claim of 28 July 1994 in which the following presently relevant details of the injury of 18 July 1994 were given: What injury(ies) did you suffer? (eg fracture) Lower back What parts of the body were affected? (eg upper arm, lower back) Back 89 The subsequent Application for Determination referred to Injury to back, legs and left arm. 90 The appellant submits that the election of October 1995 is similarly confined and that it does not bar a damages claim referable to his neck, notwithstanding that it is based on the same workplace incident as that giving rise to the admitted compensation claim. 91 We reject that submission. By the time that the appellant launched his common law proceedings he was claiming that the workplace injury was a cause of the disabling pain he was experiencing in the neck area. There was evidence capable of establishing that connection (eg CB 23-4, 46, 82). But the significant point is that the allegation was an integral part of his claim in the common law proceedings. 92 At issue in the District Court was the appellant's right to seek damages "in respect of the injury" (cf the concluding words of s151A(5)). Subsection (5) itself distinguishes between "the injury" and the further material deterioration in the applicant's medical condition caused by that injury. The distinction between injury and entitlement to compensation is commonplace in the Act and workers' compensation generally (see Fisher v Hebburn Ltd (1960) 105 CLR 188 at 202-3, Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 at 327). 93 By the time that an award was made in the compensation proceedings the appellant had come to assert that the injury had caused loss of the use of his left arm (CB 58). Medical evidence based on histories from the appellant suggested that this pain radiated into the neck area (CB 46). 94 The Compensation Court is not a court of strict pleading. As a matter of historical fact the election was intended to encompass the totality of disability stemming from the workplace injury. Absence of a specific award for neck pain is explicable by the fact that no one saw it as a distinct problem. A procedural postscript 95 This Court constituted by Mason P and Meagher JA gave leave to appeal on 13 November 2000. At that stage Taylor's Case stood reserved in the High Court. Leave was granted with respect to a particular form of notice of appeal (cf Supreme Court Rules Pt 51 r4B(1)(f)). The notice of appeal that was filed on 27 November 2000 was according to that leave. 96 Following the High Court decision in Taylor and apparently with the consent of the respondent, the appellant filed an amended notice of appeal on 11 May 2001. The amendments went beyond acknowledging the impact of Taylor upon one of the key grounds of appeal. In fact fresh grounds of appeal were added. 97 As senior counsel for the appellant frankly accepted, this should not have occurred without the further leave of the Court or at least the matter being drawn specifically to the attention of the Registrar. A grant of leave pertains to a particular set of grounds of appeal which must be identified in the draft notice of appeal considered by the Court granting leave. Any amendment that adds to the grounds is outside the existing grant of leave. 98 As indicated the appellant accepted this and applied for the necessary leave to prosecute the notice of appeal in its ultimate form.

Disposition 99 The respondent did not advance any residual ground for refusing leave pursuant to s151A(5). 100 We propose the following orders: 1. Grant leave to the appellant to proceed on the amended notice of appeal filed on 11 May 2001. 2. Appeal upheld. 3. Set aside orders of Judge Naughton on 3 November 1999, with the exception of the order relating to the respondent's notice of motion. 4. Grant leave to the appellant to revoke his election to claim permanent loss compensation in respect of the injury suffered on 18 July 1994 and to commence the proceedings which became those numbered 5199 of 1999 in the District Court of New South Wales. 5. Respondent to pay appellant's costs of the subject application in the District Court and his costs of the appeal. Respondent to have a certificate under the Suitors Fund Act, if qualified. 101 DAVIES AJA: The facts and issues are described in the reasons for judgment of the President and Grove J. I need not repeat them. 102 Section 151A(5) of the Workers Compensation Act, 1987 provides that a person may, with the leave of the court, revoke an election to claim permanent loss compensation if, inter alia:- "(c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur," .

In State of New South Wales v Taylor [2001] HCA 15, the majority of the Court, Gleeson CJ, McHugh and Hayne JJ, interpreted this provision to require the court to determine:- "… whether it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur." 103 In the Court of Appeal in that case, Giles JA, with whom Sheppard AJA agreed, had held that the provision required that it be asked:- "… whether a reasonable person knowing what was known or ought to have been known to the worker would expect the further deterioration in fact suffered by the worker as something more probable than not."

Handley JA dissenting, considered the question to be whether:- "… there was some reasonable cause to believe that it [the further deterioration] would or might occur." 104 In the High Court decision, Gleeson CJ, McHugh and Hayne JJ did not query the view of Giles JA and Sheppard AJA that the term "belief" meant a belief of something more probable than not. Gleeson CJ, McHugh and Hayne JJ consistently throughout their reasons for judgment used the expression "would occur", without suggesting that, in that part of their reasoning, Giles JA and Sheppard AJA were wrong and without suggesting that it was sufficient that deterioration might occur. Their Honours differed with the majority in the Court of Appeal, however, in that they were of the view that the issue was to be considered in objective and impersonal terms. Their Honours held at [13]:- "Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive." 105 On the facts before the Court, Gleeson CJ, McHugh and Hayne JJ held that the worker was not entitled to withdraw his election. Their Honours referred to three relevant medical reports. Dr Nott said that the worker, "may improve, or deteriorate". Dr Sengupta said that the "long term prognosis, at this stage, remains guarded, as his condition may deteriorate". Dr Evans said that the prognosis "is uncertain". 106 On these medical reports and in light of the evidence concerning the worker's further deterioration, their Honours held that the worker had failed to prove that, at the time he made his election, "there was no reasonable cause to believe that the further deterioration would occur". 107 It will be seen that their Honours took account of the further deterioration which had in fact occurred and expressed the view that the worker had failed to satisfy the onus of proof which lay upon him to show that the provisions of s 151A(5)(c) were satisfied. 108 Their Honours' reference to the onus of proof is important for it throws emphasis upon the words "no reasonable cause" in s 151A(5)(c). As the medical reports demonstrated that there was a cause or causes for thinking that the condition might deteriorate, then, in the context that such deterioration in fact occurred, their Honours considered that the worker had not satisfied the onus of proof of demonstrating that there was no reasonable cause to believe that the further deterioration would occur. 109 Necessarily, in future applications, it is likely that the evidence put before the Court will deal directly with the issue as to whether it would be unreasonable for a person to believe that the deterioration, which in fact occurred, would occur. In my opinion, that is an issue on which expert medical evidence, dealing with the significance of the worker's condition at the time of the election and the medical reports at that time, could be adduced. 110 In the present case, because the test enunciated in Taylor was not the test to which the parties directed their evidence in the trial, it may have been appropriate to remit the matter for rehearing. However, counsel for both parties have requested this Court to deal with the matter on the evidence as it stands. 111 The evidence is described in the reasons of the President and Grove J. I need set out only such aspects of the evidence as appear to me to be particularly relevant. Mr Corcoran suffered pain after his lifting injury on 18 July 1994. Associate Professor Dan, a neurosurgeon, operated on 17 February 1995 and, for a short time, Mr Corcoran's condition improved. However, as Mr Corcoran said in his affidavit, "My levels of pain and disability increased between May and August 1995". Mr Corcoran agreed, in cross-examination, that there had been "a gradual process of deterioration of the back". His evidence as to the position in October 1995 was as follows:- "Q. And that was the situation, wasn't it, in October of 1995, some days you were better, some days you were worse, would you agree with that? A. Yes." 112 Professor Dan and Mr Corcoran's general practitioner, Dr Storrier, both hoped that Mr Corcoran's condition would improve, but they foresaw the possibility of future problems. Professor Dan's report of 21 April 1995 referred to the C5/6 osteophyte and said:- "I am optimistic that those symptoms will improve with time but it is possible that ultimately surgical intervention could be suggested for that as it does reflect encroachment on the spinal cord."

Dr Storrier's report of 18 May 1995 stated:- "It is difficult to predict how post laminectomy patients will progress. Occasionally they find they have a further rupture higher up the spine, some progress to lumbar fusion." 113 Later reports of Dr Champion, a physician, and of Dr Danta, a neurologist, were less optimistic. A report of 16 July 1999 of Dr Champion said:- "It does appear on the evidence available, that there has been further deterioration in his medical condition relating to his back, neck, left leg and left arm since October 1995 and that has been fairly clearly documented in reports. Such deterioration is a late consequence of the work place injury in July 1994. Some degree of aggravation or deterioration was, I believe, reasonably foreseeable in October 1995 just as henceforth he remains at risk of substantial [ly] worse disorder on relatively moderate provocation, eg a fall or lifting strain."

It appears from these remarks that, in Dr Champion's view, the deterioration in Mr Corcoran's condition, which occurred after the election, was deterioration of a kind which should have been foreseen at the time of the election. 114 In a report dated 27 October 1998, Dr Danta, said:- "Clearly the patient's condition deteriorated after October 1995 and he required two further surgical procedures. Fortunately the one on the neck helped him significantly. In my opinion the compensation claim should not have been settled as early as October 1995. The deterioration in his symptoms and disability after October 1995 has to be ascribed to the lifting injury in 1994. Your second point relating to whether there was a reasonable cause to believe that further deterioration would occur after he received the original compensation is difficult to answer. One is dealing with a degenerative condition and, as I stated above, the time between the injury and the settlement was in my opinion too short to consider his condition as stable and not liable to further deterioration." 115 It will be noted that Dr Danta was of the view that Mr Corcoran suffered from a degenerative condition which was liable to further deterioration and that the period of time between the injury in July 1994 and the settlement in October 1995 was too short a time to justify a conclusion that the condition had, by then, stabilised. 116 The trial Judge expressed his acceptance of Dr Danta's opinion. His Honour said:- "… a reasonable person … would have expected the further deterioration in fact suffered by the applicant as something more probable than not."

His Honour went on to say:- "The fact that at October 1995 the applicant was a 43 year old man, who had been doing bending and lifting work in a tyre fitting occupation involving trucks and tractors back to 1974, and before that various labouring work back to 1966, and had not responded satisfactorily to treatment for the exacerbation on 19 July 1994 of his then degenerative back and neck condition logically gives rise to my said finding of ultimate fact. In my opinion a reasonable person knowing the medical opinions as I have set them out above would have expected the further deteriorations which were in fact suffered by the applicant as something more probable than not ." (emphasis added) 117 In coming to his view, his Honour did not address the precise issue enunciated in Taylor. Nevertheless, his Honour's finding of fact necessarily encompassed a finding that it would not have been unreasonable for a person to believe that the further deterioration would occur. 118 In my opinion, his Honour's judgment should not be disturbed. Mr Corcoran suffered from a degenerative condition which was liable to further deterioration. At the time of the election, it was too early to conclude that his condition had stabilised. It later deteriorated as a result of the natural progression of his disorder. I am not satisfied, and his Honour was not satisfied, that, "there was no reasonable cause to believe that the further deterioration would occur", to use the words of s 151A(5)(c), or that "it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur", which was the issue posed by Gleeson CJ, McHugh and Hayne JJ. 119 I would dismiss the appeal with costs. **********

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