Edwards v McSaveney & Anor [2005] VSCA 252

1 I will invite Ashley, J.A. to deliver the first judgment.

2 Before the Court, in form, is an appeal against orders made by a County Court judge on 17 September 2004 by which his Honour dismissed an application made by the putative appellant under s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act"). It is not in debate, however, that Craig Edwards, the unsuccessful party below, requires leave to appeal. The matter proceeded before this Court on the basis that leave to appeal was sought; and, in the event that leave was granted, that the appeal be determined. In the circumstances it is convenient to refer to Mr Edwards as the applicant.

3 Before the court at first instance there was, in addition to Mr Edwards's application, a summons issued by the respondents, David and Rosemary McSaveney, which sought an order that the application be struck out or permanently stayed in reliance upon s. 135AC of the Accident Compensation Act. The learned judge decided that the respondents' summons was incompetent, but that he could consider s.135AC in the context of determination of the s.135A(4)(b) application. His Honour was right to conclude that s.135AC should be considered; but on proper analysis it ought to have been considered in the context of the respondents' summons. [1]

4 Before going on, it is convenient to set out s.135AC. Thus -

"Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced -

(a) subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or

(b) if the cause arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known."

5 His Honour was satisfied, to the necessary extent, that the applicant had suffered compensable injury to his low back on 26 February 1997 in his employment by the respondents as a tyre fitter. He was also satisfied that, at time of trial, the applicant suffered from a serious injury to his low back. There was, he said, "overwhelming evidence" to that effect.

6 It was common ground that the applicant had made an application for a determination of degree of impairment pursuant to s.135A(2B) of the Act on 13 February 2003. So, if s.135AC(b) applied, the question was whether the applicant had satisfied the judge that he had not known, before (probably) 12 February 2000, that he had suffered "serious injury incapacity."[2] In that connection, it has been decided that knowledge means the subjective knowledge of the worker; not suspicion or knowledge as objectively assessed.[3]

7 The judge found - it is implicit in his reasons - that the applicant had not known that he had sustained serious injury incapacity until after 12 November 1997. That finding brought s.135AC(b) into play.

8 His Honour also found that the applicant had knowledge of pertinent circumstances in August 1998; and by mid-1999. The application for a determination of impairment having been made on 13 February 2003, then if those findings could not be successfully attacked, the application under s.135A(4)(b) was doomed to failure, at whatever point s.135AC was brought to account.

9 In pursuit of the application for leave to appeal and the appeal, reliance was placed upon the following grounds -

"2. Alternatively, the learned trial Judge erred in law in construing s.135AC(b) of the Act.

3. The learned trial Judge erred in holding that the Appellant knew that he had an incapacity which in law would be sufficient to give rise to a 'serious injury' prior to 13 February 2000 in circumstances where the Appellant was able to continue in employment, with a view to increasing his employment options, until 14 September 2001 at which time he was forced to cease employment entirely because of increasing symptoms in his back condition.

5. The learned trial Judge erred in finding that the incapacity of the Appellant and its extent must have been known by him."

10 The submissions for the applicant particularly focussed upon the following passage in his Honour's reasons:

"In my judgment, the plaintiff knew well before 13 February 2000 that he was permanently disabled by his back injury from manual work involving heavy lifting and repetitive bending and was permanently incapacitated from earning salaries in the vicinity of $40,000 odd which he had in the past, although not during the employ of the defendants. Moreover, the medical opinions at that time were consistent with the plaintiff's knowledge. On that account he was aware of facts which, in my view would constitute a serious injury incapacity."[4]

11 The passage was said to show, first, that the judge had erred in point of principle by considering not what the applicant had known, but what he believed the applicant had known; and second, that the judge had not addressed the question how the applicant had viewed the nature and extent of his incapacity.

12 I go to the first of those issues. The opening words in the impugned paragraph - that is, "in my judgment" - were no more than a lead-in to his Honour's conclusionary finding that the applicant had particular knowledge concerning the serious injury incapacitating effects of his compensable injury well outside the relevant three-year period. That conclusionary finding was based upon evidence given by the applicant as noted by his Honour in the paragraph immediately preceding the impugned paragraph. To this point I see no fault in what his Honour said.

13 Later in the impugned paragraph the learned judge referred to medical opinions at the time - that is, 1998 and 1999 - being consistent with the applicant's knowledge. His Honour then said -

"On that account [the applicant] was aware of facts which, in my view would constitute a serious injury incapacity."

14 Contrary to the submission made by Mr Kennan, senior counsel for the applicant, I do not take his Honour to have thereby applied an objective test to the applicant's knowledge; or to have elevated possible suspicion on the applicant's part to knowledge. For the purposes of s.135AC(b), the applicant had to satisfy his Honour that he did not know of serious injury incapacity arising from the compensable injury before 12 February 2000. The applicant gave evidence in his own words, not in the language of the Act; still less, in the language of the Act as interpreted by this Court. His Honour had to decide whether what he found to be the applicant's actual knowledge about the incapacitating effect of his injury - which, as might be expected, rested largely upon the applicant's evidence - meant that the applicant had failed to establish that he had made a s.135A(2B) application before the expiry of three years after the date of the incapacity becoming known to him. What his Honour did, in effect, was to hold that the applicant's evidence of circumstances of which he had known showed that he had known that he had a serious injury incapacity before 12 February 2000. His Honour cross-checked that conclusion, as it were, by reference to the opinions of the doctors.

15 It would have been wrong for the judge to conclude that it followed - assuming the doctors' opinions were to the effect that the applicant's compensable injury met the serious injury test well before 2000 - that the applicant, knowing that he suffered from the symptoms which informed those opinions, must be taken to have known that he was suffering from serious injury; or that he must be taken to have known such a thing if the doctors were shown to have offered him a gloomy prognosis. But I do not think that the judge reasoned in that way.

16 In the event, I consider, subject to a matter which I will discuss in the context of the second issue raised for the applicant, that the judge approached the matter correctly in point of principle. That takes me to the second issue, which has, in turn, two aspects. Expressed as questions they are: first, did the circumstances known to the applicant, to which his Honour referred, lead to a conclusion that the applicant had not brought the s.135A(2B) application "before the expiration of three years after the date the incapacity became known"? Second, did the burden of the applicant's evidence contra-indicate the judge's conclusion because that conclusion failed to take into account the applicant's evidence as to his perception of the nature and extent of his incapacity?

17 Before going further, this should be said: the findings made by the learned judge as to the particular matters which the applicant knew are not themselves challenged. Challenge would have presented an impossible task. The findings, which I now set out, were a replication of parts of the applicant's evidence.

". . . the plaintiff, under cross-examination, conceded that when he commenced work with Wilson Parking in August 1998 he accepted that he would never be able to go back to tyre fitting work because of the condition of his back. He was able to do car-parking attendant work because of opportunities to get out of the booth and walk around during more quiet periods. He knew he had to be careful while performing his work with Wilson Parking. He knew that heavy work of the type he had been performing with Hoppers Crossing Tyres was out and he would never be able to go back to it, much as he would want to. He also knew that he would never be able to go back to the type of work he had performed with Western Bandag which enabled him to earn $44,000 gross per annum, which was considerably more than he was able to earn with Wilson Parking. In the period between 31 July 1997 and the end of 1999, he had been receiving physiotherapy treatment twice a week and there was no indication that his overall condition was improving in any way. . . . he agreed that it was apparent to him by mid-1999 that golf was out, i.e. that he had to give it up, as he could not even walk nine holes, as much as he enjoyed the game, and at the very least since June 1997 he had to be careful playing with his daughter or lifting her or chasing her around because of his back."[5]

18 Concerning the first aspect of the second matter raised for the applicant, the judge would have erred had he assessed the applicant's evidence against a wrong understanding of serious injury incapacity. In the case of "injury" alleged to fall within paragraph (a) of the definition of "serious injury" in s.135A(19) - that is, "serious long-term impairment or loss of body function" - the test described by Crockett and Southwell, JJ. in Humphries v Poljak[6], though in the context of a provision of the Transport Accident Act 1986, remains in point:

"To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'"?

19 That passage, of course, set out a template by which a judge will be assisted in determining whether injury was or was not serious in a particular case; "assisted", because the template did not replace the relevant words of the Act. In the application of those words, it has been said, elements of fact, degree and value judgment are involved.[7]

20 On its face, s.135AC presents a somewhat more complicated problem. The judge has to decide the worker's state of knowledge, as a circumstance subjective to the worker. That, see Paget, is a question of pure fact. The judge then has to decide whether that state of subjective knowledge reveals knowledge, not of "serious injury," but rather knowledge of "incapacity arising from the injury," the latter having been interpreted in this Court to mean not a temporary incapacity for work produced by the initial trauma, but rather the serious injury incapacity which becomes known when events demonstrate that the worker is suffering from a serious long-term impairment or loss of body function; such incapacity not being confined to incapacity for work.[8] The distinction is, however, more apparent than real in the case of s. 135AC(b). Callaway, J.A. made that point in Paget when he said that -

"the fact of serious long-term impairment or loss of body function must become known to the worker."[9]

21 It follows from what I have said that in concluding whether circumstances which a judge finds were actually known to the worker mean that the worker subjectively had knowledge of serious injury incapacity, the judge's task involves application of a template which contains elements of fact, degree and value judgment in the characterisation of that subjective knowledge.

22 A judge would fail in the necessary task not only if he or she could be shown to have made wrong findings as to a worker's state of actual knowledge at a particular time, but also if it was demonstrable that the judge's conception of serious injury was wrong in principle.[10] But absent wrong findings, or error in point of principle, there must be difficulty in successfully attacking a judge's conclusion that a worker's actual knowledge at a particular time was or was not knowledge of, in effect, serious injury.

23 In the present case there is nothing to indicate that the learned judge applied some wrong understanding of what is comprehended by serious injury incapacity. Rather the contrary, having regard to his Honour's citation of authorities including Humphries and passages in two other cases which particularly focused on economic incapacity.[11]

24 Further to the first aspect of the second issue argued for the applicant, if the circumstances which the learned judge found were known to the applicant represented the burden of the applicant's evidence, then in my opinion his Honour's conclusion that this was knowledge of serious injury incapacity was unimpeachable. Knowledge of a permanent compensable incapacity for pre-injury work, particularly when such work had always involved considerable physical exertion in a man who was otherwise unskilled, was surely knowledge of serious injury incapacity, at least as the legislation stood at the time. That was so even if, in consequence of retraining and particular job placement, the applicant in fact obtained lighter work for a period; and even if the applicant earned no less money in such work.

25 That takes me to the second aspect of the second issue raised for the applicant. It was submitted that his Honour's findings were only a part, and unrepresentative at that, of the applicant's pertinent knowledge. As the applicant would have it, he acquired decisive knowledge when, on 14 September 2001, his condition worsened and he was unable to continue with the light work as a car park attendant which he had commenced in August 1998. He, the applicant, had judged the extent of his incapacity against his capacity to undertake employment. Wrongly, the judge had not taken the applicant's perspective into account.

26 In my respectful opinion, contrary to the submissions for the applicant, the items of knowledge to which the judge referred, far from being unrepresentative of the applicant's evidence, in fact were the converse. But I should begin by referring to passages in the applicant's affidavits in support of his application,[12] and in his evidence, which were relied upon to reveal a different story. Thus:

• In his affidavit, sworn 5 February 2003 the applicant deposed that

"From 2001 I noticed gradually increasing levels of pain in my lower back and I was forced to cease work again on 14th September 2001."

• In his affidavit sworn 10 July 2003 the applicant deposed that

". . . I say that I was able to continue in employment, although subject to persisting lower back symptoms, until 14th September, 2001. It was at that point in time that I perceived that the incapacity arising from my injury was likely to be long term and to severely inhibit my ability to continue in paid employment into the future. It is for this reason that reliance is placed upon s.135AC(b) of the Accident Compensation Act 1985."

• In re-examination the applicant was asked these questions and gave these answers -

"In any event, what was your view during that period, that is, between 1997 and September 2001, about the progress of your back? Were you expecting it to come good or hoping it to come good or expecting it to stay the same, or what? - - - I was hoping it would improve because I'd like to go back to work.

When you were doing the work as a car-park attendant, did you have a view that you'd be doing that for the rest of your life or did you think that you might get more mobility to do other things? - - - I was hoping I'd get more mobility to be able to go on and do something else.

In relation to September 2001, why was it then that you realised that your incapacity was likely to be long term? - - - I'd been having more and more time off at work over the course of leading up to when I finished, and it wasn't improved."

27 I turn now to some - not all - of the substantial body of evidence given by the applicant which appears to me to have been supportive of the state of knowledge identified by the learned judge. Thus:

• "You have always, throughout your working career, performed work similar to that which you were performing at Bandag and at Hoppers Crossing Tyres? - - - Yes.

Heavy work? - - - Yes.

You have no trade qualifications? - - - No."

• "Well, when was it that you become aware that this work you were doing, whether it's light or whether it's tried to get back into a normal routine, was continuing to cause your back to play up? - - - I realised reasonably soon with going back to work."[13]

• "Certain of my duties that I used to do were ceased, polishing wheels and stuff like that. I couldn't do that any more."[14]

• "'And [you] only got back to normal duties a couple of weeks before [you] stopped work again'? - - - That would be correct.

'And trying to perform [your] normal duties caused an exacerbation of [your] low back pain'? - - - Yes.

'A very significant exacerbation of [your] low back pain, sufficient to cause [you] to stop work again'? - - - Yes."[15]

• "You became involved with CRS, did you not? - - - Yes, I did.

In terms of attempts to get you back to work? - - - Yes.

Those attempts continued for quite some time until in fact you were found work? - - - Yes.

You commenced work with Wilson Parking, I suggest to you, in August 1998? - - - I think it was, yes.

Prior to that time your involvement with CRS was such that there was an acceptance by both you and them that you would not be able to go back to tyre-fitting work? - - - Yes, that's correct.

And there was an acceptance by you and them that you would never be able to go back to tyre-fitting work? - - - Yes.

Because of the condition of your back? - - - Yes.

And that's why there was the involvement of CRS to try to either retrain or assist you to get work which you were fit to perform? - - - Yes, that's correct."

• "Before you got the job with Wilson Parking, CRS in fact did a work site assessment? - - - Yes.

Were you involved with that assessment? - - - A little bit, yes.

It was a job which you could certainly have a go at because you had the opportunity to sit and stand? - - - Yes.

There were opportunities for you to get out of the booth and walk around during more quiet periods? - - - Yes."

• "So that over the first year you worked with Wilson Parking - let's take it through to the end of 1999, Mr Edwards? - - - Mm'hm.

You were able to continue with that work? - - Yes.

You continued to have symptoms and problems with your low back? - - - Yes.

You continued to have symptoms and problems with radiation pain into your legs? - - - Yes.

You knew you had to be careful while performing your work for Wilson Parking? - - - Yes.

And you knew that heavy work like the type of work you'd been performing with Hoppers Crossing Tyres was out? - - Yes.

You'd never be able to go back to that type of work? - - - No, much as I'd want to.

You knew that you would never be able to go back to the type of work that you had performed with Western Bandag which had enabled you to earn 43 or $44,000 gross per annum? - - - Yes.

During that 1998 - 1999 period when you were working for Wilson Parking, there was indeed a problem over you taking time off work because of your back, wasn't there? - - - Yes."

• " ... between 31st July 1997 and the end of 1999 you attended for physiotherapy treatment for your back on approximately 134 occasions? - - - Andrew had me in there sometimes twice a week to see him.

Ongoing problems? - - - Yes.

Fluctuating from time to time? - - - Yes.

But certainly no indication that your overall condition was in any way improving? - - - Yes."

• "Quite apart from work problems, Mr Edwards, the problems that you have deposed to in your affidavit about golf, fishing and difficulties with household maintenance and cleaning and gardening and the like, those problems have persisted from 1997 onwards? - - - Yes.

It would have been fairly apparent to you by mid-1999 that basically golf was out? - - - Yes."

28 The affidavit and viva voce evidence upon which the applicant relied was underwhelming.

• The passage in the affidavit of 5 February 2003 was not readily reconcilable with evidence which the applicant gave about the persistence of his back and leg symptoms throughout his employment as a car-park attendant.

• The matters deposed to in the affidavit of 10 July 2003, if they did not have the flavour of contrivance, at least did not sit comfortably with a good deal of the applicant's viva voce evidence to which I have referred.

• The applicant's evidence in re-examination concerning the period 1997 - September 2001, in which he spoke of what he hoped would occur, did not logically stand in contradiction to what he elsewhere said that he knew. It could not be concluded that the judge did not consider that evidence. Put simply, he did not need to mention it because it did not stand opposed to what he had concluded was subjectively known to the applicant. The applicant's evidence was not a statement of a belief held that he would improve to the point where what was presently a serious impairment would cease to be so. Nor was it evidence of a belief that his condition would improve to the point where he would be able to resume work of particular types. The issues for consideration if such evidence had been given and accepted did not arise. The applicant's evidence was of a bare hope.

• The last question in re-examination to which I referred was put in a form which to my mind diminished the value of the answer.

29 All in all, as I said earlier, I am of opinion that the learned judge's conclusion as to the applicant's state of knowledge well before February 2000 is unimpeachable.

30 I consider that the application for leave to appeal should be refused, and that the appeal should be dismissed as incompetent.

31 I agree with the orders proposed by Ashley, J.A. and do so for the reasons given by him. I would only make one observation.

32 A principal point pressed by Mr Kennan for the applicant in his skilful argument was that his Honour effectively disregarded the applicant's subjective knowledge as to the state of his impairment, but considered the facts that the applicant knew and then characterised them objectively as amounting to knowledge by him of a serious impairment, thereby concluding that the applicant had the requisite knowledge prior to 13 February 2000. Counsel relied essentially on the applicant's affidavit and his evidence in re-examination that, within the relevant period, he hoped that his back injury would improve and that he would be able to go on and do something else in terms of employment. It was said by Mr Kennan that the applicant thereby evinced that he did not accept the injuries as serious long-term impairment, and that he did not fully appreciate the true significance of his injuries. But, as Mr Forrest for the respondent pointed out, correctly, I think, this evidence must be looked at in the context of the applicant's immediately preceding evidence where he essentially accepted that he knew that he had suffered, and would continue to suffer by reason of his injury, a significant impairment to his back resulting in a significant diminution in work capacity, enjoyment of life and income. That evidence is set out in the reasons of Ashley, J.A. In that context, I think, it was well open to his Honour to treat the applicant's expression of hope as no more than a bare hope that did not relevantly effect his state of knowledge as to the extent of his impairment and his appreciation of the true significance of his injuries. In those circumstances, I think, it could not be fairly said that his Honour assessed the applicant's relevant state of knowledge on an objective basis contrary to the requirement articulated in that regard by Paget.

33 I agree with Ashley, J.A., for the reasons that his Honour gives, that the application ought be refused and that the appeal ought be dismissed as incompetent.

34 The Court will make the following orders:

1. The application for leave to appeal is refused.

2. The appeal is dismissed as incompetent.

3. The applicant pay the respondents' costs of the appeal.

[1] See Paget v JLT Workers Compensation Services Pty Ltd and anor [2005] VSCA 144 at [20] per Callaway JA.

[2] Paget [26], [29] per Callaway JA; Hurwood v State of Victoria [2005] VSCA 176 at [11] per Osborn AJA.

[3] Paget at [29], [34].

[4] Para 20 of reasons.

[5] Paragraph 19 of his Honour's reasons.

[6] [1992] VicRp 58; [1992] 2 VR 129 at 140.

[7] Mobilio v Balliotis [1998] 3 VR 833 at 836 per Brooking JA, citing Fleming v Hutchinson (1991) 66 ALJR 211 (a special leave application); see also per Ormiston JA at 853 and per Phillips JA at 858.

[8] State of Victoria v Collins [1998] VSCA 129; [1999] 1 VR 215 at 222 per Winneke, P; Paget at [30] per Callaway JA.

[9] At [31].

[10] That might be demonstrable from something said in reasons for judgment; or as a necessary inference from the characterisation of a worker's state of knowledge.

[11] Petkovski v. Galletti [1994] VicRp 32; (1994) 1 V.R. 436 at 444 per Southwell and Teague, JJ (no doubt his Honour was particularly referring to lines 39 - 50), and State of Victoria v. Glover [1998] VSCA 93 at [29] - [30] per Ormiston, J.A.

[12] The applicant gave evidence as to their truth, and they went into evidence on the application below.

[13] This was a reference to resumed work with the respondents in 1997.

[14] Again, a reference to resumed work with the respondents in 1997.

[15] A reference to the circumstances in which the applicant finally ceased work with the respondents.