Court of Appeal (WA)|2003-10-14|Before: Mr J, Wheeler J, As Wheeler J, Parker J, McKechnie J

Girrawheen Tavern v Joseph [2003] WASCA 244 (14 October 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GIRRAWHEEN TAVERN -v- JOSEPH [2003] WASCA 244

Workers Compensation - Disability - Degree of disability - Aggravation of separate work related injuries

Workers Compensation - Disability - Whether permanent

Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947

Workers' Compensation & Rehabilitation Act 1981, s 93D

Bushby v Morris [1980] 1 NSWLR 81

Cooperative Bulk Handling Ltd v Taylor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996

McComish v Fydelor (1994) 12 SR (WA) 4

Morris v George [1977] 2 NSWLR 552

Re Gillett; Ex parte Rusich [2001] WASCA 111

White v Order of the Servants of Mary (Inc) (1995) 13 SR (WA) 214

1 PARKER J: I have had the advantage of reading in draft the reasons of Wheeler J. What her Honour has written relieves me of the need to set out the circumstances and issues in this case. Subject to a reservation, I respectfully agree with the views expressed by her Honour on all but one issue.

2 As Wheeler J has correctly pointed out, this case is concerned only with the aggregation of injuries in the course of employment with one employer, although those injuries arose from distinct events.

3 It is both surprising and disappointing that the provisions of the Act are obscure, to say the least, whether, for the purposes of Division 2 of Part IV of the Act, disabilities of a worker resulting from several distinct injuries in the course of work should be treated separately or regarded as one total or cumulative disability. This distinction may be critical because the scheme of Division 2 of Part IV is to preclude a court from awarding damages at common law where the degree of disability calculated in accordance with the statutory criteria is less than 30 per cent, or in some particular circumstances 16 per cent. Hence, where there have been several distinct injuries in the course of work it is quite possible that each injury, if considered separately, will have been productive of a disability less than the applicable level or degree, whether 16 per cent or 30 per cent, whereas their cumulative effect may be a very substantial disability, perhaps even a total disability.

4 It is true that workers' compensation legislation, generally speaking, treats quite separately the entitlement of a worker to compensation which arises from each personal injury by accident. The difficulty with maintaining that approach in the present context arises from the different object and purpose of Division 2 of Part IV of the Act. In this Division, the Act is directed to constraining awards of common law damages where workers' compensation is payable. It is not necessarily the case, nor do the particular provisions make it clear, that the general approach to provisions regulating a worker's entitlement to compensation is appropriate in this quite distinct aspect of this particular Act.

5 The task of discerning the legislative intention in this respect is difficult enough in the present context, where the issue is distinct injuries by accident to a worker in the course of employment by the one employer. The difficulties appear even greater where there has been more than one injury by accident to a worker occurring at different times and whilst the worker was in the employ of different employers, especially where a subsequent injury exacerbates a disability from an earlier injury. The difficulties presented by the legislative scheme may be even more significant in cases where there are distinct injuries occurring at different times, whether producing an exacerbation of an earlier disability or a further and distinct disability, where one (or more) of the injuries is not compensable under the Act at all.

6 The difficulties presented by the provisions of the Act in the present case may well be further informed by a full consideration of the operation of the statutory provisions in these other situations. These matters have not been adequately explored in the course of argument in this case, however, and I think it preferable not to reach a final concluded view about the statutory scheme, even in its application to the circumstances of the present case, until the opportunity presents itself for a detailed examination of the statutory scheme in the context of the other factual situations. For that reason I would prefer to regard as tentative, and subject to possible future revision or refinement, the views to which I am presently persuaded about the operation of the statutory scheme in the present case.

7 Subject to that reservation, I would respectfully agree with the views expressed by Wheeler J as to the statutory scheme in the context of the aggregation of disabilities resulting from more than one injury in the course of employment with the one employer. As indicated in her Honour's reasons the "degree of disability", for the purposes of s 93D(5) and (6), appears to have regard merely to the condition of the worker. Once that condition reaches the required level, damages at common law may be awarded.

8 The issue arises from the additional ground of appeal which was added by leave at the hearing. This questions the "jurisdictional" adequacy of Dr Calabro's report for the purposes of s 93D(6) of the Act. It is submitted that the report fails to indicate that the assessment of the respondent's disability by Dr Calabro was according to the applicable statutory criteria, and that the report failed to indicate that the disabilities of the respondent, the subject of the report, were permanent.

9 In this case there were a number of disabilities identified by the Doctor. The tenor of the report indicates that all but one of these were relatively minor, so that even in combination it seems they would not satisfy either of the jurisdictional degrees of disability required by s 93D(6).

10 The remaining disability, which Doctor Calabro regarded as the most significant, was described by him as "... a severe emotional disturbance which has helped to exacerbate and perpetuate the degree of pain perceived by the patient and has given rise to a vicious cycle of pain, anxiety and emotional hurt". The Doctor went on to report that this cycle was well established and will continue "until some significant event takes place". The most significant event of this nature in the Doctor's opinion "would be to finalise this claim as soon as possible".

11 I would respectfully agree with the view expressed by Wheeler J, that the reasons in Re Monger; Ex parte Dutch [2001] WASCA 220 at [61] - [62], commend the view that it is not a requirement of s 93D(6) that a report of a medical practitioner, for the purposes of that subsection, should make express reference to an assessment according to the applicable statutory criterion. In particular, as was said at [61], that in the absence of contrary evidence, the Director may accept at face value medical evidence which indicates that the degree of disability is not less than the relevant level and to accept that the assessment was made in accordance with s 93D(2). Further, as was said at [62], the report need not make reference to s 25 or demonstrate on its face that the calculation exemplified in s 93D(4) had been carried out.

12 Hence, for reasons indicated by Wheeler J, a relatively non-technical and generous approach would appear appropriate to the question whether a medical report satisfies the requirements of s 93D(6). In this case, the report of Dr Calabro appears to be directed to the jurisdictional issue posed by s 93D(6) and expresses the unequivocal opinion that the total degree of disability is more than 30 per cent. From the report it is clear that in forming and expressing this opinion Dr Calabro was taking into account the range of specific disabilities which he described in the report, including, critically, the emotional disturbance. In my opinion, it would not be in keeping with the legislative scheme to reject Dr Calabro's report as an inadequate compliance with s 93D(6), merely because it contains no express reference to compliance with s 93D(2) in making the assessment, or with s 25 and s 93D94), or because it did not expressly indicate that the degree of disability was permanent as required by both s 25 and s 93D(2)(b) (whichever applies to a particular disability).

13 In this respect, I would respectfully agree with Wheeler J that the report of Dr Calabro is to be materially distinguished from the medical report considered in Ex parte Dutch, which referred only to a "whole body" disability thereby suggesting some method of assessment of disability not provided for by the Act.

14 Notwithstanding that view, however, aspects of what was said in Dr Calabro's report, in respect of the emotional disturbance of the respondent, gives rise to the distinct issue whether it was open to the Director, and the review officer, to accept from the report that the emotional disturbance was properly to be regarded as permanent. In this case, in respect of the emotional disturbance, the issue arises whether the contents of the report sufficiently indicate the contrary so as to preclude the report being accepted, at face value, as dealing with a permanent disability.

15 In this context it appears to me that "permanent" is to be understood in the sense of a disability or impairment which it is considered will continue indefinitely.

16 Dr Calabro expressly postulated that the severe emotional disturbance had helped to exacerbate and "perpetuate" the degree of pain perceived by the respondent and had given rise to a cycle of pain, now well established, which will continue "until some significant event takes place". He also noted that the condition had proved resistant to treatment. Hence, there are apparently conflicting indications for relevant purposes. By its very nature it is not, of course, a condition which is permanent, in the sense of irreversible, as with the loss of a limb. The Doctor's reference to the perpetuation of the degree of pain perceived may be understood to suggest a condition which will continue indefinitely, a view encouraged perhaps by its reported resistance to treatment. Yet, while the Doctor describes a well established cycle of pain, it is a cycle that will continue merely until some unspecified significant event. That event could well be the finalisation of the respondent's claim for compensation. The foundation of the disability being emotional, which is suggestive of a variable state, and the anticipation of it being resolved by some future event, appear to tend against the conclusion that the disability is permanent in the relevant sense.

17 This result is finely balanced indeed, given the tension between different relevant aspects of Dr Calabro's report. In the end, however, I am led to the view that the report itself sufficiently evidences that the disability constituted by or arising from the respondent's emotional disturbance may not be permanent to preclude the Director, and the review officer, accepting at face value that the reported disability is permanent in the relevant sense. There was no other evidence on this issue.

18 It is in this respect that I differ from the views expressed by Wheeler J. The difference is material to the outcome of the appeal.

19 For these reasons I am of the view that this appeal should be allowed.

20 WHEELER J: This is yet another appeal raising the proper interpretation of portions of Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). The background facts are that on 3 December 1999, by a "Form 22" dated 29 November 1999, the respondent referred to the Director, Conciliation and Review, pursuant to s 93D(5) of the Act, a question about the respondent's "degree of disability". The issue was whether that degree of disability was not less than the "relevant level" as defined by s 93D(1) of the Act.

21 The Form 22 described the respondent's injury as "left and right knees, back, neck, right forearm and wrist, left ankle, psychiatric". The date of injury is identified on the form as "10/11/96 and 11/11/96 and 23/11/96". There was produced to the Director by the respondent with that form a copy of a report of Dr Calabro dated 23 November 1999. This was produced pursuant to s 93D(6) which provides that a question as to disability can only be referred to the Director if the worker produces to the Director "medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level".

22 The report of Dr Calabro extends over a number of pages. In summary, it describes the injuries in the following way. On 10 November 1996, the respondent slipped on wet floor, landed on his hands and buttocks, and developed pain in his left knee. The following day while transporting some empty pallets on a trolley, the pallets fell on him causing bruising to his right knee and pain in his right shoulder and wrists and pain in his right thumb. The diagnosis after he attended on Dr Calabro following those two events was that he had soft tissue strain of the left knee, bruising of the right knee, strained wrists, soft tissue strain in the right shoulder and mid upper back and a strained right thumb. He was at that time fit for light duties.

23 On 23 November 1996 he was attempting to escort some rowdy patrons from the appellant's premises and was assaulted and struck in the back with a bottle. Physical examination then revealed tenderness over the right back and over the left knee. The respondent attended Dr Calabro on a number of occasions during late 1996 and through to mid 1998. He

presented with tenderness and pain in the knees, and was referred for physiotherapy, and MRI investigations, and also referred to psychologists, psychiatrists and rehabilitation providers.

24 Dr Calabro expressed the view that it was difficult to explain the severity of his symptoms and of his incapacity in purely anatomical terms, but expressed the opinion that the physical injuries had triggered off a severe emotional disturbance, giving rise to a "vicious cycle of pain, anxiety and emotional hurt". Dr Calabro's view was that that cycle was well established and would continue "until some significant event takes place". A significant event which the doctor could envisage would be finalisation of his claim against the appellant. Dr Calabro expressed the view that the respondent was "totally incapacitated for any meaningful occupation" and said that he had no difficulty in declaring him "more than 30% disabled for any occupation given the severity of his physical and emotional pain which has been caused by the fact that he was hurt at work".

25 The respondent was reviewed by a number of medical practitioners. There was a very comprehensive report provided by Mr Williams, an orthopaedic surgeon, on 11 May 2000. Mr Williams gave a very detailed history to that date, and assessed permanent residual disability of 5 per cent of the cervical spine, 5 per cent of the thoraco lumbar spine, 5 per cent disability at both right and left leg at or above the knee, and 5 per cent disability below the elbow. He also referred to major psychological and psychiatric consequences of what he described as the respondent's "whole injury response".

26 Based upon Mr Williams' report, in August 2000 the review officer found that the physical injuries to which Mr Williams ascribed percentage disabilities gave an aggregate 16 per cent disability. He expressed concern that, although many doctors had commented on the presence of what they saw as major depression, none of them had provided an assessment of it pursuant to the AMA (WA) guidelines. He therefore adjourned the review to a further date to enable either or both parties to obtain a report in relation to that matter, and gave leave for the making of further submissions.

27 At the hearing before the review officer, the appellant had submitted that the respondent could not combine separate and distinct injuries occurring on three occasions in November into a single "degree of disability". The review officer took a different view.

28 The appellant appealed from that decision to the Compensation Magistrate's Court. The first four grounds of appeal raised the question of whether the review officer had erred in accepting the respondent's submissions on the issue of the "aggregation" of the three occasions of injury. The final ground attacked the review officer's view that he was unable to make a determination according to the substantial merit of the case in the absence of assessment of the psychiatric disability. The Compensation Magistrate dismissed the appeal. The appellant does not challenge the Compensation Magistrate's decision in relation to its final ground of appeal in that jurisdiction, but seeks to raise again in this Court the aggregation issue. The relevant ground of appeal is that:

"The learned Compensation Magistrate erred in law in holding that the effects of the respondent's disabilities arising from separate allegedly work-related injuries could be aggregated for the purposes of making an assessment of his degree of disability."

Following the decision of this Court in Re Monger; Ex parte Dutch [2001] WASCA 220, the appellant formed the view that further grounds of appeal were arguable and therefore sought to add a ground to the effect that the review officer's jurisdiction was conditional upon compliance with s 93D(6) of the Act by the respondent, and that the report of Dr Calabro failed to comply with that section, because it did not include any assessment made in accordance with the method prescribed by s 93D(2) of the Act and because it did not state that the respondent's degree of disability was permanent. At the hearing of the appeal on 17 March, leave was granted to the appellant to add that ground.

29 It is convenient to deal with the new ground of appeal, going to jurisdiction, first. The two criticisms made of Dr Calabro's report are: first, that it contains no reference to assessment according to an applicable statutory criterion; and, second, that it does not indicate an opinion that the respondent's "degree of disability" was permanent. As to this latter proposition, the appellant suggests that the report indicates a contrary opinion, to the effect that the respondent's emotional state will probably improve after the claim has been finalised.

30 There was in this case no challenge to the correctness of Dutch, which has been subsequently applied in a number of decisions of this Court. That case is authority for the proposition that the Director and the review officer lack jurisdiction to make and to accept a referral which does not comply with s 93D(6), as explained in Dutch.

31 I do not consider that it is a requirement that the report produced pursuant to s 93D(6) makes reference to an assessment according to an applicable statutory criterion. In Dutch, Malcolm CJ (with whom other members of the Court agreed) said, at [60] - [62]:

"[60] It was also submitted on behalf of the Attorney General that there is nothing in s 93D(6) which provides that the medical evidence must in and of itself indicate that the assessment regarding the degree of disability was made in accordance with s 93D(2) of the Act. That subsection provides no more than that the degree of disability is to be assessed in a specified fashion. It is not necessary that the medical evidence itself indicate the degree of disability calculated by reference to the formulae within s 93D(2): Re Monger; Ex parte Ivey [[1999] WASC 250] per Miller J at [21].

[61] When one has regard to the nature of the function of the Director under s 93D(6), I consider that, in the absence of any evidence to the contrary, the Director is entitled to accept at face value medical evidence in the form of a medical report, which indicates that the degree of disability is not less than a certain level, and to accept that the assessment was made in accordance with s 93D(2) unless the contrary is shown.

[62] I accept the submission made on behalf of counsel for the Attorney General that a medical practitioner's report produced for the purposes of s 93D(6) need not make reference to, or be set out in accordance with, the requirements of s 93D(2) and s 25. Nor must such a report demonstrate on its face that the calculation exemplified in s 93D(4) has been carried out. Both of these suggestions are unreasonable and impracticable: cf Thorp v Wanneroo City Council [unreported, CM (WA), 49/00, 31 July 2000] per Packington CM at [44]. Further, to imply in s 93D(6) a requirement that the medical practitioner providing the medical evidence must make specific reference to his or her method of calculation, with the consequence that a failure to do so would result in rejection of the claim at the threshold, would be to adopt a construction that would be in breach of the established principle that remedial legislation is to be construed beneficially: Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 9 per Deane and Gaudron JJ. ... "

32 The later case of Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253 contains an analysis of why it is that considerations of fairness and convenience tell against too fine an analysis of the initial medical report. Those considerations include the lack of legal qualifications of review officers, the statutory requirement that they act informally and quickly, and the likelihood that the initial report will often play no significant role in the ultimate decision as to the worker's degree of disability (per Anderson J, pars [39], [45], [46]). To these, I would add what appears to me to be the unfairness inherent in having the availability of common law rights depend upon a close analysis of a document produced by a medical practitioner, who is not legally trained and whose primary focus must necessarily be diagnosis and treatment, rather than satisfaction of detailed legal requirements. All these considerations suggest that, as Malcolm CJ appears to have accepted in Dutch, a relatively non-technical and generous approach should be used in determining whether a report complies with s 93D(6).

33 Certain reports were considered to be defective in Dutch because the only indication of the degree of disability which they gave was an indication of a "whole body" disability, which is not a concept to be found in the Act and which appears to be inconsistent with the method of assessment it prescribes. However, the report of Dr Calabro differs from the reports considered in Dutch in a number of important respects. Unlike those reports, it sets out in some detail the actual physical problems or disabilities which the respondent suffers from, together with reference to a psychological disability which is plainly considered by Dr Calabro to be the most significant problem. The report therefore contains "material of a medical kind" supporting the opinion (Dutch at [44] per Malcolm CJ, [115] per Owen J).

34 The concept employed by the doctor in his final paragraph is simply that of the respondent being "more than 30% disabled". In the absence of any other indication, it is my view that, consistently with Dutch, the Director was entitled to accept that the assessment was made in accordance with s 93D(2) even though the assessment mechanism or calculation is not set out. It is true that Dr Calabro adds, after the reference to the respondent being disabled, the words "... for any occupation". However, in my view this does no more than to indicate that the doctor was (correctly) considering the issue of "disability" at large, rather than looking to a disability in relation to any particular occupation or occupations.

35 The question of whether the report fails to indicate that the disability is permanent is a difficult one. The concept of permanence is itself not entirely free from difficulty in this area. Some disabilities are plainly permanent in any sense. The loss of a limb, for example, would be irreversible. However, in most cases the question of whether a disability is permanent or not depends upon assumptions about the nature of the treatment which is likely to be available and which it is likely to be practicable for the worker to undertake. Where there are psychological factors involved, it may often involve an assumption about the support available to the worker and the likely course of the worker's future life. A permanent disability is in my view one which, having regard to current knowledge about the available treatment and about the circumstances of the individual worker, is likely to continue indefinitely (Macquarie Dictionary: " 'Permanent'; lasting or intended to last indefinitely; not temporary").

36 The word "permanent" being a word apparently used in its ordinary sense, the question of whether the facts fall within the meaning of that expression appears to be a question of fact for the Director, while the question of whether it is reasonably open to hold that the facts fall within that expression would be a question of law; Dutch per Malcolm CJ at [13]. Of course, the point only having been considered to arise subsequent to the institution of this appeal, neither the Director nor any of the other decision-makers below has been specifically asked to consider whether Dr Calabro did indicate that the disability was permanent. The fact that the Director notified the employer pursuant to s 92D(7), and that the review officer proceeded with the review hearing, must be taken to mean that they did form the opinion that the matter was properly referred and that there was jurisdiction to deal with it: Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 at [43] - [44] per Anderson J.

37 That being so, it appears to me that the question for this Court is whether it would have been open to hold that Dr Calabro was expressing the view that the disability was permanent. In my view it was. He referred to a "vicious cycle", which was "well established" and which he had no doubt would continue "until" some significant event took place. In my view, having regard to the context, what was meant was that it would continue unless some significant event took place which would have the effect of breaking that cycle. The significant event which the doctor imagined would lead to defusing the cycle would be "to finalise this claim as soon as possible". In my view, that arguably falls well short of indicating that the finalisation of the claim would lead to a resolution of the psychological problems. It was an event, and apparently the only one, which the doctor imagined had the capability to end the cycle, but his reference to it is not a prediction that it would in fact have that effect. Further, it was only a finalisation "as soon as possible" which was considered capable of having that effect. Given that that opinion was expressed in November 1999 and at the time of the review, more than six months later, it was plain that no finalisation in the near future was likely, the view which the Director must be taken to have formed appears to have been one which would have been open to him.

38 The question which arises in this case is concerned with the "aggregation" of injuries arising from distinct events in the course of employment with one employer. It is not, for present purposes, necessary to consider what would be the position if more than one employer was involved.

39 The broad thrust of Pt IV Div 2 of the Act has been considered on many occasions. It applies to the awarding of damages against a worker's employer independently of the Act in respect of a disability suffered by a worker; that is, it applies broadly to the awards of damages outside the worker's compensation system, including the award of common law damages, where there is a "disability" as defined by s 5 of the Act. The relevant portion of the definition of "disability" for present purposes is:

"A personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions."

But s 93E damages can only be awarded if either it is agreed or determined that the "degree of disability" is not less than 30 per cent or, alternatively, if the worker has "a significant disability" and elects in the prescribed manner to retain the right to seek damages and that election is registered. A significant disability exists if it is agreed or determined that the "degree of disability" is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations. "Degree of disability" is defined by s 93E to mean the degree of disability of the worker assessed in accordance with s 93D(2). That subsection provides:

"93D. Assessment of disability

...

(2) For the purposes of section 93E, the degree of disability of the worker is to be assessed -

(a) so far as Schedule 2 provides for such a disability, as a percentage equal to -

(i) if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25_;_ or

(ii) if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;

(b) to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

(c) to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.

If the worker and employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director. That is the step which was taken in this case. The Director then considers the dispute in consultation with the parties. If it is not resolved by agreement the Director is to refer it for resolution under the provisions of Pt IIIA (other than Div 2).

40 Unless the degree of disability is not less than 30 per cent, the amount of damages which may be awarded is capped by reason of s 93F. Similarly, any contributions that the employer may be liable to make under the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 are capped in respect of such an injury. Section 96F also provides that (subs (6)):

"This section applies regardless of whether the damages are awarded against one or several employers."

It appears to contemplate that one "degree of disability" may arise from events giving rise to a number of causes of action.

41 The general proposition of the appellant is that workers' compensation legislation, correctly interpreted, generally treats each compensable incident as creating a separate entitlement to workers' compensation, not as creating merely part of an aggregated entitlement. Authorities in other jurisdictions are cited to support that view. It is no doubt a correct view. However, the particular division of the Act with which we are presently concerned is not truly to be considered as "workers' compensation legislation" at all. Rather, it is legislation directed to the restriction of common law rights in circumstances where workers' compensation may also be payable. The question of the way in which separate incidents are treated for the purpose of determining whether and by whom workers' compensation is payable is not necessarily a reliable guide to the interpretation of that division.

42 The New South Wales authorities to which the appellant makes reference, particularly Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249, concern a New South Wales provision the nearest equivalent of which is s 93 of the Act. It deals with the position where disability for which compensation is payable (ie workers' compensation) was caused under circumstances creating a liability in a person other than the employer to pay damages, and deals with the way in which double compensation is to be avoided in that situation. Its focus is on the concept of "circumstances" creating "a liability", rather than on a "disability".

43 The Victorian provisions considered in Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511; [2000] VSCA 65 and in Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 appear somewhat closer to the provisions here in issue. The text of the relevant provision of the Accident Compensation Act of Victoria is not to be found in the report of Lu. However, that case followed Petkovski. Petkovski was concerned with what was the apparently similar provision of s 93 of the Transport Accident Act 1986. It provided that:

"A person who is injured as a result of a transport accident may recover damages in respect of the injury if -

...

(b) The injury is a serious injury." (Emphasis supplied.)

It seems clear from the terms of the provision itself that it is only if "the injury" which results from one identified transport accident is a serious injury that damages may be recovered. It appears that the Victorian provisions were provisions which required a grant of leave prior to the institution of proceedings, of a type which were formerly to be found in the Act. I also note that in Petkovski, Brooking J (at 437) explained that the provisions there in question, as authority binding on him interpreted them, required the detailed examination, on two separate occasions, of what could be complex questions of law and fact; that is, both at the leave stage and again at trial. His Honour expressed the view that that system was "foolish, wasteful and inconvenient".

44 The statutory provisions are, it seems to me, sufficiently different from those in issue in this appeal as to suggest that the Victorian cases are unlikely to afford a useful guide. The comments of Brooking J may be of relevance when one considers the way in which the Act should be interpreted, if the question is an open one.

45 The appellant further suggests that s 93E(5), (6) and (7) will not make sense if the expression "disability" is interpreted to mean a physical incapacity resulting from several injuries. Those subsections provide:

"93E. Restrictions on awarding of damages and payment of compensation

(5) Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.

(6) Despite subsection (5), if -

(a) medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day_;_ and

(b) although a question of whether the degree of disability is not less than 16% was referred to the Director under section 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded,

an election can be made under subsection (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded.

(7) Despite subsection (5), the Director may, in such circumstances as are set out in regulations, extend the period within which an election can be made under subsection (3)(b) until a day (not being a day that is more than 6 months after the termination day) to be fixed by the Director by notice in writing to the worker.

... "

The appellant asks when, for the purposes of those subsections, one could consider weekly payments " ... in respect of the disability commenced", if there were two disabilities within the meaning of subs (5) several months apart and the worker had weekly payments for part only of the period between those two disabilities. The answer, it seems to me, is that if the "disability" for the purpose of s 93D is the final incapacity resulting from the aggregation of a number of injuries, weekly payments in respect of that disability commence only when the final level of incapacity is reached, ie after the last of the relevant injury events. This submission does not appear to me to be a difficulty in the way of the view taken by the review officer.

46 Turning to authority in this State dealing with the concept of "disability", in Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 the court had occasion to consider the task of a medical assessment panel pursuant to s 84ZH. A panel might have referred to it by a review officer a question as to "the nature or extent of a disability", a concept which appears to be very close to the question of the "degree of disability" found in s 93D. The panel in that case had expressed a view as to the cause of the disability in question, to the extent that it was identifiable, and of the capacity of the worker to perform particular work. All members of the court were of the view that the panel could only answer the questions referred to it, and not go beyond them. Importantly, it was held that the panel was not to consider questions of causation in assessing the "extent of a disability", a view which tends to suggest that the concept of "degree of disability" may likewise not involve untangling issues of causation.

47 Anderson J, with whom Murray J agreed, expressed the view that the word "disability" in s 84ZH was not used in its defined sense, but rather simply in the non-technical sense of "physical incapacity". Their Honours in that case followed the earlier decision of Re A Medical Assessment Panel; Ex parte Ansett Australia Ltd, unreported; FCt SCt of WA; Library No 980364; 26 June 1998. Skirving is authority for the proposition that the word "disability" may have different meanings in different portions of the Act, depending on the context.

48 In this context, as the respondent pointed out in its submissions before the review officer, the question of assessment of a "degree" rather tends to suggest that it is the degree of incapacity which is important for the purpose of s 93D; it is not easy to understand the concept of the assessment of "degree" of "personal injury by accident". That submission is reinforced by the definition of "degree of disability" in s 93E(1) as "the degree of disability ... assessed in accordance with s 93D(2); s 93D(2) is, it is apparent, concerned with the totality of the loss of function of the worker. It is also clear from the terms of s 93D(2)(a) that aggregation of a variety of losses of function (eg loss of an eye and of a leg) is contemplated by that section, although the possibility of such aggregation does not, of itself, indicate whether the aggregation of loss of function stemming from separate events is contemplated. That context points, although not strongly, to use of the term in other than the sense defined in s 5, in s 93D(5).

49 In my view, the purpose of the legislation, and the effect of the construction for which the appellant contends, also tend to suggest that in the present case the non-technical meaning is to be preferred. The apparent purpose of Pt IV Div 2 is to ensure that damages can only be awarded where the worker's condition, to put it neutrally, satisfies or reaches a minimum threshold of seriousness. Where that condition results from one injury caused by one accident in the employment of one employer, questions of any more precise focus do not arise.

50 However, where there is a condition which may be very serious, but which may result from a number of incidents, none of which on its own would result in a disability reaching the required threshold, the question arises as to whether the statute focuses on the incident giving rise to liability, or the condition of the worker, as being that which must reach the required threshold. If the appellant's submission is correct, it is possible for a worker to be totally disabled (in the ordinary and non-technical sense) and yet, because the disability results from the composite effect of a number of distinct injuries, to be unable to seek any common law damages. Particularly having regard to the basic principle of interpretation that there should occur no more far reaching effect on established rights than Parliament clearly intends (Hewitt v Benale Pty Ltd [2002] WASCA 163; [2002] ACLR 450 at [126] per Heenan J), it seems to me that this outcome is one which tells against the interpretation for which the appellant contends.

51 That view is I think confirmed by the Second Reading Speech of the Hon Minister for Labour Relations, introducing these amendments to the Act, which explained that the amending Bill "addressed escalating common law costs ... by permitting only workers who have a serious disability to access the common law". The Minister explained that the origin of the amendments was, in part, a recommendation of an independent actuary, that access to common law be restricted to workers whose "level of impairment" exceeded a threshold. (Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), Vol 306, No 3, 21 September 1993 at 4233). The focus there is clearly on the condition of the worker.

52 The role of, and qualifications for, the position of review officer may also assist in ascertaining the legislative purpose. It has been noted in other cases (eg United Constructions) that it is not to be expected that the review officer will be particularly knowledgeable as to questions of law. The assessment which s 93D appears to require from him is a threshold or gateway one. It could be productive of considerable expense and inconvenience, if the review officer were to be required to untangle potentially complex legal and factual questions of causation. The unlikelihood of Parliament requiring such a task of him (particularly where, following Skirving, he will not be able to ask a medical panel to assist in that task of untangling causation) is a factor to be considered in arriving at a correct construction.

53 Turning to authority, although there is no clear determination of the precise issue in this appeal, there is already authority in this Court for the proposition that it matters not whether a disability for the purpose of s 93D arises as the result of one or more causes of action: Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1999. It is true that in that case the distinct causes of action apparently involved the same body part, so that each predisposed the worker towards the back injury which she suffered, or perhaps aggravated it. However, it is difficult to see distinct causes of action arising in circumstances where each could not also be described as a distinct "personal injury by accident". The view of the court in Chestone ([7]) that it is the nature of the disability which is material, and not the cause or causes of action which have led to it, is in my view consistent with the position which the review officer took in this case. A similar view was expressed in Stockman v Argyle Diamond Sales Ltd [2002] WASCA 89, although in that case it was clear that, whatever view was taken, there was at least one single disability as defined by s 5, the effect of which was a degree of disability exceeding the statutory threshold.

54 Finally, I notice that the interpretation for which the appellant contends would apparently have different results where the relevant degree of disability resulted from "injuries" on a number of occasions, rather than from other conditions which may also be attributable to different events at different times. For example, in relation to noise induced hearing loss, that is for the purposes of the definition of disability "a disabling loss of function to which Pt III Div 4 applies". That division provides that where a worker is "disabled" from earning full wages by reason of a loss of function described in Sch 4 [including noise induced hearing loss] and the disability is due to the nature of any employment in which the worker was employed within the three previous years "a disability, being that loss of function ... occurs". It is clear in that context that the word "disability" is used in its ordinary sense of a physical incapacity or loss of function. For the purpose of s 93D it is then the degree of that loss of function in the ordinary sense which is to be assessed, notwithstanding that it may have occurred over a number of years as a result of events on a number of occasions. It seems to me that, although different types of incapacity may justify or require reference to different criteria, it is unlikely that the parliamentary intention was that workers disabled (in the ordinary sense) to the relevant degree should be left with very different rights against their employers, depending upon the way in which the incapacity occurred.

55 In my view authority in this Court, to the extent that it is relevant, and considerations of the purpose and structure of this Part of the Act, point to the conclusion that "disability" in s 93D(5) is used in its ordinary, rather than in its defined, meaning. The determination of the "degree of disability" looks simply to the condition of the worker. Once that

condition reaches the required level of incapacity, damages may be awarded. Questions of causation will be issues to be raised and determined at trial, and may affect the quantum of any damages awarded. I would dismiss this appeal.

56 MCKECHNIE J: For the reasons given by Justice Wheeler, I would also dismiss this appeal.

Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947

Rehabilitation Act 1981

Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Compensation and Rehabilitation Act 1981

Girrawheen Tavern v Joseph [2003] WASCA 244

At a glance

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Judgment (94 paragraphs)

Girrawheen Tavern v Joseph [2003] WASCA 244 (14 October 2003)

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Legislation Cited (5)

Cases Cited (2)