Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172

1 I agree with Ashley, JA. The trial judge did not directly address the question whether on or after 20 October 1999 the appellant suffered compensable injury, which resulted in or materially contributed to consequences constituting serious injury. Her Honour appears to have proceeded on the basis that the application must fail because the appellant's incapacity could be linked or seen as referable to employment before 20 October 1999. Her Honour also decided questions relating to whether a compensable injury was caused to the appellant after 20 October 1999 by reference only to the opinions of doctors instead of resolving the question on all the evidence before the Court. For the reasons stated by Ashley, JA I am of the opinion that such an approach was mistaken.

2 I also agree with Ashley, JA. Like his Honour, and for the reasons given by him, I consider that the learned trial judge probably misdirected herself as to what this Court said in Barwon Spinners Pty Ltd v Podolak.[1] In that case the Court made it plain that the plaintiff must identify the compensable injury (in respect of which he or she claims there is an entitlement to compensation under the Act) and establish that it occurred on or after 20 October 1999. Expressions used by it such as "referable" or "linked" to employment were alternatives to, or short hand for, the words in s.134AB(1), "arising out of or in the course of, or due to the nature of, employment ...". The Court effectively said[2] that, where the injury has its foundation in circumstances that were referable to the worker's employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of sub-s.(1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referrable to employment on or after the due date, but not before it. The Court did not say, however, that merely

because the injury had its foundation in the work environment prior to the due date and has been ongoing it necessarily meant that the plaintiff was "out of court" for the purposes of sub-s.(1). As Ashley, JA explains,[3] there is an important difference between injury and the consequences of injury. Whether the injury is compensable and whether it occurred post the due date are questions of fact that must be determined by reference to the circumstances of the particular case. Thus, for example, it may be that an injury that had its onset in the work place some years prior to 20 October 1999 and was "ongoing" or evolving, but which only manifested itself, say, at the end of 1999, would not be regarded for the purposes of sub-s.(1) as a compensable injury that relevantly occurred after the due date. On the other hand, as his Honour makes clear by reference to the likely scenario in this case,[4] although the appellant may have sustained injury - even a compensable injury and one that was "ongoing" - before the due date, the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became "entitled to compensation" within the meaning of sub-s.(1), was sustained after the due date.

3 Be that as it may, I consider that, in the present case, for the reasons given by Ashley, JA, the trial judge did not adequately address the question whether, on or after the relevant date, the appellant suffered compensable injury that resulted in or contributed to consequences that constituted serious injury. It follows that the decision cannot stand and, for the reasons given by his Honour, the matter should be remitted to the County Court for determination.

4 This is an appeal from an order made by a judge of the County Court on 2 August 2005 dismissing an application brought by Emanuel Grech (conveniently,

"the plaintiff") under s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act").

5 The plaintiff commenced his unsuccessful application by originating motion filed 19 October 2004. In particulars of injury filed in support of his originating motion, which addressed s.134AB(37)(a) and (c), he contended that he suffered from "serious injuries" as follows:

• A permanent serious impairment or loss of body function involving injury to the left and/or right upper extremities, in particular the left and/or right wrists and/or hands as a result of the development of bilateral carpal tunnel syndrome; and

• A permanent severe mental or severe behavioural disturbance or disorder.

He asserted that the consequences of compensable injury were serious both by reference to pain and suffering and loss of earning capacity.

The evidence. Non-controversial aspects

6 At trial, in late July 2005, the plaintiff relied upon four affidavits sworn by him in the period 2 April 2004 to 20 July 2005, an affidavit sworn by his wife on 6 July 2005, and a number of documents which were put in evidence. The last-mentioned included reports from treating and examining specialists, the results of two EMG studies, "medical certificates" (as the trial judge described them) given by two medical panels constituted under the Act, and a vocational assessment report. The defendants at trial - that is, Orica Australia Ltd[5] (the employer and, conveniently, "the defendant") and Victorian WorkCover Authority - relied upon other documents which were put in evidence. Such documents included additional medical reports, extracts from a treating general practitioner's report, and WorkCover certificates of incapacity.

7 The plaintiff was cross-examined at trial. No other evidence was given viva voce.

8 A good deal of the material placed before the learned County Court judge was uncontroversial. It is convenient to summarize that evidence:

• The plaintiff, born in 1947, was 57 at time of trial. He was married. He had migrated to Australia from his birth place, Malta, in 1977.

• Soon after his arrival in Australia, the plaintiff commenced employment with the defendant. His employment ended, after more than 30 years, when he was made redundant in late May 2002.

• At the time when he was made redundant, the plaintiff was earning over $1500 gross per week. He was then working on restricted duties.

• Between the time when he was made redundant and trial he had no employment.

• Up until 1981 the plaintiff was employed by the defendant as a shift worker. Then he became a shift foreman, in which position he remained until retrenchment.

• In both capacities, but particularly as a shift worker, the plaintiff was required to open and close valves repeatedly. The frequency of that task considerably reduced after a computerized system was introduced in 1993. Even so, as the judge found, when the plaintiff worked outside the control room he still manually operated valves - at least up until late 2000, at which time he sought treatment for wrist and hand pain and other symptoms.

• As shift foreman, the plaintiff was additionally responsible for overseeing a team of workers, ensuring the safety of processes, resolving disputes between workers, and dealing with non-compliant members of his team.

• The material which was before the judge gave her the impression that -

"the plaintiff was a committed and valued employee...".

Nothing was said on this appeal to put that assessment in doubt.

• The plaintiff began to feel a gradual build up of stress from 1991 by reason of incidents of his employment. He made complaints to management on several occasions about stressful work conditions; but nothing was done. From (probably) 1999, he began to experience mild panic attacks. In October 2000, he suffered an episode of palpitations and shortness of breath. On about 3 January 2001, there being specific circumstances at work that day which the plaintiff found to be stressful, he suffered shortness of breath, severe chest pain, and palpitations. He attended the works nurse. His blood pressure was found to be elevated. He was given oxygen and taken to Western General Hospital. He was admitted overnight. Thereafter he was five months off work "due to stress", following which he returned to work "on a rehabilitation programme, mostly doing paper work". He remained in that work until accepting redundancy in May 2002.

• In 2000, the plaintiff began to notice intermittent numbness and pain in his hands at night. Symptoms worsened. He consulted the works nurse on 8 September 2000, and was thereafter referred to the factory doctor, whom he saw in October that year. He was sent to a hand therapist and given splints to wear at night. He reported injury to his hands on 8 November 2000, and made a claim for compensation in respect thereof on 6 December.

Matters in controversy. Their disposition by the judge

9 That takes me to the issues which were controversial. I go to the reasons of

the learned judge. I do so because, assuming the relevance of s.134AD,[6] what is before the Court is an appeal, though not an appeal by way of hearing de novo. So much was decided by Barwon Spinners Pty Ltd v Podolak[7]. In such a case, although it is not necessary for an appellant to demonstrate specific error at trial, or that the result at trial was so aberrant as to bespeak some unidentified error, "the appellate function will always be encouraged by an appellant's demonstrating specific error, whether of fact or law."[8] In the present case, as will be seen, the plaintiff contended that the trial judge made specific errors of both law and fact.

10 Her Honour specified, at the outset of her reasons, the "injuries" in respect of which the plaintiff sought leave to bring common law proceedings:

"... injury to both wrists and hands, namely bilateral carpal tunnel syndrome, and ... mental injury, namely adjustment disorder with mixed anxiety and depressed mood and panic disorder."

11 Her Honour next set out what the plaintiff must establish to succeed in his application. The first of the matters was this:

"(The plaintiff must establish) under sub-s.134AB(1) the injuries alleged and the fact that they are referable to employment on or after 20 October 1999."

That was a paraphrase of part of the reasons of Phillips JA, speaking for the Court, in Barwon Spinners.

12 Then the judge concluded that it was more probable than not that each of the conditions upon which the plaintiff relied were "referable to employment before and after 20 October 1999". That, she said, was the situation which had arisen in one of the cases considered in Barwon Spinners, concerning which Phillips, JA had said that a plaintiff was required -

"... to identify for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description 'serious injury' if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s.134AB addresses - first in prohibiting a common law proceeding for damages in respect of it 'otherwise than as permitted by and in accordance with this section' and, secondly, in authorizing such a proceeding, but only on the strict conditions laid down by the section ..."[9]

13 Concerning the plaintiff's claim in respect of mental injury, the judge expressed herself satisfied that a report compiled by his general practitioner, Dr Elberg, dated May 2005, "really means that for some years prior to the incident in January 2001 Dr Elberg treated the plaintiff for stress-related illness." I will say something about that conclusion, which in any event was insufficiently focused, later in these reasons.

14 Her Honour then referred to the opinions of six psychiatrists and a treating psychologist as to "the onset of the plaintiff's mental disorder". Each of the practitioners accepted that the plaintiff suffered, at time of examination, from a mental injury attributable to the stresses of his employment over the years. They variously described it as "adjustment disorder with mixed anxiety and depressed mood and panic disorder"[10], "an adjustment disorder and panic attacks"[11], "mild adjustment disorder and ... occasional panic attacks"[12], "panic disorder with associated reactive depression"[13], "panic disorder with associated anxiety"[14], and "symptoms of anxiety - and panic attack(s)"[15].

15 According to the judge, the histories recorded by the doctors -

"accurately depict a gradual build up of stress, particularly from the years when the plaintiff took on his management position."

16 None of the doctors, nor the psychologist, said her Honour -

"ha[d] specifically addressed the question of whether the mental injury alleged was referable to employment on or after 20 October 1999 or, for that matter, the extent to which [the plaintiff's] mental injury is linked to employment on or after 20 October 1999 as distinct from employment before that date."

17 I turn to the judge's treatment of the evidence concerning the plaintiff's hand injuries. She summarized the position this way:

" ... both the plaintiff's evidence and the medical evidence, where the doctors have obtained a history from the plaintiff relating to the onset of bilateral carpal tunnel syndrome, consistently point to the fact that the condition evolved over a period of time, that work was a significant contributing factor over many years prior to the plaintiff's first complaint to his employer, and that the diagnosis of the condition was confirmed by the first nerve conduction test in December 2000."

"The histories attributed to the plaintiff by the doctors are ... consistent with a finding that there has been a gradual onset of the bilateral carpal tunnel condition referable to employment before and after 20 October 1999. The Court is again left without identification of compensable injury that is referable to employment after 20 October 1999."

19 Because of her resolution of what she described as the "preliminary point", her Honour did not address, in substance, other issues raised by the defendant - particularly whether the plaintiff had established that any compensable injury was, by its consequences, "serious injury" of the pain and suffering and/or loss of earning capacity kind. She did, however, offer some "comments" concerning the plaintiff's claimed total loss of earning capacity which were plainly favourable to the defendant.

The notice of appeal. Counsel's submissions

20 By his amended notice of appeal, which was unnecessarily long and repetitive, the plaintiff contended, in substance, that the learned judge -

• Erred in failing to be satisfied that the plaintiff had suffered, on or after 20 October 1999, injury to his hands and wrists, and injury constituted by mental or behavioural disturbance or disorder, which were in their respective consequences "serious injury" as defined.

• Erred in ruling that the reasons for opinion given by medical panels in November 2003 and April 2004 were inadmissible, it being contended that they had been admissible at least to support the plaintiff's contention that he suffered compensable injuries on or after 20 October 1999.

• Failed to determine a number of questions which arose upon the hearing of the application.

• Failed to give adequate reasons for her decision.

21 Most of counsel's argument focussed upon the first and second matters just mentioned. As to the first of them, counsel submitted that the learned judge had, in effect, distracted herself from considering the true question, which was this: Had the plaintiff established that he had suffered an injury (whether or not constituted by the aggravation, acceleration, exacerbation or deterioration of pre-existing injury, and whether physical and/or mental ) on or after 20 October 1999 which was, in its consequences, serious injury as defined. That question, counsel argued, was not answered by a finding that symptoms of some "mental disorder" had been present before 20 October 1999, or by a finding that "the conditions" were referable to employment before and after that date.

22 There were, as I see it, two aspects to that submission. First, counsel contended that the judge had not set the right template for consideration of the facts. Second, counsel argued that even if she had done so, her consideration of the facts had been wrong both in principle and in application.

23 Concerning the judge's ruling with respect to the admissibility of the reasons for opinion of the two medical panels - which in each instance had proceeded upon acceptance that the plaintiff had suffered relevant injury on or after 20 October 1999 - counsel submitted that they had been admissible if only because a number of doctors whose reports had gone into evidence had been supplied with and had considered the reasons. The reasons should have been admitted as assisting to explain the opinions of those doctors. Lianos v Inner and Eastern Health Care Network[16], counsel submitted, was not in point.

24 I turn to the defendant's submissions in response. Counsel submitted that the plaintiff had rightly failed because he had not discharged the statutory onus of establishing with appropriate precision -

• "what compensable physical injury he had sustained, which could be linked to employment on or after 20 October 1999;

• what compensable mental injury he had sustained, which could be linked to employment on or after 20 October 1999."

25 Counsel relied upon what he submitted was a key passage in Barwon Spinners - a passage which was cited by the judge in the present case, and which I have already set out.[17] According to his written submissions -

"It is necessary for the worker, as a first step, to identify compensable injury referable to employment on or after 20 October 1999, but not to employment before that date".[18]

26 Asked by Buchanan, JA what was meant by "referable", counsel replied, as I understand it, that what had to be done was to excise from consideration any contribution to injury by employment during the period "banned" by s.134A.

27 Further in response to questioning by the Court, counsel submitted that a plaintiff "may win" if able to establish the happening of compensable injuries before and after 20 October 1999, each sufficiently contributing to "serious injury" arising on or after that date.

28 Concerning the alleged injury to the plaintiff's hands and wrists, counsel submitted that -

"The circumstances are very similar to the analysis in the appeal of Gledhill, in Barwon Spinners, at paragraphs [136] - [139]. Once it is accepted that the injury consists of an 'evolving' 'underlying injury' [see paragraph [138] in Barwon Spinners], which was a finding made by the Judge and well open on the evidence, the plaintiff (like Mrs Gledhill) was bound to fail in the absence of probative evidence which established that injury, with requisite consequences, was attributable to work within the specified statutory period, and not outside that period."

29 The plaintiff's case at trial, counsel further submitted, was not put as injury of an "aggravation" kind. But if it had been put that way, it must have failed because the plaintiff had not satisfied the onus of identifying compensable injury linked to employment on or after 20 October 1999.

30 The situation, according to counsel's oral submissions, was one where the plaintiff had a "non frank" injury to his hands and wrists before 20 October 1999. That injury, it was said, inexorably caused damage, and so the later emergence of symptoms.

31 Concerning the alleged mental injury, counsel submitted that the judge's findings had been well-open. But he frankly, and in my opinion correctly, accepted that the connection apparently drawn by the judge between treatment for hypertension, mild renal abnormality and hyperlipidemia (which the plaintiff had received for some years before January 2001) and stress-related illness was "not strong". Counsel mentioned and relied upon a passage in cross-examination of the plaintiff, in which the plaintiff had agreed that there had been gradual build-up of stress over the period from when he took on a management position, and that symptoms of panic-attacks had begun to occur in 1999, "or before that."

32 As to the reasons for opinion of the medical panels, counsel conceded that they had been admissible on the basis identified by plaintiff's counsel in his oral submissions.[19] But beyond that, he contended, the opinions led nowhere. They had been based upon "accepted injuries", in respect of which an assessment had to be made of resulting impairment.[20] They did not deal with the question whether the plaintiff had sustained injury on or after 20 October 1999. Acceptance of the happening of physical and mental injury on or after that date did not constitute an admission against the defendant, or give rise to any estoppel. The ruling, erroneous though it had been, had not given rise to any error or miscarriage of justice.

Resolution of the appeal

33 Having regard to the issues mainly agitated by counsel, four questions require discussion: First, did the judge apply the correct template in considering the plaintiff's application? Second, was her Honour's approach to consideration of the facts erroneous in point of principle and/or in its application? Third, did her Honour err in rejecting the admissibility of the reasons for opinion of the medical panels? Fourth, in the event that her Honour erred in any of the three areas, what course should this Court take? Is this Court equipped, in the particular circumstances, to decide for itself whether any injury sustained on or after 20 October 1999 was, in its consequences, serious injury? It is convenient to begin with consideration of the second, and then the third question.

Consideration of the facts

34 It should be assumed, for the purposes of addressing this question, that the plaintiff needed to establish, to succeed in his application, that on or after 20 October 1999 he suffered an injury[21] as statutorily defined, such injury arising out of or in the course of, or being due to the nature of his employment with the defendant, the consequences of that injury meeting the statutory definition of serious injury.

35 Even if the learned judge understood that to be her task, in my opinion she did not address it correctly in point of principle. The matters which the plaintiff needed to establish, in the case of each of the injuries alleged, were to be resolved upon all the evidence before the court. It was not a trial by doctors' opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions. Yet despite her Honour's references to the plaintiff's evidence, I think it is very clear that in substance she did decide critical questions by simple reliance on an asserted want of answers to those questions being provided by the doctors.

36 So, for example, although her Honour apparently accepted that the plaintiff's employment after 20 October 1999 had caused some injury to his hands or wrists, in deciding whether the plaintiff had established that such injury was in its consequences serious injury she appears to have ignored the unequivocal fact that the plaintiff had suffered no symptoms referable to injury to his hands or wrists until some time in 2000; and the further circumstance that, if the consequences of injury to the plaintiff's hands or wrists were such as to constitute serious injury, on no view were any of those consequences present until some time that year.

37 Again, accepting for the moment that the plaintiff had suffered some panic attacks before 20 October 1999, and that medical opinion ascribed the mental disorder present in 2001 and thereafter to stressful circumstances of employment over the years, it is the certain fact that there were reported incidents at work in October 2000 and January 2001, and that the latter of them precipitated the plaintiff's attendance at hospital, referral to a psychologist, a period of months off work, and thereafter a return to restricted duties. Yet her Honour made no reference at all to those circumstances at the point in her reasons where she concluded that there was a deficit in the medical evidence which condemned the plaintiff to failure.

38 Beyond what I have thus far said, I think it very strongly arguable that her Honour made at least one specific error in her fact finding. I have in mind her finding that the gist of Dr Elberg's May 2005 report was that the doctor had been treating the plaintiff for stress-related illness for some years before January 2001.

39 There is another problem with her Honour's findings of fact. I refer to her Honour's use of terms such as "conditions alleged", "stress-related illness", and "mental disorder". To my mind, they were apt to confuse the questions which had to be answered. So, one question was whether the plaintiff had suffered compensable injury to his hands and wrists after 20 October 1999 which had "serious injury" consequences. To describe "the condition" as one that "evolved over a period of time", as her Honour did, was almost certain to inhibit consideration of the critical question.

40 A somewhat different problem was created by her Honour's reference to "stress-related illness" and "mental disorder". Again, the initial question was whether the plaintiff had suffered compensable mental injury on or after 20 October 1999. There needed to be a finding in that connection. The nature of the injury needed to be described. Only then was there a starting point for considering the consequences of that injury. The use of vague, generic terms tended in favour of a conclusion that from the onset of symptoms referable to some psychiatric disorder, such symptoms as ensued were attributable to that disorder, and so represented a continuum which could not be unravelled.

The admissibility of the reasons for opinion

41 I next address the third question which I identified a little earlier. In my opinion, the reasons were admissible on two bases. First, they were part of the material upon which some doctors offered their opinions, and so assisted to explain those reasons. So much was conceded by counsel for the defendant. Second, they disclosed the defendant's acceptance that the plaintiff had sustained compensable injury to his hands and wrists, and mental injury, on or after 20 October 1999, and so constituted an admission against interest. Counsel for the defendant submitted, as I noted earlier, that acceptance of liability in relation to a claim[22] under s.104 B(2)(a) could not stand as an admission against an employer. He raised a similar argument, which I rejected, in the later case of Ansett Australia Ltd & Anor v Taylor[23]. In the event, a document which revealed the making of the admission was admissible in proof of the admission.

42 In the instant case, however, the ruling to exclude the reasons of the panels, though it turned out to be wrong, was wrong for reasons which were not argued in support of the tender at trial. Further, I accept the submission of counsel for the defendant that the exclusion of the reasons was, in essence, of little moment. The other medical reports were still readily understandable; and the judge found, in effect, that the plaintiff had suffered some compensable injury - though it had not been adequately specified - to his hands and wrists, and some mental injury, on or after 20 October 1999.

A wrong template?

43 I go to the first question which I earlier said required discussion. It was said in Barwon Spinners that:

• "Injury" where used in s.134AB(1) "speaks first and foremost of the plaintiff's having (in substance) a compensable injury;"[24] the concept of "injury" being understood to mean "some physiological change to a body part"[25].

• It was not enough, in a case "when injury was suffered to which employment was a contributing factor over a period of time", that impairment to a bodily function arose after 20 October 1999. There must be compensable injury, in the sense described, after that date. Neither was it enough that there be injury after that date "linked to employment whenever occurring". There must be "injury linked to employment on or after the given date"[26].

• "In respect of 'injury' linked to employment on and after 12 November 1997 recovery of damages at common law was proscribed, albeit that in respect of 'injury' linked to employment on and after 20 October 1999 there were now substantial exceptions"[27].

• " ... sub-s (1) is seen to be dominant; it is truly a preface to all that follows in s.134AB, including sub-s.(2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description 'serious injury' if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s.134AB addresses ...".[28]

• "It is enough on any application under s.134AB(16)(b) for leave to bring a common law proceeding to show that the injury relied upon is injury within the ambit of sub-s.(1) and that it is serious injury as defined".[29]

44 Of the four workers whose cases were considered in Barwon Spinners, only in one instance[30] had the worker suffered what the Court described as an "overall injury", it having "evolved over a period of time spanning the critical date." In respect of that matter, counsel for the parties made a number of factual concessions. Against that background, the Court affirmed its rejection of the submission that it was enough, in effect, for impairment to occur on or after 20 October 1999, regardless when compensable injury had occurred. It said this:

"In our opinion it was critical in this instance for the plaintiff to identify, for the purposes of sub-s.(1), compensable injury that was referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff could not establish how far and to what extent s.134AB applied to her case and accordingly could not establish to what specific injury the leave provision in subs.(16)(b) might apply - which meant in turn a failure to establish just what was the injury that had to satisfy the description 'serious injury' if leave was to be given."[31]

"Mrs. Gledhill discovered early in the year 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s.134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an enquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s.134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; but even if we were wrong and it was sufficient to satisfy s.134AB(1) that the injury relied upon (in that case, carpal tunnel syndrome) was in part linked to employment on or after 20 October 1999 (albeit that part of it was referable to employment before that date), the plaintiff might well be no better off because, under s.134AB(2) she is permitted to sue only if the injury 'is a serious injury and arose on or after 20 October 1999'. Either way, then, it may be that a plaintiff must establish the extent to which the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date."[32]

45 Most of what the Court said in Barwon Spinners in the passages which I have cited should admit of no confusion. It is for a plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.

46 The Court used language to describe the conditions of compensability of injury which are not the words of the Act. Thus, for example, it referred to "injury linked to employment on or after" 20 October 1999; and to "injury that is referable to employment" after that date. So also, the Court referred to an "overall injury ... evolving over a period of time spanning the critical date". But any uncertainty which might possibly arise from the use of such language should at once be put to rest when recourse is had to the language of the Act.

47 I should amplify that last observation. As the Act stood when the plaintiff was employed by the defendant, "injury" was defined this way:

"'Injury' means any physical or mental injury and without limiting the generality of the foregoing includes -

. . .

(b) a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and

(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."[33]

48 Pausing for a moment, "injury" - as there defined or more generally for accident compensation purposes - will often be constituted by "some physiological change to a body part". But that will not always be so, as Windeyer J, observed in Ogden Industries Pty Ltd v Lucas[34] in connection with the similar phrase "a sudden physiological change for the worse".

49 Next, at the time when the plaintiff was employed by the defendant, as is now the case, an injury was only compensable if it met one of the conditions of compensability set up by the Act. Most often the circumstances of a case would attract the application of s.82(1); but sometimes s.82(6) or s.86, or perhaps some deeming provision. Section 82(1) used, then as now, the formula -

"Injury arising out of or in the course of any employment".

Sections 82(6) and 86 spoke of injury in the one case, disease in the other, which was "due to the nature of employment".

50 Putting to one side the inclusion in s.82(1) of the words "and if the worker's employment was a significant contributing factor,"[35] the scheme of the Act was thus that injury was compensable if it answered some part of the statutory definition, and if it met one of the conditions of compensability which I have mentioned.

51 Next focus on s.134AB. It is concerned with injuries "arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999". That is made clear by sub-s.(1), which was described in Barwon Spinners as " truly a preface to all that follows" in the section. So, as the Act stood when the plaintiff allegedly suffered injury, and when he was last employed by the defendant, s.134AB(1) addressed injuries which conformed with the then definition, and which met one of the conditions of compensability, provided that such injury was sustained, and that the condition of compensability was satisfied, on or after 20 October 1999.

52 This must be clearly kept in mind. Such an injury could not at the same time be an injury which conformed with the statutory definition and met one of the conditions of compensability before 20 October 1999. That is so even if the two injuries were to the same body part; or if the injury later in time was an aggravation of the injury earlier in time. That is so, also, even if - as here - the worker had the same employer before and after 20 October 1999.

53 Then consider what s.134AB permitted. In short, subject to restrictions, it permitted the recovery of damages in respect of an injury which satisfied a condition of compensability on or after 20 October 1999. Such a right was not to be confused with a right of recovery of damages in respect of compensable injury sustained between 12 November 1997 and 19 October 1999 - for the injuries were necessarily not the same. The latter was prohibited - subject to exceptions - by s.134A.

54 Understanding the structure of the Act casts light upon what the Court meant in Barwon Spinners when it referred to injury "linked" or "referable" to employment on or after 20 October 1999, "but not to employment before it". It was a way of emphasizing that the only injury which could give rise to a right to recover damages under s.134AB was an injury which met a condition of compensability on or after 20 October 1999. The plaintiff must first establish and identify such an injury, and then establish that its consequences met the statutory definition of serious injury.

55 There is a difference between injury, and the consequences of injury. It is recognized throughout the Act, just as it was recognized under the predecessor Workers Compensation Act 1958. It is a distinction which did not require consideration in the one case said in Barwon Spinners to involve "an overall injury" which had "evolved over a period of time spanning the critical date". For there it became common ground, by the concessions of counsel, that -

• "The complaint"- it was carpal tunnel syndrome - had evolved over a period of time.

• Work had been a significant contributing factor, at least over the years, to the evolution of "the condition."

• The plaintiff's symptoms had appeared before October 1999.

• The plaintiff was unable to relate "the ... condition" as it appeared on examination and testing in 2000 "to employment only on or after 20 October 1999".

56 One can understand, in that context, reference to distribution of "the injury"[36] - it was not described in the language of pathology, but rather as a syndrome - over the period of the worker's employment. One can also understand a description of "the injury" as if it were an indivisible whole, and the expressed impossibility of "linking" it to employment after, but not before 20 October 1999. But none of that addresses the difference which exists between injury and its consequences.

57 Returning to that difference, it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible - it will be a matter for determination according to the evidence in the particular case - that each of two or more compensable injuries is a legally sufficient cause of the same consequences.

58 The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it "results from or is materially contributed to by" an injury[37]. The concept of "material contribution" was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words "results from" had been construed to require much less than that injury be the sole cause of a consequence.[38] It is argued by Hill & Bingeman [39] that, given such a history of construction, the causal requirement imported by "material contribution" should be taken to be a lesser requirement still than that encompassed by decisions construing the words "results from". It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.

59 I turn to the first of the two propositions which I stated a little earlier. It can be illustrated by the carpal tunnel injury sustained by the plaintiff in the present case.

60 Carpal tunnel syndrome was not described in much detail in the medical reports. But it sufficiently appeared that the condition involves the compression of the median nerve as it passes through a gap or space - the so-called carpal tunnel - which is located at the base of the palm. It was at least implied, and in any event could not be controversial, that the walls of the tunnel are formed by an admixture of bone and ligament, that within the tunnel run the median nerve, tendons and their synovial sheaths, and that repetitive strains may produce hypertrophy of tissues within the tunnel, this compressing the median nerve and producing symptoms.

61 There was certainly medical opinion that the bilaterial median nerve compression from which the plaintiff suffered - pertinent symptoms having their onset in 2000 - was caused by repetitive forceful use of his hands in his work. On the evidence, the plaintiff performed such work, though not to the same extent in latter years, from the time of his commencement of employment with the defendant until he went off work in early 2001. The medical evidence, in the event, implicated employment strains before and after 20 October 1999 in the development of the compressive neuropathy.

62 Although the plaintiff was symptom free until 2000, it does not follow that before 20 October 1999 he had not sustained "injury" as then defined which met a condition of compensability. It is, I consider, probable that, although he was symptom free, he had indeed sustained compensable injury[40] before that time, although it had no consequence sounding in an entitlement to compensation. Had the plaintiff's carpal tunnels been surgically examined on 19 October 1999, I should think it likely, in light of the medical evidence, that some tissue hypertrophy would have been discovered, though not enough to compress the median nerve - or at least sufficiently compress it to produce symptoms.

63 Pursuing this analysis a little further, if the plaintiff had ceased work in October 1999, and if he had never thereafter exposed his hands to repetitive stressful use, he may never have developed an extent of tissue hypertrophy sufficient to produce symptomatic compression of the median nerve. I do not understand the situation to be that the extent of hypertrophy was likely to have increased once repetitive forceful use of the hands ceased. So, the postulated compensable injury might never have given rise to an entitlement to compensation.

64 But the plaintiff in fact continued to use his hands in stressful fashion at work on and after 20 October 1999. Symptoms of compression developed. The inference is very strong that the plaintiff suffered injury[41]on and after 20 October 1999, involving the further hypertrophy of tissue, and compression of the median nerve on each side sufficient to produce compressive neuropathy. Upon that analysis, the plaintiff sustained injury meeting a condition of compensability in that period. It was productive of consequences. But it does not follow that such consequences - that is, the entirety of the consequences[42] - did not also result from, or at least were not materially contributed to, by injury sustained before 20 October 1999. That is so even though the consequences of injury - which, let it be assumed, met the definition of "serious injury" - did not ensue until after 20 October 1999. Whether there was such a connection would be a question of fact, to be decided on the evidence.

65 Factual variants, I think, further illustrate the matter now under discussion. Suppose, for instance, that the plaintiff had been employed by employer A in the period up to and including 20 October 1999, and by employer B thereafter, but that the facts were otherwise as in this case. The enquiry would still be, at the outset, whether the plaintiff sustained compensable injury in each of the two periods. It is, however, easier to understand why that could be so when different employments are introduced into the factual matrix. But, in principle, the question to be resolved - was compensable injury sustained before, and on or after, 20 October 1999, and did any such injury result in or materially contribute to the incapacitating consequences - would be no different.

66 So also, suppose that the plaintiff had been employed by the defendant only until 19 October 1999 and that he had then engaged in self-employment of a like nature, symptoms developing in 2000. In that situation there would be but one compensable injury; and it would be a question of fact, as is always the case, whether it had resulted in or materially contributed to the later-developing consequences.

67 I consider that, so long as one steadfastly focuses upon what s.134AB permits, and what s.134A prohibits, a case in which a worker sustains compensable injury both before and after 19 October 1999 presents no analytical difficulty. The former section permits - subject to restrictions - recovery of damages in proceedings in respect of compensable injury sustained on or after 20 October 1999. The latter section prohibits - subject to exceptions - recovery of damages in respect of compensable injury sustained between 12 November 1997 and 19 October 1999. In the circumstances as I have assumed them to be, the plaintiff sustained discrete injuries to his hands and wrists attributable to his employment in two discrete periods. A claim for compensation, or a common law proceeding grounded in one such injury and its alleged consequences, is no less a claim so grounded because the plaintiff would have been precluded from recovering common law damages in a claim for the same consequences but founded upon a different injury.

68 What I have just said does not mean, of course, that a defendant could not contend that all or some part of the consequences in respect of which a plaintiff seeks to recover damages were caused only by compensable injury sustained in the period 12 November 1997 - 19 October 1999. Were a defendant so to allege - either on a s.134AB(16) application, or at trial of a permitted proceeding - the issue would then become one of evidence - just as is the case when a plaintiff brings a common law action reliant upon a particular incident and the defendant asserts that the disabilities for which the plaintiff seeks to recover damages are the result of some earlier and statute-barred incident, or some incident in a domestic setting.

69 In circumstances where, as here, the symptoms of bilateral compressive neuropathy only developed subsequent to 20 October 1999, and could be attributed to the further development of median nerve compression in response to repetitive work strains on and after 20 October 1999, it is tempting to conclude that the plaintiff did not sustain compensable injury before 20 October 1999. So to approach the matter would not be without some force. Because it is the fact that the scheme of the Act, as with the predecessor legislation, tends to equate injury with its externally evident manifestation.

70 So, first, a worker must give notice of injury and make a claim in respect thereof within a certain period of its occurrence: see Sections 102(1), (5), 103(1), (b) and 105.

71 Second, compensation is payable, inter alia, for death[43] and for incapacity for work resulting from or materially contributed to by the injury,[44] for injuries (the word is used in a different sense) of a maiming kind and their consequences,[45] for permanent impairment resulting from injury[46], and for medical and like expenses.[47] Each such entitlement bespeaks something that has manifested itself to the detriment of the worker.

72 Third, the calculation of a worker's entitlement to compensation for incapacity is affected by matters such as "pre injury average weekly earnings", "suitable employment" and "current work capacity". See, for instance, ss.93A(2)(b)(i) and 93C(8).

73 By section 5A(1), "the worker's pre-injury average weekly earnings" means, shortly, the average weekly earnings during the 12 months preceding "the relevant injury", or shorter period that the worker has been employed by the same employer, calculated on a particular basis. The section then becomes very complicated, dealing with all sorts of variant situations. But one thing is clear, the section is founded on the notion that there is a discrete time at which injury occurs.

74 Suppose that a worker suffers the onset of incapacitating back pain on a particular day at work, but that the same is a manifestation of compensable injury attributable to employment strains over a period of years, such strains having contributed to spinal degeneration and so set the scene for the emergence of incapacitating symptoms. How should pre-injury average weekly earnings then be calculated? Should they be calculated at the time of the first employment strain, or the last, or some other time? And what happens if the breakdown occurs whilst the worker is at home? The practical answer has been that pre-injury average weekly earnings have always been calculated by reference to the worker's earnings at the time of development of incapacitating symptoms.

75 Much the same considerations apply when one is considering "current work capacity" and "suitable employment". Each of those terms is defined in s.5(1), the definitions referring to the worker's "pre-injury employment". The definitions only work if the external manifestation of unwellness is treated as injury.

76 These are no new things. The same considerations were in point in the provisions for giving notice of injury and making a claim under s.41 of the Workers Compensation Act 1958, in the calculations of "average weekly earnings" for the purposes of clauses 1(b)(i) and (ii) to s.9 of that Act, and in the calculation of "loss of weekly earnings" for the purposes of clauses 1(b)(ii). And, by way of emphasis, such considerations were in point under comparable provisions of the much earlier workmen's compensation legislation of the United Kingdom.

77 But notwithstanding the considerations which I have mentioned, the key provisions of the Act remain those which set out the conditions of compensability. It has long been the law that the effect of such provisions is not to be read down by difficulty in applying provisions to do with quantification.[48] In the event, tempting though it might be to approach an issue such as that posed by the development of the plaintiff's compressive neuropathy on the footing that no compensable injury occurred before 19 October 1999 because no symptomatology developed before that date, I think that it would be wrong in principle to necessarily equate injury with the development of symptoms. That is so although in many cases, of course, occurrence of injury and onset of symptoms will be contemporaneous.

78 Understanding the relevant parts of the reasons in Barwon Spinners in the way which I have explained, did the judge in the present case apply the wrong template? It is, I think, notable that her Honour extracted three passages from Barwon Spinners in which reference was made to the need to identify injury which was referable or linked to employment on or after 20 October 1999, but not employment before it; and that one of the passages which she extracted spoke of distributing, as it were, an overall injury evolving over a period of time between employment before and after 20 October 1999. It is also notable that her Honour spoke of injury which was referable or linked to employment after 20 October 1999 as distinct from employment before that date, and that she referred, in the context of the compressive neuropathy, to the evolution of a condition. Again, there is nothing in her reasons which reveals analysis of the content of "injury", the conditions of compensability, or the distinction between injury and its consequences. Whilst I cannot be certain that the judge did misdirect herself as to the true meaning of Barwon Spinners, what she said, and what she did not say, strongly suggests to me that there was such a misdirection.

What should be done?

79 There were, I have concluded, a number of errors in the judge's consideration of the plaintiff's application. I think it very probable that a finding should have been made, on consideration of all the evidence, and applying principle correctly, that the plaintiff suffered identifiable compensable injury to his wrists and hands on and after 20 October 1999 which resulted in or materially contributed to the consequences which the plaintiff claimed constituted serious injury. Whether those consequences amounted to serious injury was a matter which a County Court judge experienced in this area of work was well-fitted to determine[49].

80 Then, upon the question whether the plaintiff had suffered mental injury on or after 20 October 1999 which had resulted in or materially contributed to the plaintiff's mental state as at trial, there were, as I have said, a number of unsatisfactory features in her Honour's reasoning. The fact that the plaintiff had exhibited some features of some psychiatric disorder attributable to employment stresses before 20 October 1999 did not gainsay him having suffered further compensable mental injury on or after that date. Nor did it preclude a finding that mental injury sustained on or after 20 October 1999 had resulted in or materially contributed to consequences which may shortly be described as the plaintiff's mental state as at trial. These questions were not analysed as they should have been. Had they been considered, and resolved in the plaintiff's favour, a question would then have arisen whether the plaintiff's mental state at trial amounted to serious injury. That, again, was a question which an experienced County Court judge was well-fitted to decide.

81 In the event, I would allow the appeal, set aside the order made by the County Court on 2 August 2005, and remit the plaintiff's application in its entirety[50] for fresh hearing and determination in the County Court.

[1] [2005] VSCA 33.

[2] At [13].

[3] Paras. [44] and [55] ff.

[4] Paras. [59]-[64].

[5] Earlier on, its name was ICIANZ Ltd.

[6] That section requires the Court to decide for itself whether "the injury is a serious injury". But this appeal arises out of the failure of the trial judge to be satisfied that the plaintiff had sustained relevant, identifiable, compensable injury at all. It is, I think, strongly arguable that s.134AD has nothing to say in that connection. If that be so, the course which I propose to take in considering the appeal is still more evidently correct.

[7] [2005] VSCA 33 at [38]- [50].

[8] Ibid at [48].

[9] Barwon Spinners at [13].

[10] Mr Karamanos, psychologist; Dr Kaplan to generally similar effect.

[11] Dr Entwistle.

[12] Dr Strauss.

[13] Dr Nathar.

[14] Dr Honey.

[15] Dr Kenny.

[16] [2001] VSCA 53; [2001] 3 VR 136.

[17] At [12] above.

[18] Counsel's emphasis.

[19] It was, then, common ground that a number of the reporting doctors had been provided with copies of those reasons.

[20] See s.104B(2), (5), (9).

[21] Or more than one injury.

[22] That is, under s.98C.

[23] [2006] VSCA 171.

[24] At [10].

[25] At [9]. This was counsel's language; but, at least implicitly, it was accepted by the Court.

[26] At [7]-[11].

[27] At [12].

[28] At [13].

[29] At [14].

[30] Mrs Gledhill.

[31] At [139].

[32] At [144].

[33] Reprint 12 (page 13).

[34] [1967] HCA 30; (1967) 116 CLR 537 at 592-593. It is not necessary in this case to consider the question whether a worker who had an onset of mental disturbance in, say, 2002, which was attributable to employment stresses over a period before and after 20 October 1999, should be taken to have suffered compensable mental injury before and after that date.

[35] The area of operation of which was described in Hegedis v Carlton & United Breweries & Anor [2000] VSC 380; (2000) 4 VR 296.

[36] Although the idea of distribution of injury is, with one exception, foreign to the Act.

[37] Eg, ss.92(1), 93; cf ss.98A, 98C.

[38] See, eg. Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 at 129-131 per Latham CJ, the cases mentioned in Willis's Workmen's Compensation, 32nd Ed at pp.238-241, and Hill & Bingeman, Principles of Workers Compensation (1981), pp.73-77.

[39] See the previous footnote, at p.76.

[40] Probably, many injuries. But it is convenient to think of injury in the singular. Whether the condition of compensability which was satisfied would have been s.82(1) or (6) need not be considered.

[41] Again, there were probably many injuries. See the previous footnote.

[42] That is, the situation should not be considered akin to the situation considered in Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436.

[43] S.92.

[44] S.93 and following.

[45] Ss.98, 98A.

[46] Ss.98C, 98E.

[47] S.99.

[48] Lysons v Andrew Knowles & Sons Ltd [1901] AC 79, Ball v Hunt [1912] AC 496, King v Port of London Authority [1920] AC 1, McCann v Scottish Co-Operative Laundry Ltd [1936] 1 All ER 475, Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 at 361 per Dixon CJ.

[49] See the citation from Fleming v Hutchinson, Conroy v Viet (1991) 66 ALJR 211 set out in Barwon Spinners at [47].

[50] Including the issue of loss of earning capacity, in connection with which the judge made certain comments.