Hurwood v State of Victoria [2005] VSCA 176

3 In July 2002 the applicant in this matter sought leave from the County Court to commence proceedings under s.135A of the Accident Compensation Act 1985 ("the Act"). Such application was founded on allegations that as a result of aspects of her employment as a police officer she had suffered a 'severe long-term mental or behavioural disturbance or disorder' being a form of serious injury as defined by s.135AB(19) of the Act.

4 The applicant is aged 46. She joined the Victoria Police in 1979. She initially experienced problems when stationed at Benalla where she was posted in 1984. She was placed on sick leave in December 1987 following a diagnosis of reactive depression to her work conditions.

5 She resumed work in 1990 in circumstances where it appears to be common ground that she was at risk of a reoccurrence of her previous condition. Thus Dr Kenny reported to WorkCare on 12 June 1990:

"Naturally if the woman were to be stressed in a similar way in the future she would be very likely indeed to develop similar symptoms, although hopefully she would take action to resolve the situation before it got to the stage it did last time."

6 On returning to work the applicant was able to continue working without

significant problems until February 1997. At that time, while stationed at Sandringham, she came into conflict with a Sergeant stationed at Moorabbin. In or about March 1997 she was transferred to Moorabbin and this conflict continued. As a result she alleges she suffered increasing stress through 1997 and this culminated in a dispute over an alleged breach of confidence by the Sergeant with respect to matters she had discussed with him. Thereafter she continued working in the hope that she would overcome the stress with which she was confronted. In February 1999, however, she broke down and finally realised that she could not go on any longer after a confrontation between other officers and herself over travel claims. She then sought medical help and she has not worked as a police officer since.

7 The essence of the statutory framework within which the applicant commenced proceedings was summarised in Paget v. JLT Workers Compensation Services Pty. Ltd. & Anor[1].

"The provisions of s 135A are well known. In cases to which they apply, they permit common law proceedings for damages to be brought if, and only if, the intending plaintiff is able to access one of a number of 'gateways'. In this case the relevant gateway was that in subs(4)(b), which provides that, in certain circumstances, a person may not 'bring proceedings for the recovery of damages' in respect of an injury unless a court 'gives leave to bring the proceedings'. It is a condition precedent to a grant of such leave that the court be satisfied that the intending plaintiff's injury is a 'serious injury' as defined in subs(19)." (citation omitted)

8 In the present case the applicant filed an originating motion seeking leave to commence proceedings under s.135A(4)(b) of the Act. The respondent then applied by summons for an order that the proceeding be dismissed or permanently stayed on the grounds that it was commenced outside the time allowed by s.135AC of the Act. In turn, the applicant amended the originating motion to seek a declaration that the application was made before the expiration of three years after the incapacity arising from the injury became known. Section 135A relevantly provides:

"(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997-

(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except-

...

(iii) if sub-paragraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and

(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except -

...

(ii) if sub-paragraph (i) does not apply, as permitted by and in accordance with this section.

(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment -

(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or

...

(2A) Subject to sub-section (2D), a worker may not bring proceedings in accordance with this section unless a determination of the degree of impairment of the worker has been made under sub-section (3).

...

(2B) Subject to sub-section (2C), the Authority or self-insurer must make a determination under sub-section (3) within 120 days of receiving a written application for a determination from the worker.

...

(3) If the Authority or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with section 91 be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.

(4) If the Authority or self-insurer has determined in accordance with sub-section (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

...

(b) a court, on the application of the worker made within 30 days after the determination was made or, with the consent of the Authority under sub-section (6A), after that period, gives leave to bring the proceedings.

...

(19) In this section -

"Serious injury" means -

...

(c) severe long-term mental or severe long-term behavioural disturbance or disorder ..."

9 Section 135AC further provides:

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

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

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

10 In the present case the application for a determination under s.135A(2B) was not made until 12 February 2002. The applicant contended in the County Court that the application had been made before the expiration of three years after the date the incapacity arising from the injury became known on or about 18 February 1999.

11 A number of principles are made clear by the authorities applicable to the applications before the County Court.

(a) An applicant for leave must identify the injury to which s.135A(4)(b) applies.

(b) Such an injury is one arising out of, in the course of, or due to the nature of employment in the period between the appointed day 31 August 1985 and 12 November 1997.[2]

(c) The applicant need not establish prior to the trial of the proceeding for damages that the injury referred to in sub-s.(4)(b) was an injury falling within sub-ss.(2)(a) or (b). Nevertheless a respondent may satisfy a court that the applicant has no prospect of establishing that the applicant met the conditions of sub-ss.(2)(a) or (b). In these circumstances the court may refuse the application for leave in the exercise of its discretion not to accede to a futile application.[3]

(d) An applicant for leave must also show that the injury satisfies the definition of "serious injury" under sub-s.(19) as at the date upon which the application for leave is determined.[4]

(e) Because an application for leave under sub-s.(4)(b) falls within the category of "proceedings in accordance with s.135 or 135A", section 135AC may be used as an answer to an application under sub-s.(4)(b).[5]

(f) In cases to which s.135AC(b) applies, the applicant must show that the cause of action arose before 12 November 1997, the incapacity was not known until after that date, and application for a determination under s.135A(2)(b) was made before the expiration of three years after the date the incapacity was known.[6]

(g) The incapacity which is relevant under s.135AC is not the initial injury but the "serious injury incapacity".[7]

(h) The test of knowledge of the incapacity is "actual subjective knowledge".[8]

12 In Paget's case the Court accepted that a County Court judge could decline to grant leave pursuant to s.135A(4)(b) on the basis that the application for leave was commenced contrary to s.135AC of the Act. It was submitted on behalf of the applicant in this case that the decision in Paget was wrong and that s.135AC does not apply to applications for leave under s.135A(4). Counsel for the applicant submit that no cause of action arises upon which s.135AC can bear unless leave is granted under s.135A(4)(b). Counsel further submit that the language of s.135A read as a whole does not support the conclusion reached in Paget. As to the latter argument the matters put forward are insufficient to persuade me the conclusions reached by Callaway, J.A. in Paget concerning s.135AC are wrong. In particular they do not answer the proposition:

"... that the legislature has provided a dictionary in s 135A(2BA), (2DA), (2DD) and (18A) and, more particularly, in s 135A(2DE). Those subsections show that an application under s 135A(4)(b) falls within the description 'proceedings in accordance with this section'. It is appropriate to apply that dictionary to the expression 'proceedings in accordance with section ... 135A' in s 135AC."[9]

13 In my view s.135AC(b) may be understood to bear upon the underlying elements of a cause of action and its effect may be considered at the time of an application for leave made under s.135A(4)(b).

14 Section 135A(4)(b) provides a gateway, not an element of the cause of action.[10]

15 Because the provisions of s.135A are concerned with a specific window in time it follows that the first question which arose for determination in the present case was whether the applicant suffered an injury within the period claimed namely between February 1997 and 12 November 1997 ("the relevant period"). This question which I shall refer to as "the first question" required resolution in order to address the provisions of s.135(4)(b) and as the starting point of the analysis with respect to s.135AC.

16 In Wilson Buchanan, J.A. stated:

"Actions for damages for injuries arising out of or in the course of employment at particular times are subject to different rules. Actions for damages for injuries arising from employment before the appointed day are governed by common law rules. Actions for damages for injuries arising from employment between the appointed day and 12 November 1997 are governed by the provisions of s 135A. Actions for damages for injuries arising from employment between 12 November 1997 and 20 October 1999 are regulated by the provisions of s 134A. Actions for damages for injuries arising from employment after 20 October 1999 must comply with the provisions of s 134AB, which sets out an elaborate system of medical assessments and exchange of medical reports and offers of settlement. In my opinion, an applicant for leave pursuant to s 135A is required to establish that he sustained an injury to which the provisions of the section, not those of another regime, apply."[11]

"It seems to me that the primary task of an applicant for leave under subs (4)(b) is to establish, on the balance of probabilities, that the workplace injury is a 'serious injury' as defined. This involves demonstrating two things. One, that the injury is one to which the Act applies and two, that it is a 'serious injury'. There would be no point to proceeding to determine the second matter if the injury does not fall within the Act. Hence, one of the matters that such an applicant must establish is that the employment related injury arose within the period contemplated by ss 4(1) and 135A(1) of the Act, in this case, between the appointed day and 12 November 1997. As Buchanan JA said, it is the limitations as to time contained in those provisions that form the cornerstone of the regime that regulates the entitlement of the injured worker to bring an action for damages in respect of such an injury. Consequently, that the injury arose during the prescribed period has to be made out at the stage when leave is sought under subs (4)(b)."[12]

18 In the earlier decision of Dalton v Dandenong Scaffolding Hire Co Pty Ltd Ashley, A.J.A., with whom Buchanan and Chernov, JJ.A agreed, stated:

"In considering an application under s 135A(4)(b) a court must, in my opinion, first focus upon the injury which the appellant claims was caused to him in compensable circumstances. That is so for the reasons which I set out in Alcoa of Australia Ltd v. McKenna_[13]_. In a case where the injury is allegedly an aggravation or acceleration of a pre-existing degenerative condition the court must decide whether there was such an injury; not, at the outset, its extent or its impairment consequences. If there was no compensable injury, then the question whether there was serious injury would not arise."[14]

19 In both written and oral submissions the Respondent accepted the logical priority of the first question. Counsel for the Respondent accepted that the identification of an injury within the relevant period was necessary to meet the requirements of ss.135A(4)(b) and 135AC and submitted that the trial judge should be understood to have found that no such injury was proven. They further submit this conclusion was reasonably open and is sufficient to dispose of the appeal. They submit:

"There is no need separately to consider whether or not a relevant incapacity was known by a certain time if the injury itself said to produce the relevant incapacity has not been established and established as having been due to work prior to November 1997. It is probably not even possible, in these circumstances, to consider that question."

20 I turn to the trial judge's reasons. In his judgment the trial judge prefaced, interspersed and concluded his reasons with criticisms of the complexity, and as he saw it, artificiality, of the statutory regime with which he was confronted. Within this framework he set out the history of the applicant's employment in the police force. He accepted that what developed after the applicant took up duties at Moorabbin was:

" ... a rehash almost of the experience which she had suffered back in the early 1980s and early 1990s at Benalla.

The form which this treatment took differed in detail, but not in principle from that which she had experienced on the earlier occasion."

21 His Honour further accepted that in February 1999 the applicant was sent to a police medical officer and was at that time suffering from a:

" ... depressive illness of considerable severity, which makes her totally unsuitable for police duties, but fit for other forms of work not involving the sort of stresses which are the inevitable fate of a responsible police officer."

22 His Honour went on to refer to the form of the proceedings before him and to the terms of s.135AC. He identified the issues which he had to decide as follows:

"And so we then turn our mind to the question as to what needs to be established, first, the cause of action arose before November 1997, and was incapacity arising from that injury in the sense of a serious injury as defined by the Act, and the incapacity arising from that injury was not known until after 12 November 1997, and unless an application for determination under s.135A(2B) had been made to the Authority or self insurer before the expiration of three years after the date the incapacity had become known."

23 It can be seen that this statement appears to conflate the question of the date by which the cause of action and the relevant degree of incapacity must respectively occur. It is submitted on behalf of the applicant that it is this failure to separate out what was required to be proved to establish the existence of a cause of action before 12 November 1997 that led his Honour into error. His Honour went on to repeat the issues before him in similar terms more clearly suggesting error as follows:

"It is a result of interference at various times for various reasons, by the legislature, [that] leads to a passing degree of astonishment that it could get to the stage where in order to arrive at the entitlement of the person to have leave granted to commence common law proceedings, one must endeavour to torture and manipulate the facts of the case into a state in which it can be determined that there was a cause of action which arose before November 1997, and that it did not become known until some time in 1999, and thereafter was known, but the application required by the Act as a precursor to getting leave was within that three year period."

24 His Honour then turned to the medical evidence and observed that there was substantial support for the conclusion that the applicant was suffering from a serious injury but the question in issue was "when was it known that this incapacity existed?"

25 His Honour analysed the medical reports in evidence before him, interpolating reference to work records of the applicant. He concluded by quoting the summary of Mr B. Holwith, a consulting psychiatrist:

"... she presents with a history of chronic anxiety and depressive symptoms as a result of quite marked constant and severe work stress occurring over a protracted period of time during her employment in the Victoria Police Force initially in Benalla. The work stress developed as a result of the attitude of the local Inspector who disapproved of female operational members and subjected her to constant harassment, aggression, verbal abuse and sexual innuendo. This effectively alienated her from the rest of her colleagues with whom she had already established an excellent working relationship. She developed a moderately severe anxiety and depressive illness in this setting and was eventually placed on sick leave. [With] the sick leave, appropriate treatment and moving away from the area, she effected a partial recovery and was able to return to work on non-operational duties. She coped with those well for some five years until she was placed in a similar situation by a sergeant who treated her in a similar manner. He also treated another female member of the police force in the same manner. She again reacted with the development of moderately severe chronic anxiety and depression. Since being on sick leave since March of this year she has made little in the way of recovery. I believe the initial development of her psychiatric state does relate to her experiences while working in Benalla. She never fully recovered from that illness, and I believe it has sensitised her to further episodes of decompensation when confronted with similar though perhaps less severe work stress."

26 His Honour accepted this summary and stated that it placed "the whole of this application in its appropriate context." He went on to conclude:

"It is a terribly artificial thing to try to work out a cause of action arising from between the time she transferred from Sandringham to Moorabbin to 12 November 1997, and then discover the extent of incapacity some years later in February 1999, for the purposes of endeavouring to put the applicant in a position where she is able to address the common law.

The situation that is created by the legislation here is as I have already said, in my view, unsatisfactory, to put it mildly. It is not Mrs Hurwood's fault that the facts are endeavoured to be tortured in this way, in order to derive the benefit of an application at common law. It results directly from the posture which our legislature has adopted, which brings this about in the presence of s.135AC with its prohibition and the qualifications contained therein. In this case with the background to this lady, her previous illness, only partially recovering, further harassment, to attribute the state that she is now in to the period of time between the time she went from Sandringham to Moorabbin to 12 November 1997, is to my mind unsatisfactory and artificial. It cannot in my view reach the point where I could be satisfied that first of all the cause of action arose in that brief period of just a few months, remaining undiscovered only to come to light a couple of years later in this situation which was far more distressing, potentially stressful than that which existed simply by virtue of the transfers from Moorabbin to Sandringham and the immediate aftermath thereof.

And in those circumstances, it is my duty - not one that I particularly relish, to dismiss this application."

27 These conclusions were the subject of challenge in this Court on the basis that the trial judge erred in the interpretation or in the application of s.135A(2) and s.135AC(b) of the Act. It was further contended that the trial judge ought to have granted the applicant leave to bring proceedings.

28 It can be seen that his Honour's conclusions did not in terms address what I have called the first question namely whether the applicant suffered an injury during the relevant period. Mr Forrest, who appeared as senior counsel for the respondent, accepted that no finding had been made with respect to this question but submitted that the Court should conclude:

(a) that the trial judge must be taken to have reached a conclusion adverse to the applicant upon this question having regard to the terms in which he expressed his conclusions relating to a cause of action; or

(b) that his Honour was bound to so find on the evidence before him in any event.

29 Insofar as the first contention is concerned, his Honour's conclusions do not in my view allow any inference to be drawn that he addressed the first question. He seems rather to have first regarded the existence of a pre-existing level of illness arising out of prior employment as precluding a finding in favour of the applicant, when this cannot be the case without further analysis. He seems then to have regarded s.135AC as requiring the cause of action to remain undiscovered during the relevant period, when it is in the terms of s.135AC(b) "the incapacity arising from the injury" which the applicant must show was not known until after 12 November 1997. This confusion mirrors the confusion in the statements of issues made by his Honour to which I have previously referred. It also demonstrates his Honour's conclusions of fact did not justify a finding adverse to the applicant pursuant to s.135AC(b).

30 Whilst it is true that his Honour's conclusions must be understood in the context in which the case was put to him and that, even if he misapprehended the relevant legal issues, his findings of fact may potentially be determinative of the matter, nevertheless it seems to me that his Honour's reasons simply do not resolve the relevant factual issues.

31 The case was put to his Honour on behalf of the respondent on the basis that the evidence did not allow a conclusion that the relevant injury "crystallised" in the relevant period. Unfortunately his Honour's reasons did not respond to this submission with any precision. As a result the context of submissions in which his Honour's conclusions were expressed does not resolve the fundamental difficulty attending his reasons. It follows that the applicant has succeeded in demonstrating specific error in his Honour's reasons.[15]

32 In the alternative to an attempted defence of his Honour's reasons Mr Forrest advanced detailed submissions that the evidence before his Honour led in any event to the inevitable conclusion that the applicant had not suffered an injury during the relevant period. I do not accept this is so.

(a) As his Honour accepted the weight of the evidence showed the plaintiff was vulnerable to a reoccurrence of mental disturbance in the event of work related stress.

(b) Again, as his Honour appears to have accepted (and despite some genuine conflict in the evidence as to the precise course of events), the weight of the evidence supported the view the applicant did suffer stress prior to 12 November 1997 as a result of harassment from a superior.

(c) There was evidence of the consequences upon the applicant of this stress, comprising a rolled up comparison by the applicant between her condition at the time of her earlier breakdown and her condition in November 1997, and a description of her symptoms by her husband.

(d) Although the applicant neither sought nor obtained medical treatment for her mental condition during the relevant period, it does not necessarily follow that she did not suffer injury at this time.

(e) It was not necessary for the applicant to show that she suffered a condition recognised during the relevant period by a medical practitioner although her cause of action ultimately required evidence of a "recognisable psychiatric illness".[16]

(f) There was medical opinion that as a result of work stress suffered within a period including the relevant period, the applicant had suffered a stress related condition which would amount to an injury in the relevant sense. The opinion evidence did not expressly address the question whether she had suffered injury during the relevant period but it potentially enabled a conclusion as to injury during the relevant period to be drawn from the evidence as a whole.

(g) The expert medical opinion as to the applicant's psychiatric state was largely dependent upon acceptance or non-acceptance of the history given by her to the experts. Thus Dr Stern, a psychiatrist, who saw the applicant for the respondent, expressed the opinion on 7 April 1999:

"She described harassment from her sergeant over the past two years. If this is correct, then employment has been a significant contributing factor. This is a primary reaction and not secondary to physical injuries."

On 20 May 1999, on the other hand, Dr Stern stated:

"If Acting Inspector Goode is correct in that there was no victimisation or harassment at work and that her current psychiatric condition is due to the investigation over false travel claims in February 1999, then this claim comes within the realms of s.82(2a) and employment is not a significant contributing factor."

33 Although Mr Forrest urged a number of considerations relating to the facts which might be thought to present difficulties for the applicant's case, in my view such matters went to aspects of the relative weight of the evidence with which the Court was presented. It cannot be said that it was not open to the Court to conclude that the applicant suffered injury during the relevant period. It follows that the specific error in his Honour's reasons which has been demonstrated must be regarded as a vitiating error. On the other hand, it likewise in my view cannot be said the Court was bound to conclude that the applicant had suffered such an injury. The resolution of the question in issue depended in large part on an assessment of the applicant's credit as to a series of circumstances and details together with an assessment of the medical evidence in the light of the applicant's evidence. This Court has not had the benefit of observing the applicant's oral evidence, and given that her evidence was attacked both with respect to its accuracy as to matters of detail and as to her truthfulness, this Court should not in my view enter into the formation of a factual conclusion as to the first question. This question should be resolved by a judge at first instance.

34 Accordingly in my view leave to appeal should be granted nunc pro tunc insofar as is necessary, [17] and the decision of the County Court should be set aside and the matter remitted for hearing in accordance with law by a judge of the County Court other than the judge who has previously dealt with the matter.

[1] [2005] VSCA 144 per Callaway, J.A. with whom Winneke, A.C.J. and Charles, J.A. agreed.

[2] Dalton v. Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 per Ashley, A.J.A. at [38]; Wilson v. State of Victoria [2004] VSCA 55 per Buchanan, J.A. at [14]-[16] and Chernov, J.A. at [23]

[3] Alcoa of Australia Ltd. v. McKenna [2003] VSCA 182; (2003) 8 V.R. 452

[4] Wilson at [17]

[5] Paget at [22]

[6] Paget at [28]

[7] State of Victoria v. Collins [1998] VSCA 129; [1999] 1 V.R. 215 at 222, Paget at [30]

[8] Paget at [29] and [34]

[9] Paget at [20]

[10] cf. Wilson v. Nattrass (1995) 21 M.V.R. 41 per Ashley, J. at 57 and per Hedigan, J. at 60, dealing with parallel provisions of the Transport Accident Act 1986.

[11] Wilson at [16]

[12] Ibid at [23]

[13] Above

[14] Dalton at [38]

[15] cf. Mobilio v. Balliotis (1998) 3 V.R. 833 at 835

[16] cf. Koehler v. Cerebos Australia Pty. Ltd. (2005) 79 A.L.J.R. 845 at 850 [33] per McHugh, Gummow, Hayne and Heydon, JJ.

[17] Cowden v. Transport Accident Commission [2003] VSCA 198; (2003) 39 M.V.R. 442 and Wilson at [21]