Johnstone v TAC [2003] VCAT 740

General List - Transport Accident Act 1986 - s.68(1) - Transport Accident (Amendment) Act 2002 - law to be applied - whether accrued right to compensation at time injury manifests itself -

Medium Neutral Citation [2003] VCAT 740

1. The decisions of the respondent of 21 January 2002 and 4 April 2002 are affirmed.

For Trevor Johnstone: Mr A Keogh instructed by Arundell Murray and Ryan

For Transport Accident Mr M Fleming, instructed by TAC Law

1. By application for review filed with the Tribunal on 7 June 2002, the applicant sought to review two decisions of the Transport Accident Commission ("TAC") made pursuant to the Transport Accident Act 1986 ("the Act"). The decisions were described in the application as follows:

* 21 January 2002 - "certificate as to serious injury and financial compensation"

2. TAC characterised the decisions under review in its statement filed pursuant to s.49 of the Victorian Civil and Administrative Tribunal Act 1998 as follows

* 21 January 2002 - denial of loss of earnings and loss of earning capacity

* 4 April 2002 - denial of claim for compensation.

3. Mr Keogh, counsel for the applicant, correctly, in my view, did not dispute TAC's description of the decisions to be reviewed. The applicant's claims which are the subject of these decisions relate to his condition of epilepsy.

4. The applicant suffered injuries in a transport accident on 10 October 1987 ("the transport accident") when he was aged 26 years. At the time of the accident he was a passenger in a car which hit a tree. He was taken initially to Echuca Hospital and later transferred to the Royal Melbourne Hospital. On 11 November 1987 he was admitted to a rehabilitation programme at the Head Injury Unit of Bethesda Hospital. Dr John Olver treated the applicant at the Bethesda Hospital. He said in a report of 7 December 1992 that the applicant suffered a close head injury in the accident with a CT brain scan revealing a left frontal intracerebral haematoma.

5. The applicant's claim for compensation was lodged with TAC on 27 October 1987. In the claim form, the injuries sustained by him in the accident were described as "head injury". On 5 November 1987, TAC accepted liability for medical and like expenses. On 10 December 1987, TAC accepted the applicant's claim for loss of earning benefits.

6. Following the accident, TAC and the applicant's solicitors arranged for the applicant to be examined by a number of doctors for the purposes of providing impairment assessments in accordance with section 46A of the Act. On 18 December 1990, TAC determined the applicant's impairment as a result of the transport accident at 20%.

7. Dr Robert Hjorth, neurologist, treated the applicant subsequent to the accident, having first treated him on 11 October 1988. On 6 March 1989, he examined the applicant and provided a report of that date. In the report he said he assessed the applicant pursuant to the Guides to the Evaluation of Permanent Impairment 2nd Edition ("the Guides"), as having a 20% whole person impairment under Table 2.1.15 for emotional disturbances and 10% whole person impairment under Table 2.1.14 for "loss of memory and concentration interfering with complex integrated cerebral function".

8. On 12 June 2001, the applicant consulted Dr Hjorth again. In his report of 13 June 2001 to Dr Peter Higgs, the applicant's treating general practitioner, Dr Hjorth said that he obtained a history from the applicant that he had been blacking out and fainting. Dr Hjorth expressed the view that "the overwhelming probability is that this man has post traumatic epilepsy. The little attacks are complex partial seizures originating from the left frontal lobe ridge". Dr Hjorth arranged for the applicant to have a repeat EEG and an MRI scan of the brain.

9. It would appear that in July or early August 2001 two accounts of Mr Hjorth of 11 June 2001 and 6 July 2001 were sent to TAC for payment. In a letter dated 6 August 2001 to TAC, Dr Hjorth said in part:

"I can understand your surprise at this man resurfacing after so many years. [The Applicant] had a motorcar accident on the 10/10/1987. ....

There can be no doubt that this was a severe head injury and he suffered intellectual damage as a result of it and there are substantial MRI changes.

He was free of epilepsy until about 12 months ago when he started getting seizures. In the present context of such a severe head injury and with an MRI scan that shows the changes of left fronto-temporal haemorrhagic contusion, the only reasonable assumption is that this epilepsy is a delayed manifestation of his severe head injury. My accounts of the 11/06/01 and 06/07/01 are indeed related to that accident".

10. By letter to Dr Hjorth dated 20 August 2001 TAC requested that he provide it with the MRI report and advised it would process his accounts. TAC also arranged for the applicant to attend an examination with Professor Christine Kilpatrick, neurologist.

11. By letter dated 24 September 2001 to TAC, Arundell Murray & Ryan stated as follows :

"We act for the abovenamed who received severe head injuries in a motor accident in 1987. We note that our client's Neurologist, Dr Hjorth has been in contact with your office and we have a copy of his Report dated the 6th August connecting the current manifestation of symptoms to the occurrence of the motor accident. We note further that our client is to see an independent specialist at your request.

It would appear to us that there is little doubt that our client has suffered a serious injury within the meaning of the Act. In view of the lapse of time between the original accident and the current problems we enquire as to whether any formal Application is to be made by us in relation to the matter or whether it is simply a matter of re-visiting the original Application. We would be pleased to have your advice as to procedure we are to follow".

It would appear that TAC did not respond to that letter.

12. In a report dated 7 November 2001 to TAC, Professor Kilpatrick stated in part as follows :

"In conclusion, it is my opinion this man has developed epilepsy, and this is most likely post-traumatic epilepsy directly related to the head injury of 1987. It is recognised that seizures can develop many years after a head injury, and in my opinion this is an appropriate explanation for his current condition".

13. On 10 December 2001, TAC accepted liability for the treatment of the applicant's epilepsy, as being related to the head injuries sustained in the accident on 10 October 1987.

14. By letter to TAC dated 11 January 2002, the applicant's solicitors, Arundell Murray & Ryan, claimed "financial compensation" in relation to the applicant's inability to work as a result of the epilepsy. In addition, a certificate was sought from TAC that the epileptic seizures suffered by the applicant be treated as a serious injury. By letter to Arundell Murray & Ryan dated 21 January 2002, TAC denied the applicant's claim.

15. By letter dated 1 March 2002 to TAC, Arundell Murray & Ryan provided a claim form signed by the applicant. In the form the applicant listed his injuries sustained in the accident as "epilepsy/ episodic neurological disorder". TAC received it on 4 March 2002. By letter dated 4 April 2002 to that firm, TAC stated that the claim was "invalid".

16. As indicated earlier, an application for review was filed on behalf of the applicant on 7 June 2002 in respect of TAC's decisions.

17. At the conclusion of the hearing before me on 2 June 2003, at the request of the parties, I ordered that any further submissions upon which the applicant relied be filed and served by 6 June 2003 and any answering submissions of the respondent be filed and served on 13 June 2003. In the event, neither party found it necessary to file further written submissions.

18. A written statement by the applicant dated 28 May 2003 was tendered in evidence on his behalf. In the statement he described the circumstances in which he first suffered symptoms of epilepsy and the effect of the condition on his life.

19. A written statement by the applicant's wife, Mrs Lynette Johnstone, dated 28 May 2003, was tendered in evidence. In it she described the first occasion her husband suffered a fit in late 2000 and his subsequent symptoms of fits and headaches. It is clear from the statements of the applicant and his wife that the epilepsy has had a significant effect on him.

"A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if -

as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year -

(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself."

22. The Transport Accident (Amendment Act) 2000 (Act No 84/2000) ("the Amendment Act") came into effect on 28 November 2000. Section 24(1) states :

(1) For section 68(1)(d) of the Transport Accident Act 1986 substitute -

(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself".

23. In Transport Accident Commission v Dafopoulos [1997] 2 VR 232 the Court of Appeal considered s.68(1)(d) of the Act prior to its amendment. It was held by Tadgell and Ormiston JJA (Phillips JA dissenting) that the period of one year for the purposes of s.68(1)(d) of the Act ran from the first manifestation of the particular injury for which compensation was claimed under Part 3 of the Act, not from the first manifestation of any injury caused by the accident in question.

24. Prior to the Amendment Act s.68(1) of the Act provided as follows :

(b) who is a dependant or a surviving spouse of a person who dies -

as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year -

(d) in the case of a person injured, if the injury did not manifest itself at the time of the accident, after the injury first manifested itself".

25. It was agreed by the parties that the applicant's condition of epilepsy first manifested itself in October/November 2000, prior to the Amendment Act coming into force, and that the transport accident caused the epilepsy.

26. Two issues arise in this application for review. They are as follows:

* If the Amendment Act does not apply, is the epilepsy a separate condition from the head injuries suffered by the applicant in the accident for which he claimed compensation on 27 October 1987?

27. It is common ground that the Amendment Act does not have retrospective effect. Further, if it applies, TAC, and the Tribunal standing in the place of TAC, has no power to accept the applicant's claim for compensation in relation to his epilepsy having regard to the amended provisions of s.68 of the Act. That provision, as amended, requires a claim for compensation to be made within one year of any injury first manifesting itself. The applicant's claim in relation to his epilepsy condition was made some 13 years after his initial injuries were first manifest.

28. Both counsel referred to the decision of Needham v TAC (G879/2002 15 May 2003 unreported), where I considered similar issues. Mr Needham suffered concussive injuries in a transport accident in 1987. His claim for compensation was lodged with TAC on 30 April 1987. The claim was accepted and he was paid benefits under the Act. In December 1999 he was diagnosed as suffering from the condition of epilepsy. The epilepsy resulted from the concussive injuries sustained by him in the transport accident. On 20 July 2000, prior to the Amendment Act coming into force, he made a claim for loss of earnings and an adjustment to his impairment benefit. The claim was rejected by TAC, in part on the basis that the claim was out of time.

29. Mr Fleming, who appears as counsel for TAC in this case and who also appeared for TAC in Needham, argued in Needham that the Amendment Act applied as no right had accrued to Mr Needham at the time the Amendment Act came into force. Mr Croyle, who appeared for Mr Needham, submitted that the effect of s.35(1) of the Act was that the applicant's right to compensation accrued under the Act at the time he suffered injury in the accident. In my reasons for decision, I found that a right accrued to Mr Needham when he made his claim to TAC for compensation in relation to the epilepsy. In so finding, it was not necessary for me to consider Mr Croyle's submission.

30. At paras 44-47 of my reasons for decision I said as follows :

"In Re Dempsey and State Superannuation Board (1995) 8 VAR 160, Deputy President Macnamara considered whether Mrs Dempsey had an accrued right to rely on the definition of "disability" appearing in the State Superannuation Act prior to the amendments to the Act. At p.165, he said :

'In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 Dixon CJ said:

'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had to find with reference to past events'.

This principle is further exemplified by the Interpretation of Legislation Act 1984 (Vic). Section 14(2) provides inter alia :

the repeal, amendment, ... shall not, unless the contrary intention expressly appears -

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision'.

The question then whether one applies the common law maxim referred to by Dixon CJ or the provisions of the Interpretation of Legislation Act is whether there is any accrued right on the part of Mrs Dempsey or liability on the part of the Board.

Mr Shand submitted that since no retirement had been effected as yet the mere taking of administrative steps towards the exercise of a right or an application for that right was not sufficient to create an accrued right or liability. See for instance Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819. It seems to me that Mrs Dempsey had a right as soon as her administrative reconsideration was unsuccessful to appeal to this Tribunal under s.85(2) of the 1988 Act. She availed of that right prior to the amendment to the 1988 statute. It is true that her application for review as made out of time. The effect of the Tribunal's order extending time is, however, to cure that defect retrospectively. .....

Mr Coish on behalf of the applicant submitted that his client's case was similar to that of the appellant in Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430. Mr Esber was a former member of the Defence Forces receiving weekly payments under the Compensation (Commonwealth Government Employees) Act 1971 (Vic). That statute gave him an entitlement to redeem those weekly payments by receipt of a lump sum. His application to the Commonwealth Administrative Appeals Tribunal for review was out of time but the time was extended. After the application for review but before the hearing the 1971 Act was repealed. The High Court held that Mr Esber had an accrued right to have his application dealt with in accordance with the 1971 Act. It decided this primarily upon transitional provisions which have no counterpart in the present case. However, as an alternative basis for its decision the Court relied upon s.8 of the Acts Interpretation Act 1901 (Cth), which in this regard is not substantially different from the Victorian enactment. Mason CJ, Deane, Toohey and Gaudron JJ said at 440 that Mr Esber 'had a right to have his claim for redemption determined in his favour if the delegate had wrongly refused his claim ...'. Once the appellant lodged an application to the Tribunal to review the delegate's decision he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not 'a mere right to take advantage of an enactment' nor was it 'a mere matter of procedure, it was a substantive right'.

In my view these principles apply to the present appeal and accordingly it is the definition of disability appearing in the State Superannuation Act 1988 (Vic) prior to 20 December 1994 which is relevant to this appeal. The facts are strikingly similar to those in Esber's case. The applicant had an accrued right no later than the time when she lodged her application for review of decision'.

Mr Fleming submitted that Esber, on which Macnamara DP relied, did not apply as Mr Esber's right to have his claim to redemption determined in his favour accrued at the time he lodged an application for review with the Administrative Appeals Tribunal. In the present case, the Amendment Act came into force prior to the filing of an application for review by the applicant.

I accept that Esber and Dempsey were decided on different facts. However, in my view, the applicant had a right to make a claim for compensation for epilepsy at least from the time the condition first manifested itself and he made a claim to TAC for loss of earnings and an adjustment to his impairment benefits in relation to his epilepsy. This was on or about 20 July 2000, prior to the Amendment Act coming into force. By the time he made his claim, he had an accrued right, (which might fructify during the assessment process) to have his claim dealt with in accordance with the law as it stood prior to the Amendment Act. In my view, the right remained a right, notwithstanding it was conditional upon a decision by TAC to accept his claim, or if TAC rejected his claim, conditional upon a successful review by the Tribunal.

Such an approach appears to be consistent with the following passage by Mason CJ, Deane, Toohey and Gaudron JJ in Esber at p.440 :

'If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in N.S.W Aboriginal Land Council v The Minister [The Winbar Claim] (17) :

'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional'."

31. Mr Keogh made a similar submission to Mr Croyle's submission in Needham. He argued that a right to compensation accrues under the Act if a person is injured as a result of a transport accident. This, he submitted, is clear from the words of s.35(1) of the Act. In the present case the applicant's right accrued prior to the Amendment Act coming into force, when the epilepsy first manifested itself. The making of a claim in accordance with s.67 of the Act is procedural and does not confer a right to compensation. In particular, the Act does not say that it is upon the making of a claim that a right accrues. Mr Keogh did not refer to any authorities in support of his submission.

32. It was submitted by Mr Fleming that the Amendment Act applied because no rights to compensation accrued to the applicant prior to the coming into operation of that Act. For such a right to accrue, the applicant needed to have at least "set the statutory machinery in train" by requesting additional compensation, prior to the Amendment Act coming into force. In support of his submission, he relied on several authorities, including a decision of the New South Wales Court of Appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 420 NSWLR 685 at 696.

33. In that case, the Court, constituted by Hope, Samuels and Clarke JJA, stated that :

"A statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of a an official or a court, provided that the statutory machinery for obtaining that decision has been set in force before the repeal or amendment".

This statement was endorsed by the High Court in Esber v Commonwealth [1992] HCA 20; (1992) 106 ALR 577 at 583.

34. Mr Fleming argued that Needham could be distinguished, because in the present case, the applicant's claim for compensation was made after the Amendment Act came into force. In Needham, a claim was made in respect of the epilepsy, prior to the change in law.

35. I accept Mr Fleming's submission. In the cases referred to earlier, where rights were preserved, "statutory machinery" had been commenced for the obtaining of a decision or benefit prior to the repeal or amendment of the statute. In the present case, TAC received no notification of the applicant's epilepsy until after the Amendment Act came into force. On the material before me, the earliest possible date on which it could be said to have received notification of a claim was when Mr Hjorth's accounts were sent to it in July or early August 2001.

36. I do not accept Mr Keogh's submission that the applicant's right to compensation accrued at the time the epilepsy manifested itself, by virtue of s.35(1) of the Act. That section gives an entitlement or right to compensation to a person injured as a result of a transport accident "in accordance with this Act".

37. The payment of compensation is subject to the various provisions of the Act. For example, payment of loss of earnings and loss of earning capacity benefits, which is one aspect of the applicant's claim, must be made subject to the provisions of sections 44, 45, 49 and 50 of the Act. Determination of an impairment benefit must be made in accordance with the Guides and subject to the provisions of s.46A(1B).

38. The applicant, when his epilepsy manifested itself, had only a "right to take advantage of an enactment". (See Esber at p. 440). He did not have an accrued right at the time the Amendment Act came into force, because he had not made a claim in respect of his newly manifested condition.

39. In view of my findings, it is not necessary to deal with the second issue for consideration, namely, whether the epilepsy is a separate condition.

40. Accordingly, the decisions under review are affirmed. I reserve the question of costs.