Linfox Transport (Aust) Pty Ltd & Anor v Toohey [2004] VSCA 233

2. For the reasons stated by Byrne, A.J.A., I would allow the appeal, set aside the judgment and orders given and made by His Honour Judge Pilgrim on 6 October 2003 and in lieu thereof give judgment for the defendants in the proceeding below, with costs.

12. In December 2001 the respondent, Gerald Toohey, suffered an injury to his lower back in the course of his employment with the firstnamed appellant, Linfox Transport (Aust) Pty Ltd. On 24 July 2002, the worker lodged with his employer claim number 09 01 73593/E5, for impairment benefits under s. 98C of the Accident Compensation Act 1985.[1] In his claim the worker gave as injury details "back, right leg, sexual dysfunction, stress and anxiety".

15. Some four months later, on 25 November 2002, the secondnamed appellant, Allianz Australia Workers Compensation (Victoria) Ltd, responded to the claim pursuant to s. 104B as the authorised agent of the Victorian WorkCover Authority. In this response Allianz rejected liability in relation to the injuries to the right leg, sexual dysfunction, stress and anxiety. It seems that liability in relation to the claim for the back injury was accepted. The worker referred the disputed liability to conciliation and, on 18 December 2002, obtained a certificate under s. 49.

18. Then, on 6 January 2003, the worker submitted a second claim, number 09 02 65805/E5, for medical and like expenses pursuant to s. 99 in which he set out as his injury details, "injury to the right leg and sexual dysfunction" and, under the heading psychiatric injury, "psychiatric injury including but not limited to stress and

anxiety and otherwise to be advised". On 18 February 2003, Allianz responded, rejecting the claim for stress and anxiety but accepting it for the right leg and sexual dysfunction. This decision does not appear to have been challenged and nothing more needs to be said about it.

22. Meantime, on 15 January 2003, the worker had commenced this proceeding in the County Court seeking a declaration that he is entitled to an acceptance of liability for injury pursuant to s. 98C or s. 98E or both of these sections, and for an order that Allianz conduct an impairment assessment pursuant to s. 104B. In due course, the County Court on 6 October 2003 made the declaration sought and ordered Allianz to set in train the impairment assessment processes under s. 104B(4).

25. The point at issue raised before the trial judge and on the appeal was as to the correctness of the worker's contention that he suffered injuries to his right leg and to his sexual function. The position adopted by Allianz before the trial judge and on appeal was that the conditions affecting his right leg and sexual function, assuming they existed, were not independent injuries for the purposes of s. 98C and 98E; they were to be treated for these purposes as secondary consequences of the accepted injury to the worker's back.

28. The significance of the resolution of this dispute, it was said, was that, if the leg pain and sexual dysfunction are treated as secondary consequences of the back injury, their impact upon the worker's activities of daily living must be assessed as part of the worker's permanent whole of body impairment resulting from his back injury. If, on the other hand, these conditions are seen as independent injuries, the impact of each upon the worker's activities of daily living must be assessed separately. Having regard to s. 104B(5B), it may be thought surprising that this would be of any practical significance[2].

31. The trial judge thought that the significance of the dispute may lie in future if further claims were to be made by the worker for compensation for the leg injury and his sexual dysfunction. If they are separate injuries and Allianz does not include them as injuries for assessment in its statement under s. 104B(5C), and the worker does not dispute this, he is barred from making later claims for those injuries arising from the events of December 2001.

34. His Honour analysed the medical evidence as to the nature and causes of the suggested injuries and found that the worker suffered pain in the leg and that this was due to spinal nerve route irritation at L4 which itself was caused by the disc injury to that part of the spine sustained in the December 2001 incident at work. His Honour accepted, too, that the sexual dysfunction existed and that it was not due to any neurological cause but to persistent pain from his lower back injury which caused him to lose his erection. His Honour concluded from this that this pain and dysfunction were, each of them, a separate injury which the worker suffered as well as the admitted injury to his back. His Honour's reliance upon the following passage from the judgment of McHugh JA in Department of Public Works v Morrow[3] makes it plain that he accepted that each of them was an injury because they represented a loss of function in a part of the worker's body notwithstanding that this loss was the product of the injury to the back.

"But I think that the difficulties of applying s. 16[4] in a case such as the present are to be met by insisting on a precise characterisation of the `loss' in question. Is the reduced use properly characterised as the `loss of the efficient use of' a limb? Or is the reduced use merely the consequence of another disability? A person who no longer runs as fast or lifts as much as he did because of fear of a heart attack would not ordinarily be regarded as having lost the efficient use of his arms or legs. On the other hand where the reduced use of a limb is directly caused by pain in another part of the body, it is natural enough to consider the reduced use as constituting a `loss of the efficient use of' the limb. From the point of view of the worker, for practical purposes, he has lost the use of the limb. It can hardly matter that the pain which prevents the use of the limb is located in the back instead of the limb. Section 16(5) is concerned with the efficient use and not with the physiological impairment of the limb."[5]

38. On behalf of Allianz it was contended before us on the authority of Kennedy Cleaning Services Pty Ltd v Petkoska[6] that the conclusion of the trial judge constituted an error of law, for it has long been held that an "injury" is "a sudden or identifiable physiological change"[7] or "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state".[8] There was no finding nor, indeed, any allegation of the presence of such a change in the worker's right leg or sexual organs. The submission in response on behalf of the worker was that, accepting that such a change had to be demonstrated, it was sufficient that there be some sudden and identifiable change to the normal functioning of the organ or body part notwithstanding that this is not accompanied by any physiological change.

41. Before I turn to the decision in Morrow's case, it is necessary to underline that we are here concerned with the construction of the word "injury" as it is used in the Victorian statute. There, "injury" is defined in s. 7 to mean "any physical or mental injury". The definition then goes on to make it clear that the word at least includes industrial deafness, disease (subject to certain qualifications) and the recurrence or aggravation of a pre-existing injury. Section 82 entitles a worker to compensation where he or she suffers an injury in certain circumstances. Leaving to one side weekly payments and the payment of medical expenses, the worker may recover compensation, under the compensation regime established in 1997 for injuries arising on or after 12 November 1997, for non-economic loss under s. 98C or 98E. Section 98C(1) is in these terms:

(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with s. 91, entitled to compensation for non-economic loss calculated in accordance with this section."

45. These words strongly suggest that a distinction is drawn in this provision between the injury, on the one hand, and, on the other, impairment which would include the loss of function to any part of the body where this loss is shown to have been the result of the injury.

48. Department of Public Works v Morrow[9] turned upon the construction of the New South Wales legislation which is relevantly different from that presently under consideration. Section 16 of the New South Wales Act creates an entitlement to compensation where a worker has received an injury mentioned in the table. The injuries mentioned in the table are described as "loss of..." a body part. Sub-section (4) provides that "loss of" includes "permanent loss of the use of" and, by sub-s. (5), this includes "permanent loss of the efficient use of". It is clear that the section requires an enquiry as to the loss of function rather than as to the nature of the underlying injury. In that case the worker lost the effective use of his arms and legs because their movement caused him pain in his injured back. The New South Wales Court of Appeal concluded that, under s. 16, the worker was entitled to compensation for the loss of use of those parts of his body notwithstanding that this loss of function was only indirectly the result of the compensable injury to the back.

51. Before this Court it was accepted that this approach may have been appropriate for a claim under s. 98 under the old Victorian table of maims[10] but s. 98C speaks of "an injury resulting in permanent impairment". This suggests that the word "injury" in this section, which was also introduced into the statute as part of the 1997 reforms, is intended, in this section at least, to retain its traditional meaning of "sudden physiological change" to a part of the body and that it was a concept distinct form any consequential loss of function to that or any other part of the body. Any anomaly between this meaning and that to be given to "injury" in s. 98 may be explained away as just another drafting anomaly in this notoriously drafted statute. "Permanent impairment" in this provision, as elsewhere, is directed to permanent impairment of the whole person of the worker and not to an impairment of that part which is injured.

54. In construing this statute I am mindful of its long history. Central terminology, such as "injury", whose meaning has been judicially expounded over decades and whose exposition has doubtless formed the background to legislative amendments, ought not lightly to be put aside. If a departure from traditional interpretation is intended it should be clearly flagged in the statute.

57. Notwithstanding the difficulties which I have mentioned, the terminology of s. 98C does not point to the construction contended for on behalf of the worker; rather the contrary. It leads to the conclusion that "injury" in s. 98C is to be understood in its traditional meaning as an identifiable physiological change to the body part. It is not sufficient that there be simply a loss or diminution of its function.

60. I should add that the last sentence in the passage from the judgment of McHugh JA in Morrow's case which I have set out above shows that his Honour was well aware of the distinction between loss of use and physiological impairment. Unlike his Honour, the Court in this case is concerned with the latter condition.

63. It follows from this that I am driven to conclude that the trial judge fell into error of law when he held that the loss of function to the worker's right leg and to his sexual organ meant that these should be considered to be separate injuries. The appeal must therefore be allowed.

[1] All references to sections in this judgment are references to the Accident Compensation Act 1985. (Reprint 11)

[2] See, too, s. 98C(7).

[3] (1986) 5 NSWLR 166 at 169.

[4] Workers' Compensation Act 1926 (NSW).

[5] Department of Public Works v Morrow (1986) 5 NSWLR 166 at 168-9.

[6] [2000] HCA 45; (2000) 200 CLR 286.

[7] Above at 298, per Gleeson CJ, Kirby J.

[8] Above at 299 - 300, per Gleeson CJ, Kirby J.

[9] (1986) 5 NSWLR 166.

[10] Accident Compensation Commission v Hawkins [1992] VicRp 39; [1992] 1 VR 589 at 593, per Murphy J (McGarvie J concurring) where it is said that the table of maims has assumed the role of a table of specific permanent disabilities or impairments.