Court of Appeal (Vic)|2012-12-17|Before: Mr J, Maxwell P, Tate JA

McVey v G J & L J Smith Pty Ltd & Anor [2012] VSCA 312 (17 December 2012)

WILLIAM JAMES McVEY (by his litigation guardian Anthony Bullard)

ACCIDENT COMPENSATION - Workers' compensation - Workplace accident - Permanent disability - Claim for lump sum compensation - Claim limited to physical injuries - Later claim for compensation for psychiatric injury arising from same event - Schizophrenia condition - Statutory prohibition against multiple claims in respect of one event - Whether second claim valid - Whether first claim vitiated by mental incapacity - Appellant incapable of recognising own psychiatric impairment - First claim did not bar second claim - Appeal allowed - Accident Compensation Act 1985 (Vic) ss 45, 98C, 104B(5A), (5AA).

ACCIDENT COMPENSATION - Workers' compensation - Appeal from County Court - Appeal on question of law 'raised during the proceedings below' - Whether open to challenge primary decision as 'not open' - Whether open to contend that primary judge 'bound' to reach different conclusion - Grounds of appeal valid - Green v VWA [1997] 1 VR 364 followed - Accident Compensation Act 1985 (Vic) s 52(1).

1 This appeal raises two important questions of accident compensation law. The first concerns the scope of an appeal from the County Court under s 52(1) of the Accident Compensation Act 1985 (the 'Act'). The second concerns the prohibition (now contained in s 104B(5AA) of the Act) against lodging more than one claim for compensation under s 98C of the Act in respect of injuries arising out of the same event.[1] The question which arises is whether a prior claim can be disregarded for this purpose if, at the time of lodging that claim, the claimant was suffering from a relevant mental incapacity.

2 The trial judge dismissed the present proceeding on the ground that it involved a second claim under s 98C in respect of the same event, a 1999 workplace accident. An earlier claim by the appellant, Mr McVey, under s 98C - concerning a different injury suffered in that accident (the 'first claim') - had been the subject of a lump sum settlement some years earlier.

3 The judge rejected Mr McVey's contention that he lacked relevant mental capacity at the time he made the first claim. This appeal, brought under s 52(1) of the Act, advances various grounds to the effect that there was no other conclusion reasonably open to the judge but that Mr McVey did lack the relevant mental capacity to make the first claim. A preliminary issue is whether these are 'questions of law raised during the proceedings' within the meaning of s 52(1), given that no such submission was put to the judge.

(a) grounds of appeal which contend that a trial judge was bound to reach a particular conclusion (or that it was not open to the judge to reach the conclusion which he/she did) are within the scope of s 52(1) of the Act, whether or not a submission in those terms was put to the judge;

(b) section 104B(5AA) of the Act does not (and its predecessor, s 104B(5B), did not) prevent the lodgement of a second claim under s 98C if the claimant is proved to have been suffering from a relevant mental incapacity at the time of lodging the prior claim under s 98C;

(c) the uncontested evidence as to the effect of Mr McVey's psychiatric disorder established that he was suffering from a relevant mental incapacity at the time of lodging his first claim, and the judge should have so found;

(d) section 104B(5B) does not therefore prevent Mr McVey from pursuing the second claim; and

(e) the psychiatric injury the subject of the second claim should be assessed, pursuant to ss 104B and 98C of the Act, for the purpose of payment of compensation.

5 Mr McVey had a workrelated accident in 1999. On 2 January 2001, his then solicitors lodged the first claim under s 98C of the Act in respect of the physical injuries that he suffered. The second respondent ('VWA') accepted liability and, in due course, Mr McVey received lump sum compensation for those physical injuries.

6 Mr McVey subsequently made a claim under s 93 of the Act for weekly payments of compensation in respect of injuries sustained in the 1999 accident. That claim was being litigated in the County Court when a judge refused to allow the claim to proceed until a litigation guardian had been appointed to represent Mr McVey's interests. His present litigation guardian, Mr Bullard, was appointed in February 2006.

7 Later that year, another judge of the County Court referred various questions to a medical panel under s 45 of the Act. The panel's opinion was that Mr McVey was no longer suffering from any physical medical condition but was suffering from schizophrenia, and that his employment was 'a significant contributing factor to ... the schizophrenia condition'. The court made orders in March 2007, consistent with the panel's opinion, that Mr McVey be paid weekly payments at the rate applicable to 'no current work capacity'. Those payments are continuing.

8 In 2008, Mr McVey's current solicitors lodged a further claim for compensation for permanent disability under s 98C in respect of the schizophrenia condition (the 'second claim'). VWA rejected the second claim on the basis that s 104B(5AA) of the Act only permitted one claim for compensation in respect of the injuries that the appellant suffered in the accident.

9 Mr McVey (through his litigation guardian) challenged the rejection of the second claim on the basis that, at the time he lodged the first claim, he lacked the mental capacity to provide instructions as to the nature and extent of the injuries that he had suffered, and that the first claim therefore had no legal effect. The County Court upheld VWA's rejection of the second claim. The trial judge was not satisfied that Mr McVey lacked 'any relevant mental capacity at the time of making the first claim'.[2]

10 This appeal is governed by s 52(1) of the Act, which provides as follows:

[A]ny person who was a party to proceedings before the County Court and at which a judgment or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

11 A threshold issue has been raised about the proper construction of s 52(1). The respondents contended that certain of the grounds of appeal fell outside the scope of s 52(1), as they did not concern questions of law 'raised during' the proceeding below. The relevant grounds advance, in several different forms, the contention that the County Court was bound to find on the evidence before the Court that Mr McVey did not have the mental capacity to make a claim for compensation for his psychological injury at the time that he made the first claim. Put another way, the contention is that no other conclusion was open on the evidence.

12 The impugned grounds are couched in the following terms:

On the evidence before him it was not open to the trial judge to find that he was not satisfied that the Appellant lacked any relevant mental capacity to make a claim on 1 September 2000 pursuant to s 98C of the Act.

1A. On the evidence before him the trial judge was bound to find that the Appellant lacked the mental capacity to make a claim pursuant to s 98C of the Act in respect of all compensable injuries suffered by him.

The trial Judge erred in finding that there was no evidence to support a finding that the Appellant lacked mental capacity to make a claim for all compensable injuries and particularly with respect to any injury constituted by mental disorder at a time when he purported to make a claim for compensation pursuant to s 98C of the Act on 1 September 2000.
The trial Judge was bound to find on the evidence before him that the Appellant at the time he purported to submit a claim for compensation pursuant to s 98C of the Act on 1 September 2000 lacked insight into his mental disorder from which he then suffered in consequence of which:

(a) he did not then accept or comprehend that he was suffering from a compensable mental disorder;

(b) he lacked capacity to instruct his then solicitors to submit a claim pursuant to s 98C claiming that mental disorder as an injury.

13 The question of whether the County Court was bound to make a particular finding is a question of law. As we have said, VWA argued that it was not open to Mr McVey to argue these grounds because that question of law was not 'raised during the proceedings below'. That was said to be so because no such submission was made to the trial judge - that is, a submission that there was only one conclusion open on the evidence. Reliance was placed on Victorian Workcover Authority v Game,[3] where Ashley JA, in obiter, said that s 52(1) confined the right of appeal to questions of law that were actually raised at trial.[4]

14 The starting point for consideration of s 52(1) is the decision of the Court of Appeal in Green v Victorian Workcover Authority,[5] to which Ashley JA referred in Game. In Green, Tadgell JA described s 52(1) as 'both broad and imprecise'[6] - broad because in its terms it was not confined to appeals from judgments or decisions made by the County Court under the Act, and imprecise because it did not specify 'from what' or 'against what' the appeal was to be brought.

15 By contrast, the provision governing appeals from the Victorian Administrative Appeals Tribunal to the Supreme Court, namely, s 52(1) of the Administrative Appeals Tribunal Act 1984 ( 'AAT Act'),[7] specified that appeals were to be brought from a decision of the Tribunal. Section 52(1) of the AAT Act then provided:

A party to a proceeding before the Tribunal may appeal to the Supreme Court, on a question of law, from a decision of the Tribunal in that proceeding.

The same terms were used to govern appeals from the Commonwealth Administrative Appeals Tribunal to the Federal Court, in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

16 His Honour also compared s 52(1) of the Act with s 109(1) of the Magistrates' Court Act 1989 (Vic),[8] which provided that:

A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.

His Honour then considered the wording of one of the forerunners of s 52 of the Act, namely, s 61(3) of the Accident Compensation Act 1985 (Vic), which read:

Any person who was a party to proceedings before the Tribunal at which a determination was made may appeal to the Supreme Court sitting as a Full Court on a question of law raised during those proceedings.

17 In the earlier case of Accident Compensation Commission v C E Heath Underwriting and Insurance (Aust) Pty Ltd,[9] Tadgell J had examined s 61(3) and said:[10]

Subsection (3) of s 61 of the Accident Compensation Act is, if anything, more curious than s 52(1) of the Administrative Appeals Tribunal Act or s 109(1) of the Magistrates' Court Act because, by itself, it does not say that the right of appeal which it grants is 'from' or 'against' anything. Subsections (4), (8) and (9) of s 61 strongly suggest, however, that the right of appeal is against the determination referred to in sub-s (3) that was made by the Tribunal. Thus sub-s (4) requires a notice of intention to appeal to be served 'within 21 days after the making of a determination'; and sub-s (8) and (9) each commence with the expression 'If the determination appealed against ...'.

18 In that case, his Honour (with whom Fullagar and Brooking JJ agreed) concluded that s 61(3) was to be understood as conferring a right of appeal on a question of law against the determination of the Tribunal, resolving the problem of 'from what' or 'against what' an appeal was to be brought. To this end, his Honour read s 61(3) as if the words 'against the determination' were included within it.[11]

19 In Green, Tadgell JA observed that the same construction could not be adopted in relation to s 52 of the Act because s 52(1) did not speak of a 'determination', but rather, of 'a judgment or decision' which emanated from the County Court and not from the Tribunal.[12] However, similar reasoning could be relied on to construe s 52(1) as implicitly confined to appeals brought from 'judgments or decisions' of the County Court. The question of 'from what' an appeal could be brought having been resolved, his Honour then considered whether there was another implied limitation; namely, that the question of law of which s 52(1) speaks must be a question that is involved in that judgment or decision. His Honour said:[13]

The best that I can make of it is ... to treat s 52(1) as conferring a right of appeal to the Court of Appeal from (or against) a judgment or decision of the County Court on a question of law raised during the proceedings before the County Court and which is involved in the judgment or decision ... It cannot be reasonably supposed that there should be an appeal to the Court of Appeal simply on a question of law raised during the proceedings before the County Court, even if the question neither played nor should have played any part in the judgment or decision: cf Transport Accident Commission v Hoffman ... I therefore propose that s 52(1) of the Act should receive much the same interpretation as was accorded by that decision to s 52(1) of the Administrative Appeals Tribunal Act 1984. It is perhaps unfortunate that the former was not expressed like the latter.

20 In Transport Accident Commission v Hoffman,[14] the Full Court was concerned with the construction of s 52(1) of the AAT Act[15] and what was then the novel limitation of an appeal to a question of law. The Court said:

[A] right of appeal 'on a question of law' appears to be a novel concept. A right of appeal is a familiar concept but it is usually a right given to appeal 'from' or 'against' a decision. So here the right given is to appeal 'from a decision of the Tribunal'. The interpolation of the words 'on a question of law' seems clearly enough to show an intention to limit the right of appeal but it is not clear what limitation is intended.[16]

21 The Court took the view that the subsection should not be construed as limiting the right of appeal to an appeal from those decisions made by the Tribunal on questions of law. Such a construction would have been overly restrictive. Nor should it be read as so broad as to permit appeals from any decisions involving questions of law. This may have been considered inconsistent with the parliamentary intention because, on a wide view of what amounts to a question of law, this might include all, or almost all, decisions of the Tribunal.

22 Rather, the Court determined, s 52(1) of the AAT Act should be construed as conferring a right of appeal from those questions of law which had played a part, or ought to have played a part, in the decision; that is, as referred to in Green, an appeal was to be limited to questions of law that were involved in the decision from which the appeal was brought. The Court said, referring to s 52(1) of the AAT Act:[17]

It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision.

23 In Green, the reasoning proceeded in three stages. First, by reading s 52(1) of the Act as including a reference to the 'decision' of the Court, there was a fixed and objective point of reference in relation to which an appeal could be brought, which the terms of the subsection had omitted to provide. Secondly, this made the judgment or decision the focal point in respect of an appeal. Thirdly, this construction allowed for the reasoning in Hoffman to apply. The right of appeal was not to be confined to judgments or decisions on questions of law because that would be overly restrictive. Nor was it to be read so broadly as to encompass an appeal from any judgment or decision which had itself involved a question of law. Rather, the questions of law on which an appeal could be brought were to be confined to those matters which were involved in the judgment or decision from which the appeal was brought. Thus, the focus was not so much on whether an issue had been raised at trial but whether the issue played a part, or should have played a part, in the judgment or decision.

24 The question of whether a judge has arrived at a conclusion in a judgment or decision on the basis of no evidence is a question of law.[18] Moreover, as the conclusion is part of the reasoning adopted by the judge, the question of law is one that has played a part in the judgment or decision; indeed, it may have played a critical part in the judgment or decision. In this sense, the question of law is involved in the judgment or decision from which the appeal is brought. Put positively, if a judge had been 'bound' on the evidence to arrive at a particular conclusion, but has not done so in the judgment or decision, that is a question of law on which an appeal could be brought, within the confines of s 52(1) of the Act.

25 In Green, Tadgell JA adopted this approach. In turning to the issue in the case - whether or not the claimant was a 'worker' - his Honour said:

The answer to the second question arising on the appeal - whether the learned Chief Judge erred in his conclusion that the claimant was not a worker - becomes plain once the nature of the appeal is understood. The issue was whether, at the time he was injured, the claimant was working under a contract of service - whether he was a servant and not an independent contractor ... Upon my interpretation of s 52(1) the appeal cannot raise the question whether the conclusion was against the evidence and the weight of the evidence. In order to succeed the appellant must demonstrate that there was no basis on which the Chief Judge could reach the conclusion he did: Transport Accident Commission v Hoffman_. Putting it another way, the only question is whether the Chief Judge was bound, as a matter of law, to conclude that the appellant was a worker_ ...[19]

26 His Honour concluded that no error of law had been shown.[20] Both Phillips JA[21] and Charles JA[22] agreed with the reasons given by Tadgell JA for his conclusion that no appealable error of law had been established. By their concurrence, Phillips and Charles JJA must be taken to have endorsed the view of Tadgell JA that a question of law asking whether the trial judge was 'bound' to arrive at a particular conclusion on the evidence was within the scope of s 52(1) of the Act.

27 On this approach it is not to the point that the question of whether the judge was bound to arrive at a particular conclusion had not been raised as an issue at trial. It would have been most unlikely for such a submission to have been made at trial for two reasons: (1) it could give rise to confusion regarding the standard of proof applicable at trial; and (2) the conclusion or finding, and the basis upon which the judge supported that conclusion or finding, may not have become apparent until the judgment or decision was made. The basis upon which the judge arrived at the conclusion may reveal that he or she has adopted a path of reasoning with respect to the evidence which could not have been anticipated at trial.

28 To take a further example, a judgment or decision may reveal that the judge has adopted an erroneous construction of a statutory provision. The construction may not have been contested at trial because it had been common ground between the parties that the prevailing construction would apply. In those circumstances, the question of whether the judge committed an error of interpretation may amount to a question of law involved in the judgment or decision, despite its not having been in issue during the course of the trial. We consider that s 52(1) of the Act cannot have been intended to confine the scope of an appeal to such an extent that such an error could not be relied upon as a ground of appeal.

29 The approach adopted by Tadgell JA in Green takes as the focus of the appeal the judgment or decision made below, rather than simply the manner in which the trial was conducted. This allows for errors of the kind we have identified - most particularly, the error which arises when a conclusion is not open on the evidence - to be properly raised on appeal in a manner that reflects the purpose of s 52(1) of the Act.

30 In Game, Ashley JA considered that the reasoning adopted in Hoffman did not apply, by analogy, to s 52(1) of the Act, preferring a more restrictive construction. His honour said:[23]

The key is the language of s 52(1). If that provision is given a _Hoffman-_like meaning - which may be said to run counter to ordinary principles of statutory interpretation by treating considerably different statutory language as having substantially the same meaning - the probable consequence is that an evidentiary question is to be treated as having been raised during the proceedings when in truth it was not. What the evidence connotes in a particular proceeding is pre-eminently a matter for consideration by the trial judge. Matters of impression can be important ... If an appellant can raise a 'no evidence' contention on a s 52(1) appeal, although it was not raised at trial, this court [the Court of Appeal] will never know whether, inter alia, the judge at trial would have found some matter of impression to be important. It could not be said that the judge's actual reasoning, set in a context defined by particular submissions, would have been the same had a different context been set. Nor could it be said that, by looking at a transcript, this court would be in as good a position as the trial judge to pass upon a matter of impression. These considerations, having regard to the particular language of s 52(1), seem to me to stand in favour of that provision being given a more restrictive meaning than the provision considered in Hoffman.

31 Subsequently, in Azzopardi,[24] Ashley JA referred to what he had said in Game as 'tentatively expressed views'.[25] In Azzopardi, as in Game, it was unnecessary for his Honour to reach a concluded view on the question. His Honour again expressed the 'provisional opinion', consistently with what he had said in Game, that a 'no evidence' question was not a question of law 'raised during the proceeding' within the meaning of s 52(1).[26]

32 This Court is, of course, bound to follow the decision in Green unless persuaded that it was 'plainly wrong'.[27] With great respect to the contrary view expressed by Ashley JA, we consider that the interpretation of s 52(1) in Green was correct.[28] Had we reached a different conclusion, it would have been necessary - before deciding whether or not to follow Green - to take cognisance of the fact that the approach enunciated in Green stood unchallenged for more than a decade, and must be taken to have informed the drawing of notices of appeal under s 52(1) throughout that period.[29]

33 We have sought to explain why the differences in statutory language between s 52(1) of the Act and s 52(1) of the AAT Act do not preclude analogous reasoning on their construction. We have set out the stages of reasoning adopted in Green to support that analogy. We do not regard the linguistic differences as signifying a legislative intention to create a special - and unusually narrow - species of 'question of law' appeal. There is nothing in the extrinsic materials at the time of the enactment of the original s 61 of the Accident Compensation Act 1985 [30] which would suggest any such intention, and we are unable to discern any policy rationale for creating a restricted sui generis category of appeal.

34 We also observe that the threshold is a stringent one for a party to establish that it was not open on the evidence for a judge to make the finding, or arrive at the conclusion, which he or she did.[31]

35 For these reasons, we are satisfied that the impugned grounds of appeal raise questions of law which fall within the scope of s 52(1) of the Act.

The statutory prohibition on more than one claim

36 The trial judge held that Mr McVey could not make a second claim:

Although the law does give persons of impaired mental capacity some relief in certain circumstances (for example, see Crimes (Mental Impairment and Unfitness to be Tried) Act 1997), the circumstances of this matter clearly establish that the first claim was made pursuant to the provisions of the Act, was accepted and assessed and compensation paid.[32]

37 The relevant provisions in force at the time the first claim was made were ss 104B(5A) and (5B) which provided as follows:

(5A) Unless subsection (5B) applies, an assessment under this section can only be made in respect of one injury of a worker.

(5B) If a worker has more than one injury arising out of the same event or circumstance, all of those injuries must be included in the one assessment.

38 These provisions were repealed in 2004 and replaced by a new s 104B(5A) and (5AA), which read:

(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s 98C.

(5AA) A worker can only make one claim for compensation under s 98C in respect of injuries arising out of the same event or circumstance.

39 The parties conducted the appeal on the basis that these later provisions were the relevant provisions. Given, however, that the first claim was made before those sections were enacted, the applicable provisions are ss 104B(5A) and (5B) as they stood before the repeal. Specifically, it is the limiting effect of (the former) s 104B(5B), as it applied to the first claim, which is relied on to bar the second claim. The question for consideration nevertheless remains the same, as the provisions have like legal effect and permit a worker only to make one claim for compensation under s 98C in respect of injuries arising out of the same event.

40 VWA submitted that there was no scope for a person to be relieved from the operation of those provisions by reason of mental disorder at the time of the making of the original claim. Senior counsel for VWA helpfully drew the Court's attention, by way of contrast, to s 103(12) of the Act. That provision applies to compensation claims concerning injuries occurring before 12 November 1997, and provides that the 'one claim in respect of all injuries' rule does not apply to a worker who, at the time the claim for compensation was lodged,

was not capable of managing his or her affairs in relation to the claim by reason of injury, disease, illness, dementia, intellectual impairment, physical disability or mental disorder.

41 There is no equivalent relieving provision in relation to compensation claims (such as Mr McVey's) which concern injuries occurring after November 1997. The submission for VWA was that this omission disclosed a legislative intention to remove any scope for people with disabilities to argue that the 'one claim' provisions were not applicable to them.

42 We would reject that submission. In our view, the omission of a comparable provision to s 103(12) in relation to claims for post1997 injuries does not justify, much less require, the conclusion that Parliament intended to displace the general law principles concerning the legal capacity of a person doing an act or entering a transaction.[33] Clear and unambiguous words would be required before we would conclude that it was Parliament's intention to override the general law position, particularly on a matter of such fundamental common law principle.

43 It would have been a very dramatic change of policy to have moved from a scheme which recognised - and made allowance for - the effect of mental incapacity to one which prohibited any consideration of it. There is nothing in the extrinsic materials to suggest that Parliament had any such intention. In our view, the legislature is to be taken to have done no more than remove its own test of incapacity, leaving the issue to be determined in accordance with the general law. Whether that question should be revisited is a matter to be considered by the legislature in the light of the outcome in the present case.

44 The statutory criterion of incapacity in s 103(12) ('not capable of managing his or her affairs in relation to the claim') accords with the general law by concentrating attention on the particular matter - the claim - with respect to which incapacity must be assessed. Moreover, in our view, that language aptly encapsulates the common law test which is to be applied in cases such as this. Accordingly, the question for consideration was whether, by reason of his schizophrenia condition, Mr McVey was incapable of managing his affairs in relation to the first claim.

Was the Court bound to find that Mr McVey lacked 'relevant mental capacity' at the time of the making of the first claim?

45 The reasons of Davies AJA, which we have had the advantage of reading, demonstrate why there was only one conclusion open with respect to the question of incapacity. We agree with Davies AJA that the Court was bound to find that Mr

McVey lacked 'relevant mental capacity' at the time of making the first claim. What mattered was not whether Mr McVey was capable of giving instructions for the lodgement of a claim - he clearly was, as his counsel conceded on the appeal - but whether he was capable of giving instructions for the lodgement of a claim in respect of his psychiatric condition.[34]

46 He clearly did not have that capacity. The uncontested evidence showed that Mr McVey was mentally incapable of recognising that he had any such condition. No question arose of his solicitors being 'thwarted'. As the sworn (and unchallenged) evidence of Mr Verducci made clear, they simply complied with their instructions, which were confined to the making of a claim with respect to the physical injuries.

47 For the reasons given by Davies AJA on this issue, we would allow the appeal.

48 The appellant ('Mr McVey') had a work-related accident in 1999. On

2 January 2001, his then solicitors lodged a claim (the 'first claim') for compensation for permanent disability in respect of the physical injuries that he suffered. The second respondent ('VWA') accepted liability and, in due course, Mr McVey received compensation for those physical injuries. In 2008, Mr McVey's current solicitors lodged a further claim ('the second claim') for compensation for permanent disability in respect of a psychotic disorder from which the appellant suffers. This disorder was certified by the Medical Panel (constituted pursuant to the Accident Compensation Act 1985 (Vic) (the 'Act')) to have been materially contributed to by the accident in 1999. The VWA rejected the second claim on the basis that the Act only

permitted one claim for compensation in respect of the injuries that the appellant suffered in the accident. Mr McVey, through his Litigation Guardian (appointed in 2006), challenged the rejection of the second claim on the basis that he lacked the mental capacity to provide instructions as to the nature and extent of the injuries that he had suffered when the first claim was lodged and that the first claim therefore had no legal effect. The competency of the second claim was considered by the County Court, which held that the second claim could not be made because the Act provided that only one claim for compensation for injuries arising out of the same event or circumstance was allowed and, in any event, the Court was not satisfied that Mr McVey lacked 'any relevant mental capacity at the time of making the first claim'.[35] This is an appeal from the decision of the County Court that Mr McVey cannot make the second claim.

(a) a threshold issue concerning the nature and scope of an appeal from the County Court under s 52(1) of the Act;

(b) a second threshold issue as to whether the statutory prohibition on more than one claim for compensation in respect of injuries arising out of the same event or circumstance applies where the claimant lacked the requisite mental capacity at the time of making the claim; and

Mr McVey did not lack the requisite mental capacity.

50 The appeal is governed by s 52(1) of the Act, which provides as follows:

... any person who was a party to proceedings before the County Court and at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

51 A threshold issue has been raised about the proper construction of s 52(1) of the Act. VWA contended that grounds 1, 1A, 2 and 3 of the further amended Notice of Appeal are not questions of law 'raised during' the proceeding below. Those grounds are directed to the contention that the County Court was bound to find on the totality of the evidence that Mr McVey did not have the mental capacity to make a claim for compensation for his psychological injury at the time that he made a claim for compensation for his physical injuries. Whether the County Court was bound to make that finding is a question of law,[36] but VWA argued that this had not been 'raised during the proceedings below' because no submission was made in the proceeding below that the County Court must so find on the evidence. Therefore, it was said, Mr McVey could not appeal on grounds 1, 1A, 2 and 3. For this submission, VWA placed reliance on Victorian Workcover Authority v Game.[37] In that case Ashley JA, in obiter, said that s 52(1) of the Act confined the right of appeal to questions of law raised at trial.[38]

52 One of the grounds of appeal that Ashley JA considered in Victorian Workcover Authority v Game was the 'no evidence' ground. Ashley JA was of the view that the issue sought to be agitated by that ground was not, within the language of s 52(1), a question of law raised during the proceedings below. His Honour reasoned as follows:

Section 52(1) of the Act confers a right of appeal. But it is a confined right. It is a right of appeal 'on a question of law raised during [the] proceedings' which culminated in the impugned judgment or decision.
The language of s 52(1) varies from, and is arguably more restrictive than, the language of ss 92 and 109 of the Magistrates' Court Act 1989 and of s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 - each of which confers a right of appeal 'on a question of law', as the case may be, from a final order, or an order of the first instance entity.
On the other hand, in Green v Victorian Workcover Authority Tadgell JA said that s 52(1) should receive 'much the same interpretation' as had been accorded s 52(1) of the Administrative Appeal Tribunal Act 1984 in Transport Accident Commission v Hoffman. In Hoffman, the statute permitted an appeal from a decision 'on a question of law, from a decision of the Tribunal'. Young CJ and McGarvie J construed the provision as granting a right of appeal from a decision 'on a question of law which is involved in the tribunal's decision.' A question whether there was any evidence upon which the Tribunal could have reached its decision was, their Honours said, such a question.

That leaves the question whether the subject-matter of proposition 1 engages s 52(1). Its substance lies in the contention, which could have been advanced at trial - but was not - that the evidence was incapable of supporting a conclusion that Mr Game was working under a contract of service when he suffered his fatal injuries. That is starkly different to the submission - which was made - that, there being evidence both ways, the necessary balancing exercise should yield a conclusion unfavourable to the claimant.
The submission which was made necessarily implied the existence of evidence both ways. Counsel for the respondent conceded before us that the course of evidence would have been no different had the appellants pursued a 'no evidence' case - which is not to say that final submissions at trial would not have been markedly different. But focussing only upon the respondent's concession, I doubt it assists a conclusion that the principle expressed in Suttor v Gundowda Pty Ltd should run in the appellants' favour. The key is the language of s 52(1). If that provision is given a Hoffman-like meaning - which may be said to run counter to ordinary principles of statutory interpretation by treating considerably different statutory language as having substantially the same meaning - the probable consequence is that an evidentiary question is to be treated as having been raised during the proceedings when in truth it was not. What the evidence connotes in a particular proceeding is pre-eminently a matter for consideration by the trial judge. Matters of impression can be important, particularly where the arrangement between parties was an informal one. If an appellant can raise a 'no evidence' contention on a s 52(1) appeal, although it was not raised at trial, this Court will never know whether, inter alia, the judge at trial would have found some matter of impression to be important. It could not be said that the judge's actual reasoning, set in a context defined by particular submissions, would have been the same had a different context been set. Nor could it be said that, by looking at a transcript, this Court would be in as good a position as the trial judge to pass upon a matter of impression. These considerations, having regard to the particular language of s 52(1), seem to me to stand in favour of that provision being given a more restrictive meaning than the provision considered in Hoffman.
So, if it mattered, as at present advised I doubt that the issue sought to be agitated by proposition 1 was, within the language of s 52(1), a question of law raised during the proceedings below. In expressing that conclusion I have not forgotten that the proposition (which accords with the language of grounds 1-3) is not couched in terms of there being no evidence to support the relevant conclusion, but rather in the language that the conclusion was not available on the facts found. So framed, the enquiry focuses on the question stated by Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Co Pty Ltd. Where it is not suggested that there was no evidence to support findings of fact, the question whether those findings are capable of supporting an ultimate conclusion is no different, in substance, to the question whether there was any evidence to support that conclusion.

53 I am unable to agree with Ashley JA's construction of s 52(1) of the Act. In my opinion, Ashley JA took an unduly restrictive and narrow view that the 'proceedings' did not include the judgment or decision itself. First, the meaning of the word 'proceedings', in its ordinary signification, is apt to include the judgment or decision given in the proceedings.[39] Secondly, textually and grammatically,[40] the phrase 'raised during ... proceedings' simply conveys the meaning that an appeal under s 52(1) of the Act can only lie from a judgment or decision of the County Court on questions of law arising in the controversy decided by the Court. This construction accords with an evident legislative intent to confine the right of the appeal to an appeal from a judgment or decision on a question or questions of law only. After all, an appeal can only lie from the judgment or decision. By so confining the right of appeal, s 52(1) also confines the subject matter of the appeal to those questions of law.[41] That is the limitation which is imposed by the language and syntax of s 52(1) and s 52(1) should be construed consistently with its plain meaning.

54 I therefore consider that grounds 1, 1A, 2 and 3 in the further amended Notice of Appeal identify questions of law which can be raised in this appeal.

Second threshold issue: The statutory prohibition on more than one claim

55 The trial judge held that Mr McVey could not make a second claim because:

Although the law does give persons of impaired mental capacity some relief in certain circumstances (for example, see Crimes (Mental Impairment and Unfitness to be Tried) Act 1997), the circumstances of this matter clearly establish that the first claim was made pursuant to the provisions of the Act, was accepted and assessed and compensation paid.[42]

56 The relevant provisions in force at the time the first claim was made included ss 104B(5A) and (5B) which provided as follows:

(5A) Unless sub-section (5B) applies, an assessment under this section can only be made in respect of one injury of a worker.

(5B) If a worker has more than one injury arising out of the same event or circumstance, all of those injuries must be included in the one assessment.

57 These provisions were repealed in 2004 and replaced by a new s 104B(5A) and a new s 104B(5AA) which read:

(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.

(5AA) A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.

58 The parties conducted the appeal on the basis that these later provisions were the relevant provisions. It is difficult to see how that can be, given that the relevant claim for compensation in the present case is a claim that was made before those sections were enacted. The applicable provisions are sections 104B(5A) and (5B) before repeal but, in any event, the provisions have like legal effect and permit a worker only to make one claim for compensation in respect of injuries arising out of the same event or circumstance.

59 VWA argued that the trial judge correctly held that the provisions applied by force of their terms and a person was not relieved from the operation of those provisions by reason of mental disorder at the time of the making of the claim. The VWA supported this submission by reference to s 103(12) of the Act. Section 103(12) provides that the 'one claim in respect of all injuries' requirement does not apply to a worker who, at the time the claim for compensation was lodged, was not capable of managing his or her affairs in relation to the claim by reason of, amongst other things, mental disorder. It was submitted the omission of a like relieving provision in

s 104B of the Act indicated that Parliament had intended to remove any scope for people with disabilities from arguing that the provisions were not applicable to them.

60 Contrary to VWA's submissions, the omission of a like relieving provision in

s 104B of the Act does not make it apparent that Parliament intended to displace the general law principle that a person who executes a document must have the mental capacity to understand the effect of that document in order to be bound by it. Mental incapacity is a requisite for validity of the act.[43] Clear and unambiguous words would be required to conclude that it was Parliament's intention to override the general law position. Section 103(12) gives statutory recognition to the general law but the omission of a like provision in s 104B does not, by implication, statutorily derogate from the general law position.

61 In my opinion, the trial judge was wrong in law to hold that ss 104B(5A) and (5B) (now ss 104B(5A) and (5AA) in the Act as amended) precluded Mr McVey from lodging a second claim, if it was the case that he lacked the requisite mental capacity when the first claim was lodged.

Was the Court bound to find that Mr McVey lacked 'any relevant mental capacity' at the time of the making of the first claim?

In any event, I am not satisfied the plaintiff lacked any relevant mental capacity at the time of the making of the first claim. No one, including treating doctors and the previous solicitors indicate that he lacked mental capacity. It is important, I believe, that he had solicitors acting for him at the time of the making of the first claim who had access to, amongst other things, the report from the general practitioner,

Dr Jagoda, who notes that he referred the plaintiff to a psychiatrist who diagnosed the plaintiff to be suffering an element of psychosis and that the 'secondary psychological sequelae from the accident played a major role in the continuation of his disability'.

There is no evidence whatsoever that the former solicitors sought to include any psychiatric injury but were thwarted by the plaintiff on the basis that he did not accept such disorder. It must be accepted on the evidence that the former solicitors were well aware of him having a psychiatric condition at the time of making the first claim.

63 The evidence before the trial judge was all to the effect that Mr McVey was suffering from a psychotic disorder at the time when he lodged the first claim. That was not in dispute before the trial judge nor on appeal. The evidentiary question for the trial judge, therefore, was not the existence of the psychotic disorder at the time of the making of the first claim, but whether Mr McVey was capable of understanding when he lodged his first claim that he had this psychotic disorder. The case put on behalf of Mr McVey in the proceedings below was that Mr McVey lacked insight into his mental disorder from which he suffered. In consequence, he did not then accept or comprehend that he was suffering from a compensable mental disorder and he lacked capacity to instruct his then solicitors to submit a claim for compensation for permanent disability, claiming that mental disorder as an injury.

64 There were several medical reports in evidence, in which the medical practitioners opined that Mr McVey lacked insight into his mental disorder.[44] The medical opinions that Mr McVey lacked insight were not controverted. The trial judge did not have regard to those medical opinions in his reasons for decision in paragraphs 20 and 21 of the judgment. That is explicable because the trial judge asked a different question - 'Did Mr McVey lack mental capacity?' The formulation of the question in that way led the trial judge into error in his Honour's evaluation of the evidence. The establishment of a lack of mental capacity was necessary to vitiate the legal effect of the making of the first claim. But merely putting the issue in terms of a lack of mental capacity did not focus on the matters that had to be decided.

65 The authorities make it clear that there are two aspects to the requisite need for a person to have the necessary capacity at law to perform a valid and legally binding act. The first aspect is that the mental capacity is directed to the particular act performed. The second aspect is that the person must have the capacity to understand the nature of that act when it is explained. The principles were helpfully explained by Campbell JA (with whom Basten JA and Handley AJA agreed) in Guthrie & Anor v Spence:[45]

Under the general law there is no single test for capacity to perform legally valid acts - rather, capacity is decided, in relation to which each particular piece of business transacted, by reference to whether the person has sufficient mental ability 'to be capable of understanding the general nature of what he is doing by his participation', and concerning any legal instrument 'is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained': Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 437-438, per Dixon CJ, Kitto J and Taylor J. Thus, capacity of both children and adults to give evidence is dependent, in broad terms, on being able to understand the nature and significance of the task that is involved in giving evidence: JD Heydon, Cross on Evidence 7th Australian edition (2004) Chatswood, LexisNexis Butterworths, pars [13050]-[13065], at 376-383. Capacity to consent to medical treatment depends on the ability of the person in question to understand fully what is proposed: Secretary, Department of Health and Community Services v JWB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218 at 237-238. The familiar test of testamentary capacity laid down in Banks v Goodfellow (1870) LR 5 QB 549 and Re Estate of Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 is dependent on being able to carry out the particular tasks involved in understanding and evaluating the matters that need to be taken into account in deciding what one's testamentary dispositions will be. Capacity to marry is dependent on being able to understand the nature of the relationship of marriage: In the Estate of Park (Dec'd); Park v Park [1954] P 89; Sheffield City Council v E [2004] EWHC 2808 (Fam); [2005] Fam 326.[46]

As Debell J stated in Dalle-Molle v Manos[47] the enquiry must be directed to the particular transaction. In that sense the test is 'issue-specific'.[48]

66 The question that the trial judge was required to address was whether Mr McVey had the ability to understand when he made his first claim (1) that he did suffer from a mental disorder; (2) that it was compensable; and (3) that his disorder needed to be included as an injury in the first claim form.

67 VWA argued that the trial judge was not bound to find on the evidence that Mr McVey lacked the necessary mental capacity to include his mental disorder as an injury in his first claim. First, it was put that the medical opinions that he lacked insight into his condition all post-dated the making of the first claim. Secondly, VWA argued that a Jones v Dunkel[49] inference was open to be drawn from the fact that

Dr Jagoda, the treating doctor, was not asked to give an opinion on whether Mr McVey lacked insight. Thirdly, and as the trial judge had found, the former solicitors knew when they took instructions from Mr McVey for the first claim that he had a mental disorder, yet there was no evidence that they were 'thwarted' by Mr McVey from including his mental disability as an injury. I do not agree with the submission.

68 First, whilst the relevant medical opinions were given post lodgement of the first claim, there was no evidence to indicate that Mr McVey did have insight into his condition when he lodged the first claim. The reliance on the evidence about the solicitors' knowledge of his condition was misdirected. The issue for the Court was whether Mr McVey was capable of giving the requisite instructions, not what the solicitors knew or whether they were 'thwarted'. There is no evidence that they were aware at the time that the condition was compensable. Indeed the evidence was to the contrary that it was not compensable because the condition was secondary.

69 Secondly, the only inference to be drawn, if any, from the fact that Dr Jagoda was not asked to give an opinion about Mr McVey's insight into his condition at an earlier time is that Dr Jagoda's opinion would not have assisted Mr McVey's case. Jones v Dunkel does not permit an inference that Dr Jagoda, if asked to express an opinion, would in fact have expressed an opinion damaging to Mr McVey's case. At most it can be said that there was a gap in the evidence because no medical practitioner specifically opined as to Mr McVey's inability to comprehend that he was suffering from a mental disorder at or around the time that the first claim was lodged.

70 Thirdly, the totality of the medical evidence pointed to the conclusion that Mr McVey lacked insight into his medical disorder when he submitted the first claim. There is a body of medical evidence to the effect that Mr McVey's mental disorder was substantially untreated. Dr Jungfer opined that Mr McVey's lack of insight would prohibit him from seeking treatment on a voluntary basis and that his lack of insight had limited his ability to seek appropriate treatment. Although Dr Jungfer first saw Mr McVey on 27 March 2006, Dr Wijesinghe, the psychiatrist who examined Mr McVey in 2000 at the request of Dr Jagoda, provided a report in which he expressed his opinion that Mr McVey's psychiatric disorder was substantially untreated from that first examination in June 2000 to Dr Wijesinghe's last examination on 1 August 2007 'because of his poor compliance'. Dr Wijesinghe also wrote that 'at most times, Mr McVey denied suffering a psychiatric disorder and the need for treatment'. Consistent with this, Dr Botvinik in his report of

8 November 2003 recorded a personal history from Mr McVey that Mr McVey said that he had been falsely diagnosed as a schizophrenic and a chronically psychotic patient in 1987 and that Mr McVey had never agreed with such a diagnosis and never believed that he was schizophrenic or psychotic. The medical history also recorded that Mr McVey told Dr Botvinik that Mr McVey does not have any psychiatric disorder and has been a victim of certain circumstances.

71 In my opinion, the only conclusion open on that evidence is that Mr McVey lacked the requisite insight as at the time of the first claim. There was no evidence which indicated otherwise and the fact that no doctor specifically opined on lack of insight at the time in question does not leave it open for a different conclusion to be reached. The evidence, in my view, was not only sufficient, but compelling.

[1] The equivalent provision at the time of the appellant's claim was s 104B(5B) of the Act - see [39] below.

[2] McVey v G J & L J Smith Pty Ltd & VWA [2011] VCC 135, [20].

[3] [2007] VSCA 86; (2007) 16 VR 393, 396-7 [20]-[21] ('Game').

[4] See also Azzopardi Haulage Pty Ltd v Azzopardi [2008] VSCA 241; (2008) 21 VR 211, 238 [89] ('Azzopardi').

[5] [1997] 1 VR 364 ('Green').

[7] The Victorian Administrative Appeals Tribunal was later replaced by the Victorian Civil and Administrative Tribunal and the relevant legislation was repealed.

[8] His Honour also referred to s 92 of the Magistrates' Court Act 1989 (Vic), which was in similar terms to s 109(1) and related to appeals from a final order of the Magistrates' Court in a criminal proceeding. He also noted the similar phrasing in s 117(1) of the Children and Young Persons Act 1989 (Vic).

[9] (Unreported, Full Court of the Supreme Court of Victoria, Fullagar, Brooking and Tadgell JJ, 13 December 1991).

[11] His Honour observed that the optimum location of those words within the subsection was arguable: ibid 44.

[12] Although, as his Honour pointed out, the word 'determination' was still used in other subsections of s 52: Green [1997] 1 VR 364, 369-70.

[13] Green [1997] 1 VR 364, 369 (citation omitted, emphasis added).

[15] Set out above [15].

[16] Hoffman [1989] VicRp 18; [1989] VR 197, 198 (Young CJ and McGarvie J). O'Bryan J did not express an opinion on the issue.

[18] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.

[19] Green [1997] 1 VR 364, 372-3 (emphasis added).

[27] R v B D X [2009] VSCA 28; (2009) 24 VR 288, 312 [142], 314 [155].

[28] Although one of us (Maxwell P) agreed with Ashley JA in Game, this aspect of the reasoning was unnecessary to the decision, as mentioned above.

[29] See, eg, Gett v Tabet (2009) 254 ALR 504, 566-7 [296]-[301].

[30] Which, as mentioned above, was a forerunner of s 52(1) of the Act: Green [1997] 1 VR 364, 369_._

[31] See S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-91 (Phillips JA).

[32] McVey v G J and L J Smith Pty Ltd and VWA [2011] VCC 135, [19].

[33] Dalle-Molle v Manos [2004] SASC 102, [16].

[34] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, [23], [26]; A v City of Swan [No 5] [2010] WASC 204, [78].

[35] McVey v GJ & LJ Smith Pty Ltd &VWA [2011] VCC 135, [20].

[36] Repatriation Commission v Reid [1990] FCA 345; (1990) 95 ALR 728; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

[38] See also Azzopardi Haulage Pty Ltd v Azzopardi [2008] VSCA 241; (2008) 21 VR 211, 238, [89].

[39] Aisnworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at [15] (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[40] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 at [78] (per McHugh, Gummow, Kirby and Hayne JJ).

[41] TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175, 183 (Gummow J).

[42] McVey v GJ & LJ Smith Pty Ltd &VWA [2011] VCC 135 at [19].

[43] Dalle-Molle v Manos (2004) SASR 193, [16].

[44] Dr Victor Botvinik (8 November 2003); Dr Patricia Jungfer (2 May 2006); Dr Patricia Jungfer

Compensation Act 1985

Young Persons Act 1989

Appeals Tribunal Act 1984

Appeals Tribunal Act 1975

(Mental Impairment and Unfitness to be Tried) Act 1997

Civil and Administrative Tribunal Act 1998

Administrative Appeal Tribunal Act 1984

McVey v G J & L J Smith Pty Ltd & Anor [2012] VSCA 312

At a glance

Court

Decision date

Before

Source

Judgment (165 paragraphs)

McVey v G J & L J Smith Pty Ltd & Anor [2012] VSCA 312 (17 December 2012)

Parties

Legislation Cited (8)

Cases Cited (15)