Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306

Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 - VSCA 2010 case summary — Zoe

[16]

(a) that the learned trial judge erred in finding that the incapacity arising from the injury was not known until after 12 November 1997;

(b) that the learned trial judge wrongly concluded that the Respondent was unaware of his incapacity prior to 21 December 2004, being three years before he issued his Application for Determination under the Accident Compensation Act;

(c) that the learned trial judge wrongly confused a failure of the Respondent to remember his mental state as it was in 1995 with the lack of knowledge in 1995 of his then mental state;

(d) that the learned trial judge wrongly failed to draw an inference adverse to the Respondent for his failure to call Dr Kennedy, a relevant treating psychiatrist, without explanation;

(e) that the learned trial judge wrongly failed to draw an inference adverse to the Respondent for his failure to call Dr Colahan, a relevant treating general practitioner, without explanation;

(f) that the learned trial judge wrongly commented on the failure of the Appellant to require Dr Colahan for cross-examination, when the Respondent had not served or purported to rely on any report of Dr Colahan;

(g) that the learned trial judge wrongly failed to draw an inference adverse to the Respondent for failing to call his ex-wife or sister to give evidence of his condition at the relevant time, in approximately 1995, when they are available to support his case, particularly when his ex-wife was acting as the instructing solicitor for the Respondent in the case and was clearly available to give evidence;

(h) Her Honour wrongly explained the failure by saying 'Neither Ms Wilson nor the Respondent's sister are doctors. It is difficult to see how their evidence would have assisted me in the determination of the special issues in this application';

(i) that the learned trial judge wrongly found that the Respondent was not aware that he had an incapacity in 1994 and thereafter on the basis that his condition fluctuated from time to time;

(j) that the learned trial judge failed to give any or any adequate weight to the numerous complaints the Respondent made about suffering from serious depression in the years between 1994 and 2004 which indicated he was well aware of his condition.

[21]

[23] The second question identified in [9] above was whether it was for the appellant to establish that the incapacity arising from the injury was not known until after 12th November 1997 and that his application for a determination under s 135A(2B) was made before the expiration of three years after the date the incapacity became known.[9] That question should be resolved as one of statutory construction, unaffected by preconceptions derived from equating s 135AC with, for example, s 5(1) or (1A) or s 27 of the Limitation of Actions Act 1958 [10] or provisions requiring notice to be given to a municipal council before an action is brought.[11] Section 135AC may be sui generis.[12] Be that as it may, our primary duty is to give effect to the words that Parliament has used in the context in which they appear.[13]

[24] It is convenient to consider s 135AC(a) first. Putting self-insurers to one side, the essential provision in paragraph (a) is that proceedings must not be commenced unless an application has been made to the Authority before 1st September 2000. The words 'Despite anything to the contrary in the Limitation of Actions Act 1958' and 'subject to the Limitation of Actions Act 1958' simply mean that the paragraph imposes an additional restriction which applies despite anything to the contrary in the Limitation of Actions Act but, if there is an applicable restriction in the Limitation of Actions Act, that restriction applies too.

[25] The natural implication of the words of paragraph (a) is that, in the case of a proceeding under s 135A(4)(b), the worker must satisfy a condition precedent. He or she must show that an application was made to the Authority before 1st September 2000. It is not decisive that the words 'proceedings ... must not be commenced' mean the same thing as 'actions shall not be brought' in s 5(1) of the Limitation of Actions Act. This is an additional procedural requirement and, in any event, an application under s 135A(4)(b) is not itself a common law proceeding. The right to make the application is conferred by statute and the statute imposes the restriction in s 135AC(a).[14]

[26] Again putting self-insurers to one side, the essential provision in s 135AC(b) is that proceedings must not be commenced unless an application has been made to the Authority before the expiration of three years after the date the incapacity became known. For similar reasons to those applicable to s 135AC(a), it is for the worker to show that an application was made to the Authority in time. It is part and parcel of that burden that the worker may have to prove that the incapacity did not become known more than three years before the application was made.[15]

[32]

36. It seems to me that the authorities recognise that where, as a matter of substance, a legislative provision enables a right or liability created by the statute to be defeated, the onus of establishing that the provision applies rests on the party seeking to invoke its operation. Put another way, where on its proper characterisation a provision can be said to be a qualification, exception or proviso to a general rule created by the statute, the burden of proof lies with the party seeking to fall within the qualification. This is particularly so where such a provision requires certain matters to be established before it can operate. The question whether the section has this effect is one of statutory interpretation and the necessary inquiry is whether it is to be characterised as a precondition or element of the right or liability created by the statute on the one hand, or, on the other, an exception to the right or liability which will otherwise operate. Thus, as the court said in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520:

'When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.'

37. And in Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at 139-140 Dixon CJ referred to:

'the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it.'

His Honour continued:

'A qualification or exception to the general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.'

This is to be distinguished from a case where the provision 'contains within itself the statement of the exception or qualification' or where it constitutes 'a statement of the complete factual situation which must be found to exist'.

[91]

[Counsel for the plaintiff] submits that it is important to distinguish between knowledge of serious injury incapacity and knowledge of the injury itself. He submits that, although the plaintiff was unable to recall what he told treaters at the Albert Road Clinic, the notes of that clinic made by the psychiatrist, on 24 November 1995, are important. The notes highlight that the plaintiff had made progress whilst an inpatient and note that he 'considers that he has returned to his "normal self" and denies problems abstaining from alcohol. Hence, has responded to support of care.' [Counsel] submits that this is an indication that the plaintiff did not consider that he had a serious ongoing incapacity at that stage. He also submits that the fact that the plaintiff was discharged from hospital without being prescribed any anti-depressant medication and simply sent back to his treating general practitioner is not consistent with the plaintiff suffering a serious incapacitating depressive illness at this time. Indeed, this point is made by a psychiatrist, Dr Shan, who examined the plaintiff on behalf of the defendants after the plaintiff filed a Workers Compensation Claim, on 29 January 1996. Dr Shan, in his report dated 17 April 1996, states that the plaintiff 'displayed no obvious evidence of depression or anxiety' and goes on to state: 'The severity of depression is in some question as it would appear that his psychiatrist did not feel the need to prescribe anti-depressants nor even to continue seeing him and has been happy to transfer his care to his local general practitioner'.

[Counsel] submits that the Court should accept the plaintiff's evidence that he thought that all of his problems were due to drinking and gambling and, when he overcame those problems after rehabilitation in 2001, he could not understand why there was still something 'wrong with [his] bloody head and that's when [he] got help through [his] friend and put him on to Dianne Perrett - Abrahams' (page 70 of the transcript).[56]

[125]

15 February 2001: 'returned from Detox at Warburton, positive outlook, allergic rhinitis. Actions: Prescription printed RHINOCORT Aq. NASAL SPRAY 100mcg/dose 2 puffs daily both sides. Diagnostic Imaging requested: paranasal sinuses Letter written to Dr Andrew Hayes - re sinuses'.
29 May 2001: 'anxiety symptoms, difficulty coping with problems of his son. Actions: Prescription printed LOVAN TABLES DISP. TAB 20MG ½ mane'.
12 November 2001: 'anxiety depression, sinusitis Diagnosis: Anxiety/Depression'.
5 February 2002: BP (Sitting): 120/80. Diagnosis: dissyness [sic]. Actions: LOVAN TABLET DISP. TAB 20mg ceased. Prescriptions printed: STEMETIL TABLET 5mg 1-2 p.r.n.'.
19 June 2002: 'Diagnosis: Anxiety/Depression. Actions: Prescriptions printed: XANAX TABLET 0.5mg 1 p.r.n.' discussion re son.
12 May 2003: Examination: General: BP (Sitting): 120/80. Diagnosis: Stress. Actions: Prescriptions printed: XANAX TABLET 0.5 mg 1 q. 8.h.pr.n.' Pathology requested; FBE; Use; Creatinine; LFTS; Glucose (fasting); Lipids/HDL (fasting).
18 July 2003: Diagnosis: Stress. Actions: Prescriptions printed: XANAX TABLET 0.5 mg 1 p.r.n. Pathology requested; FBE; Creatinines; LFTS; BSL; Lipids (non-fasting)
5 August 2003: discussion re son. Diagnosis: Stress
25 March 2004: Reason for visit: Stress. Actions: Prescriptions printed: XANAX TABLET 0.5mg 1 p.r.n.
3 September 2004: stress ++ re son, doing drugs, marijuana, moving in with his girl friend, feels he is heading for a breakdown. Reason for visit: Stress. Actions: Prescriptions printed: XANAX TABLET 0.5mg 1 p. r.n. Letter written - re Certificate.
3 December 2004: discussed letter to tax dpt re his illness, using xanax prn. Reason for visit: Anxiety/Depression.
5 January 2005: (DR KAY TUDOR) Superf Lac R hand on new nail SI irregular. Cut NO tendon damage 2% Xylocaine + 4/o SS. Reason for visit: laceration R dorsum hand...
20 January 2005: inhaled kerosene at work, feels weak and dizzy...
31 July 2006: painful L knee, chronic, was under w/c, had 3 operations, claims cannot do building work now due to pain in L knee, o/e scars from previous surgery, knee stable, patelofemoral crepitus, wasting 1 cm circumference L calf vs Rt. Remains anxious and Depress re relationship break-up, stress with son on Drugs, DSS cert 3/12 w/c cert. Reason for visit: Left-Knee pain. Actions: Prescriptions printed: XANAX TABLET 0.5 mg 1 p.r.n. Diagnostic Imaging requested: X-ray - Knee (L) - wt baring [sic].
8 August 2006: Reason for visit: Anxiety Depression. Actions: Result notified by DR. DAVID J SHAP - LEFT KNEE (SERIES 3) 03/08/2006. Letter Created - re. REF LET WITH PROG N. Letter Printed: re. REF LET WITH PROG N. Medication/Product Added: BUSPAR TABLET 5mg 1 t.i.d. Prescriptions printed: BUSPAR TABLET 5mg 1 t.i.d.

[146]

83 With respect, we see nothing among the objective evidence which should cause one to disagree.[76] The evidence supports her Honour's conclusion. The injury in question is a permanent severe mental or permanent severe behavioural disturbance or disorder of a kind recognised as such by psychiatric medicine. Consequently, it is of such a nature, that until the respondent was diagnosed as suffering from that injury, he could not have known, nor could he be expected to know, of facts sufficient from which objectively it could be inferred that he was suffering from incapacity arising from that injury. The respondent's direct evidence was that he did not know that he was suffering from that injury until he was so diagnosed by Ms Perrett-Abrahams. Her Honour saw and heard the respondent cross-examined and accepted his testimony. His testimony was consistent with the medical record evidence (inasmuch as it showed that the diagnoses of the other health care specialists whom he had consulted fell well short of incapacity arising from a permanent severe mental or permanent severe behavioural disturbance or disorder of a kind recognised as such by psychiatric medicine). It was also consistent with the undisputed fact that the respondent continued to work as a builder up to and including the 2006 year of income, except for a short period during 2001 (and that, although his income fluctuated, the trend was upwards over that period). It was consistent, too, with the circumstance that it was only after the respondent was diagnosed by Ms Perrett-Abrahams, as suffering from a severe mental or behavioural disorder caused by his employment, that he made application for WorkCover payments for that injury (even though he had experience in making WorkCover claims and had not hesitated to claim for his leg injury in 1996 when it was diagnosed as compensable). Finally, there was no evidence, direct or inferential, that the respondent was so diagnosed by any other health care professional before being diagnosed by Ms Perrett-Abrahams.

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Judgment (199 paragraphs)

Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 (18 November 2010)

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Legislation Cited (7)

Cases Cited (17)