ACCIDENT COMPENSATION - Workers compensation - Leave to bring common law proceedings - Serious injury - Severe mental or permanent severe behavioural disturbance or disorder - Cause of action arising before 12 November 1997 - Leave application not to be commenced unless application for determination made before expiration of three years after date incapacity 'became known' - Onus of proof on worker - Sufficient to prove absence of subjective knowledge of facts which, viewed objectively, would constitute serious injury - Relevance of mental healthcare specialists' failure to diagnose condition - Onus discharged - Paget v JLT Workers Compensation Services Pty Ltd [2005] VSCA 144; (2005) 12 VR 692, followed; R v NcNeil [1922] HCA 33; (1922) 31 CLR 76, distinguished; Herschberg & Anor v Mula (1993) Aust Torts Reports 62,664, disapproved; Commonwealth of Australia v Smith [2005] NSWCA 478, considered - Accident Compensation Act 1985, ss 135A(4)(b), 135AC(b).

WARREN CJ, BUCHANAN JA, NETTLE JA, MANDIE JA, BEACH AJA:

1 Mr David Rawlings, the respondent, suffered a psychiatric injury which he claims was caused by his employment with Morris James Rawlings and Joan Marianne Rawlings (trading as M & J Rawlings Builders and Contractors), between 1 January 1994 and April 1994.

2 By originating motion, the respondent sought leave, pursuant to s 135A(4)(b) of the Accident Compensation Act 1985 ('the Act'), to bring proceedings at common law against the appellants. In order to succeed in that application, the respondent had to establish that he had sustained a 'serious injury' within the meaning of s 135A(19) of the Act. The relevant part of the definition of 'serious injury' so far as the respondent was concerned was contained in paragraph (c) of the definition of 'serious injury' - namely, 'severe long-term mental or severe long-term behavioural disturbance or disorder'.

3 The application was heard by Judge Hogan on 27 - 29 January 2009. During the hearing of the application, the appellants contended that the respondent's psychiatric condition did not satisfy the description 'severe long-term mental or severe long-term behavioural disturbance or disorder'. Further, they contended that in any event, the application for leave was barred by the operation of s 135AC of the Act.

4 On 3 March 2009, her Honour delivered judgment granting the respondent the leave he sought. In doing so, her Honour rejected the appellants' contention that the respondent's claim was barred by the operation of s 135AC. Her Honour ordered:

(1) It is declared that an application for a determination from the plaintiff under s 135A(2B) has been made to the Authority or a self-insurer before the expiration of three years after the date the incapacity became known.

(2) That the plaintiff be granted leave to recover damages for injury arising out of or in the course of or due to the nature of his employment with the defendants between January and April 1994.

5 The appellants then sought leave to appeal from this decision. Leave was required because the orders below were orders in an interlocutory application within the meaning of s 74(2D) of the County Court Act 1958.[1] On 8 May 2009, this Court[2] granted the appellants leave to appeal. However, no leave was given to appeal in relation to that part of the judgment holding that the respondent had sustained a serious injury. The leave granted was limited to arguing the correctness of her Honour's conclusion concerning the application of s 135AC. This appeal (brought pursuant to the leave previously granted) is governed by s 74(3) of the County Court Act 1958[3] and the authorities referable to that section.[4]

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

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

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

7 The application for determination under s 135A(2B) referred to in s 135AC is an application by a worker to the Victorian WorkCover Authority ('the Authority')[5] for a determination of the degree of impairment of the worker made under s 135A(3) of the Act. In this case, the respondent's application under s 135A(2B) was made on 21 December 2007. Patently, the respondent's application under s 135A(2B) was not made within the period referred to in s 135AC(a). The issue below (and now on appeal) was whether that application was made before the expiration of three years after the date the respondent's incapacity became known.

8 The grounds of appeal in respect of which leave was granted are as follows:

(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.

Who bears the onus under s 135AC?

1"> 9 Before turning to the principles to be applied in this case, it is necessary to examine the issue of who bears the onus under s 135AC. The decision of this Court in Paget v JLT Worker's Compensation Services Pty Ltd & Anor[6] is often cited as authority for the proposition that a plaintiff (worker) bears the onus of establishing that he or she did not know of his or her 'serious injury incapacity' until a date within three years of the making of an application to the Authority under s 135A(2B). During the course of this appeal, the respondent submitted that in this respect, Paget was wrongly decided.

10 The respondent contended that the plaintiff/worker in Paget was wrong to concede that he bore the onus of establishing that he did not know of his 'serious injury incapacity' within the relevant timeframe. From the report of Paget, it is clear that the plaintiff/worker made this concession at first instance.[7] However, it is less clear whether the concession was maintained on appeal. In any event, the respondent contends that the judgment in Paget shows that the onus question was not fully argued. Specifically, the judgment in Paget does not refer to any argument advanced on behalf of the plaintiff/worker.

11 The Court's reasons in Paget for determining that it was for the worker to show that an application under s 135A(2B) had been made in time were set out in paragraphs [23] to [26]. The Court said:[8]

[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]

12 In essence, the Court in Paget held that s 135AC was a restriction upon a right to make an application conferred by statute (namely s 135A), and was therefore to be construed unaffected by preconceptions derived from equating s 135AC with limitation provisions such as s 5(1) and (1A) of the Limitation of Actions Act 1958. Reliance was placed on R v McNeil.[16]

13 Before proceeding further, it is necessary to examine the legislative history of s 135AC.

1"> 14 Prior to 31 August 1985, workers injured in the course of their employment were able to bring proceedings at common law without any statutory restrictions on damages. From the commencement of the Accident Compensation Act, workers' rights to damages were limited under s 135 to an amount in respect of non-pecuniary loss.[17]

15 This regime was in force until December 1992, when s 135A was enacted - requiring workers to satisfy a serious injury test and access a gateway to restricted common law damages.

16 Five years later (1997), s 135AC was first enacted. It was originally enacted by s 48 of the Accident Compensation (Miscellaneous Amendment) Act 1997. Clause 48 of the explanatory memorandum of the Bill that became that Act provided, inter alia, that '[A] further new section imposes a special limitation period in respect of proceedings in accordance with s 135 and 135A'. Additionally, s 135AC was amended by s 22 of the Accident Compensation (Common Law and Benefits) Act 2000 and subsequently by s 24 of the Accident Compensation (Amendment) Act 2001. In the explanatory memoranda, s 22 of the 2000 Act was described as imposing 'less onerous time limits than those currently imposed applying to certain proceedings in accordance with ss 135 and 135A of the Act' and the purpose of s 24 of the 2001 Act was described as 'to provide for the timing of the limitation of certain actions to be determined by the making of an application'.

17 Section 135AC is expressed in language consistent with the imposition of a time bar.[18] The section imposes a time bar not only on proceedings brought in accordance with s 135A, but also in respect of proceedings brought in accordance with s 135. Proceedings brought in accordance with s 135 were ordinary proceedings at common law, but with a bar on recovering damages in respect of pecuniary loss except in certain defined cases. Even if an application for leave to commence a proceeding under s 135A could be construed as a right to make an application conferred by statute and upon which the statute imposes the restriction in s 135AC,[19] no such conclusion could be drawn in respect of a proceeding brought under s 135. Clearly, s 135AC cannot be construed differently dependent upon whether the underlying proceeding is a s 135 proceeding or a s 135A proceeding. This provides additional support for the proposition that s 135AC is a true time limit provision.

18 The section is to be contrasted with sections of the kind referred to in R v McNeil.[20] In R v McNeil, the relevant time limit provision was contained in a part which was construed as providing a 'new mode' of enforcing claims against the Crown which were not previously available. Because the legislation in that case was all enacted at the one time, giving a right to make previously unavailable claims, it was held that the time limit provision in the part in which the right was given was a condition upon which the right was given and therefore had to be fulfilled. That is not this case.

19 Rather than being analogous to cases like R v McNeil, it is arguable that s 135AC is more like s 82(2) of the Trade Practices Act 1974,[21] of which the Full Court of the Federal Court in State of Western Australia v Wardley Australia Limited[22] said:[23]

However, it is necessary when dealing with s 82 to bear in mind its double operation, to which we have referred above, as dealing both with right and remedy. In our view, in stating that an action under sub-s (1) may be commenced at any time within the three year time limit specified in s 82(2), the latter provision is to be regarded as having a procedural character. That is to say, s 82(2) is a condition of the remedy rather than an element of the right and a prerequisite to jurisdiction which cannot be waived. It follows that it is for the defendant to assert non-compliance, rather than for the plaintiff to assert compliance with s 82(2) as an element of the cause of action.[24]

20 The next question is whether or not it can be said that the requirements of s 135AC(b) are a qualification, exception or proviso to the general rule created by s 135AC(a) that an application under s 135A(2B) had to be made before 1 September 2000. In Cavenett v Commonwealth,[25] this Court had to consider these principles in relation to the question of whether s 5(1A) of the Limitation of Actions Act 1958 was a qualification, exception or proviso to the general rule created by s 5(1)(a) of that Act.[26] Chernov JA[27] said:[28]

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'.

The proper characterisation of a provision, and thus the question where the burden of proof lies, is to be determined, as Dixon CJ said in Dowling, 'in accordance with common law principle upon considerations of substance and not of form.' It is clear enough that the express use of terms such as 'exception' or 'proviso' is not determinative so that it is necessary to inquire into the substantive effective of s 5(1A). The essential question is whether, on its proper construction and as a matter of substance, s 5(1A) operates as a precondition or element of the defence created s 5(1)(a) or whether it is an exception to the right or liability otherwise established by that section. Put another way, the question is whether s 5(1A) qualifies the general rule created by s 5(1)(a) or whether s 5(1A) operates to explicate or qualify s 5(1)(a). I consider that the better view is that, as a matter of substance, s 5(1A) forms an exception or a qualification to s 5(1)(a) so that, the burden of proof lies with the party seeking to fall within its operation. Its effect is to provide for an automatic extension of the limitation period if certain preconditions are established. In the terminology of Vines, it provides a justification or excuse for the bringing of the action which in the normal case would be out of time because, on the basis of additional or special facts, it equates the date of accrual of the cause of action with the time the plaintiff gains relevant awareness of the injury.

22 In Avel Pty Ltd v Multicoin Amusements Pty Ltd,[30] McHugh J put the principle more generally as follows:[31]

Where a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso: Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519. Whatever form the statute takes, the question has to be determined as one of substance: Vines at p 519; Banque Commerciale SA en Liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 at 285.

23 In Paget, the Court chose not to consider ss 5(1) and (1A) of the Limitation of Actions Act 1958 and the authorities concerning those sections. The question of who bore the onus of proof in relation to s 5(1A) had previously been determined by the Appeal Division[32] in Herschberg & Anor v Mula.[33] The Court said:[34]

The appellants [defendants] carried the burden of proof in the court below. See Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27 at 71-74. The appellants [defendants] who pleaded the statute of limitations carried the burden of proving that the respondent's [plaintiff's] damages fall outside the protection afforded by s 5(1A) of the Act. The appellants [defendants] must also satisfy this court that the damages claimed by the respondent [plaintiff] do not consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by her.

24 Thus, in Herschberg, the Appeal Division held that it was for a defendant to prove that a plaintiff who claimed damages for personal injuries first knew that he or she suffered those personal injuries and that those personal injuries were caused by an act or omission of some person more than six years[35] before proceedings were issued. This was the state of the authorities when Paget was heard and then determined in the Court of Appeal.[36]

25 Two and a half months after Paget was decided, Gillard J delivered judgment in Cavenett v Commonwealth of Australia[37] at first instance. As has been seen, there was an issue in Cavenett as to who carried the onus in relation to s 5(1A) of the Limitation of Actions Act 1958. Gillard J expressed the opinion[38] that the statement in Herschberg, extracted above, was wrong. On this issue, his Honour was upheld on appeal. We have already set out the relevant paragraphs in the judgment of Chernov JA.[39]

26 In our view, s 135AC is analogous to ss 5(1) and (1A). Both are limitation provisions subject to a qualification, exception or proviso. Whilst an application of the authorities concerning s 5(1A) of the Limitation of Actions Act 1958 as they existed at the time Paget was decided would have mandated a conclusion that the appellants bore the onus in relation to s 135AC, an application of current authority would produce the opposite result - being the result the Court of Appeal arrived at in Paget.

27 The respondent submits that 'there is a shifting onus found within s 135AC(b)'. His counsel submits that 'it is for the worker to establish that ... a cause of action arose before 12 November 1997 ... and the incapacity arising from the injury was not known until after 12 November 1997'. It is then submitted that 'what follows introduced by the word "unless" is a limitation defence and it is ... for the employer to prove that the application to the relevant insurer was made more than three years after the serious injury incapacity became known'.

28 In Paget, the question of who bore the onus of establishing that the cause of action arose before 12 November 1997 and that the incapacity arising from the injury was not known until after 12 November 1997 was left open. The Court said:[40]

[27] That leaves for consideration the opening words of s 135AC(b). Paragraph (a) contains a restriction (the part of the paragraph beginning with the second 'unless') that is applicable to all cases to which para (b) does not apply. The opening words of para (b) define the case to which that paragraph applies. The restriction in the part of para (b) beginning with the word 'unless' then applies instead of the restriction in para (a). The case to which para (b) applies is where the cause of action arose before 12 November 1997 and the incapacity was not known until after that date.

[28] It is not strictly necessary, for the purposes of this appeal, to decide who bears the onus of establishing that the opening words of para (b) are, or are not, satisfied, ie the burden of establishing which restriction - the restriction in para (a) or the restriction in para (b) - applies.[41] The appellant had to show that the incapacity arising from the injury in 1996 did not become known before 7 June 1999. If so, the incapacity was not known until after 12 November 1997.[42]

29 The reasoning in Cavenett set out above is compelling. Notwithstanding the different legislative histories of s 135AC on the one hand, and ss 5(1) and (1A) on the other hand, there is no basis for distinguishing between them so far as the question of onus is concerned.

30 This conclusion is reinforced by the respondent's concession (correctly made, in our view) that it is for the party asserting that paragraph (b) of s 135AC applies to show that the cause of action arose before 12 November 1997 and that the incapacity was not known until after that date.[43] It is unlikely to have been Parliament's intention to place an onus on a worker to establish that the relevant incapacity was not known until after 12 November 1997 and then at the same time to impose an onus on the respondent to an application to establish the worker's knowledge outside the three year time limit. It seems more likely that insofar as s 135AC casts an onus in respect of the issue of knowledge, this onus is cast on one party regardless of whether the relevant event or circumstance being examined occurred before or after 12 November 1997.

31 For these reasons, we are of the view that it is for the worker to establish that his or her application was made under s 135A(2B) within the three year period after the date the incapacity became known. We are fortified in this conclusion by the existence of decisions subsequent to Paget which have (without argument) assumed the correctness of this proposition.[44]

32 The respondent was born on 6 May 1960. During the relevant period of employment, he was 33 years of age.

33 The respondent completed his schooling at age 16, having been educated to Year 11 level. He left school and commenced an apprenticeship as a carpenter with the appellants. Thereafter, he worked in the appellants' business. The respondent worked in the appellants' business on the understanding that when it came time for the first appellant (the respondent's father) to retire, the respondent would take over the business. The business involved the construction and renovation of domestic dwellings.

The circumstances leading to the present proceeding

34 On the respondent's evidence, it is apparent that during the years leading up to 1994, the finances of the business deteriorated to a point where the business collapsed in 1994. The respondent described the circumstances in the following terms:[45]

Prior to that time, at the request of my parents, I had assisted the business by working without payment of salary for a period of some six months and also by loaning $20,000 which I later ascertained was used to prop up the business which was already in a state of financial collapse. The business was meant to have paid 20% tax on PPS basis for my work but failed to do so. As I have said, all of these matters were unknown to me and my parents did not appraise me of the serious financial problems which the business faced.

A further and substantial difficulty which emerged at the time of the collapse of the business was the impact that such collapse had upon my father. At that time he fell apart and my mother told me that my father was too sick to deal with the problems of the business. I was left to try and at the outset retrieve the financial status of the business and when that became impossible to bring to a conclusion the jobs being undertaken by the business. I was requested by the receivers to complete the two major outstanding contracts that the business was undertaking in order that the payments could be made under those contracts which would then be used to pay the creditors of the business. The receivers applied significant pressure on me to complete outstanding jobs, of which I believe there were 2, on the basis that I was the only person who knew what work was still required and was capable of completing the tasks at hand. Also my own panel van was put into the pool of assets as I attempted to improve the financial position of the business.

35 The relevant evidence concerning the respondent from April 1994 onwards can be summarised as follows:[46]

(a) The respondent attended a general practitioner Southend Medical Centre where he saw Dr Colahan, and since 2001, Dr Shap (there are clinical notes dating from 8 September 1994: specifically, the note for 8 September 1994 records 'separated 12 months ago, building business went into liquidation four to five months ago ...'). Dr Shap said the respondent suffered from chronic anxiety and depression the symptoms of which have been constantly present since the early 1990s, and was a reformed alcoholic who also suffered from a gambling addiction. He said the respondent suffered a 'major psychological trauma' as a result of working in the building industry, but otherwise did not express an opinion directly relevant to the s 135AC issues.

(b) On 19 April 1994, the respondent had an operation on his knee. About 12 months later he tried to start his own business, but due to (what he says in retrospect he perceived to be) his deteriorating psychiatric condition, including alcoholism and a gambling addiction, he was only able to perform limited work. In his oral evidence the respondent said that he thought he started drinking heavily about six months after the business collapsed and that his gambling and drinking progressed at around the same time.

(c) On 17 November 1995, the respondent was admitted to the Albert Road Clinic with symptoms assessed by treating practitioners to be of depression and alcohol abuse where he was an inpatient for 11 days. The clinical notes suggested that the respondent presented with symptoms of depression and alcohol abuse associated with stressors being a marital breakdown and a deterioration in economic status, and was diagnosed as having an adjustment disorder with depressed mood and alcohol abuse. The respondent said that he did not know why he was in there other than that it probably had something to do with his drinking, he did not know then that he had depression, and that he could not now recall what discussions he had with people there or who he saw. When cross-examined on notes that suggested that the respondent himself identified the business failure as a stressor, the respondent maintained that he could not recall individual discussions and therefore denied that suggestion, and that he did not know why he became an alcoholic and a compulsive gambler. He said he thought it was his drinking that was causing him his problems and that that was the reason for which he was there. The clinical notes for 24 November 1995 state that the respondent 'considers that he has returned to his "normal self" and denies problems abstaining from alcohol. Hence has responded to supportive care.'

(d) On 28 November 1995, the psychiatrist Dr Kennedy then referred the respondent to a general practitioner, Dr Colahan, of the Southend Medical Centre for supportive psychotherapy. The respondent could not recall Dr Kennedy.

(e) On 29 January 1996, the respondent made a claim for compensation in which he listed his injuries as 'recurrence of knee problems. Unable to work properly. Stress and depression resulting in hospitalisation'. In answer to the question in the claim form 'Describe what happened to cause the injury/condition ...', the respondent stated 'Continuous pain causing severe depression resulting in hospitalisation'. Dr Kennedy (the psychiatrist) was referred to as the person to whom the injury/condition was reported.

(f) On 15 February 1996, the respondent was admitted to Monash Medical Centre following a suicide attempt involving overdosing on medication.

(g) At about this time, the respondent commenced to perform some work as a builder on his own account, and was progressively limited in the work he could perform due to his psychiatric condition and associated drinking and gambling.

(h) On 17 April 1996, the respondent was assessed by Dr Shan, psychiatrist, in respect of his compensation claim referred to in (e) above.

(i) On 12 August 1996, the respondent was assessed by Mr Russell, general surgeon, in respect of his compensation claim.

(j) On 5 January 2001, the respondent was admitted to Monash Medical Centre following a suicide attempt involving overdosing and cutting his wrists with a carving knife.

(k) Later in January 2001, the respondent was an inpatient for 28 days at Warburton Drug and Alcohol Rehabilitation Centre.

(l) Following discharge from the Warburton Drug and Alcohol Rehabilitation Centre, the respondent obtained a disability pension and commenced attending at Alcoholics Anonymous on a daily basis, and was able to cease drinking.

(m) At some time in 2002, the respondent started to perform some work for Bridge Head Properties where his brother-in-law was a foreman, but he had difficulty coping with work because of what he says in hindsight he saw as his psychiatric condition, which led to a falling out with his brother-in-law. The respondent continued gambling but his alcohol addiction remained controlled.

(n) In April 2006, the former director of the Warburton Drug and Alcohol Rehabilitation Centre suggested to the respondent that he consult Ms Perrett-Abrahams, and on 4 August 2006, the respondent did so for the first time, and he continues to see her on a regular basis. The respondent said that it was Ms Perrett-Abrahams who told him that his psychiatric condition was linked with the failure of the appellants' business. However, Ms Perrett-Abrahams

said that the respondent reported to her that he suffered a breakdown when his father's business went into receivership.

36 The respondent's application was properly to be regarded as barred by s 135AC if 'the incapacity arising from the injury' was known on or before 12 November 1997 - in which case s 135AC(b) would have had no application, leaving the application barred because the respondent did not make an application under s 135A(2B) before 1 September 2000. Alternatively, the application was properly to be regarded as barred by the operation of s 135AC(b) if the respondent had knowledge of the incapacity, arising from his pre-12 November 1997 injury, more than three years before 21 December 2007. The incapacity being spoken about is, of course, serious injury incapacity. It is sufficient to bar the claim if the respondent knew of facts that, viewed objectively, constituted the serious injury incapacity.[47] The fact that an applicant/worker (in this case the respondent) does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.

The evidence of the respondent as to his knowledge

37 In his affidavit evidence, the respondent describes his life from 1994 as beginning 'to collapse' and beginning to 'spiral out of control'. The respondent deposes to commencing to drink 'increasingly large amounts of alcohol and also gambling'. In the respondent's words:

Both [drinking and gambling] became addictions for me. Even now [December 2007], save to say that there (sic, it) was nothing for me to drink my way straight through a bottle of spirits or a slab of beer or a cask of wine, I have little recollection of the years which followed. I do know from medical records that I spent 11 days as an inpatient at the Albert Road Clinic in approximately November 1995 by reason of symptoms which I was then suffering, and which I now understand were assessed as being depressive in nature, complicated by alcohol abuse and gambling addiction.

38 The theme of the respondent's affidavits is that he has no real recollection of specific events in the years that followed 1994. Again, to use his words:

My life remained in disarray and I believe that my psychiatric condition, the nature and extent of which I remained unaware, continued to have a major impact on my life.

39 However, the respondent swore in his first affidavit[48] that he initially consulted a Ms Perrett-Abrahams, a psychologist, on 4 August 2006. Further, he swore that it was not until after this initial consultation that he first understood the cause of his difficulties to be work-related.

40 In cross-examination, the respondent was asked about his admission to the Albert Road Clinic. The respondent said that he could not remember much about that hospitalisation and that he did not know why he was admitted. He also said that he did not even know that he had depression then. He was asked, and answered, the following question:

What did you think you were admitted for?---I don't know what I was admitted for, I honestly don't know. I was just admitted because I was - I suppose, I don't know. I didn't know anything about mental illness then. I didn't even know - all I did was know that I got admitted to that place and I had no idea what happened in those two weeks.

41 In answer to another question about how he came to be admitted to the Albert Road Clinic, the respondent said: 'Sir, I honestly cannot remember anything about that period'. Later in cross-examination, the plaintiff said he thought he was admitted to the clinic for 'something to do with probably my drinking - other than that I don't know'.

42 During cross-examination, the respondent was taken through some of the records of the Albert Road Clinic. He was cross-examined in respect of a record dated 18 November 1995 as follows:

... identifies the major stressor - and I'm suggesting that's you doing the identifying - 'Identifies that the major stressor as the failure of the family's building business two years ago due to his father's financial mismanagement'. Do you see that?---I see - - -

Just a minute, do you see that?---Yes, I see that.

All right. Now I am suggesting to you that's what you did at the hospital. Do you deny that?---I was very sick at the time. I cannot remember what happened in there. I was obviously under - I just do not recall anything that happened in that hospital.

I understand that, but do you deny that you identified the major stressor as the failure of the family business due to your father - - -

[Objection taken and overruled]

Do you deny that that's what you told the psychiatrist?---I deny it because I can't remember it.

43 As has been observed, the starting point is that the test of whether the incapacity was known is whether the respondent subjectively knew of facts at the relevant time which, if viewed objectively at that time, would have been taken to mean that he was then suffering from 'the incapacity.'[49]

44 Counsel for the appellants submitted that it would be enough to satisfy the test if the facts which were known were sufficient to convey that the respondent was suffering from incapacity, even if the facts which were known were insufficient to convey that the incapacity arose out of the serious injury. The submission was based on the difference in s 135AC(b) between the limitation: 'incapacity arising from the injury was known', and the later exception: 'incapacity became known'. He argued that, if Parliament had intended time not to run until it was known that the incapacity arose from the serious injury, the exception would have been drafted in the same terms as the limitation, and since the exception was not so drafted, it implied, expressio unius est exclusio alterius, that knowledge of causation was irrelevant.

45 We reject the argument. The improbability of that having been Parliament's intention is demonstrated by what would be the inequity of its consequences. Consider a case of physical injury suffered in the course of employment the result of insidious factors such as heavy metal contamination, iso-cyanate absorption or electro-magnetic radiation. In such a case, the worker might well be aware of symptoms and incapacity years before any connection to the workplace was objectively discernable, even by medical specialists; and examples can be multiplied. Parliament cannot have intended that time would run against such a worker until the connection to the work place was capable of ascertainment. The better view surely is that the expression 'the incapacity' where secondly appearing in s 135AC(b) refers back to and means the same thing as 'the incapacity arising from the injury'.

46 The second point is that, in this case, we are concerned with serious injury constituted by a permanent severe mental or permanent severe behavioural disturbance or disorder.[50] Such an injury cannot be regarded as if it were, or approached in the same way, as a physical injury.[51]

47 If a worker loses a limb or is burned or deafened or damages his or her spine in the course of employment, the nature and extent of the injury and the incapacity of which it is productive are to a large extent obvious. If, however, a worker suffers a mental or behavioural disturbance, its existence, nature and extent may well go undetected. As Handley JA explained in Commonwealth of Australia v Smith,[52] so much is really the inevitable consequence of the law's limitation of compensable mental problems to conditions which psychiatric medicine classifies as psychiatric injury.[53] Although human beings may suffer all sorts of significant emotional and mental problems from time to time, neither they nor anyone else, short of a psychiatrist or psychologist is ordinarily likely to perceive the problem as arising out of a permanent severe mental or permanent severe behavioural disturbance or disorder. In most cases, it is only when and if they are so diagnosed that they are capable of knowing that the incapacity of which they were aware arises out of that condition.

48 In this case, it must be accepted (as the primary judge did accept) that the respondent suffered a 'break-down' when his father's business went into receivership in 1994; that he suffered physical and some degree of consequent emotional incapacity as the result of injury to his knee in the course of his employment in that business; that he became addicted to drink[54] and gambling which began with the stress of dealing with the liquidation of the family business; that he was twice hospitalised for attempted suicides due to feelings of emotional helplessness; and that, finally, in 2006, he was diagnosed as suffering from a severe mental or permanent severe behavioural disturbance arising out of or in the course of, or due to the nature of, his employment.

49 The question, however, is not whether the respondent suffered symptoms from which a mental health care specialist was so able to diagnose the respondent for the first time in 2006. It is whether the symptoms of which the respondent was aware at relevant times[55] would have been perceived objectively, at those times, as incapacity arising from severe mental or permanent severe behavioural disturbance. The fact is, as the judge found, that they were never so perceived by any of the mental health care professionals who treated the respondent until 2006.

50 Much was made of the respondent's two admissions to hospital following his attempted suicides in 1996 and 2001. How can it be, it was asked, that someone as distraught as that would not be perceived objectively as suffering from a severe mental or permanent severe behavioural disturbance arising out of their employment?

51 It seems to us that the answer lies within the facts as found. On each occasion, the respondent was discharged within days of admission, without any recommendation for continuing psychiatric care, and without the prescription of anti-psychotic medicines. Thereafter, he continued to work and generate relatively significant levels of income in the building industry; in effect, putting up with his feelings of helplessness and despair (albeit with resort to drink and gambling) and believing that he had himself to blame for his limitations. In those circumstances, given that none of the health care professionals whom he saw before Ms Perrett-Abrahams ever diagnosed him as suffering from incapacity arising out of permanent severe mental or permanent severe behavioural disturbance or disorder of a kind recognised as such by psychiatric medicine, why or how should he be taken to have known that he was?

52 Counsel for the appellants submitted that it was impermissible to reason so because the respondent did not put his case before the primary judge on the basis that the failure of mental health care professionals to diagnose his condition meant that he did not know of facts which, objectively discerned, would have conveyed that he was suffering from incapacity arising from severe mental or permanent severe behavioural disturbance relating to his employment with the defendants.

53 That submission is incorrect. It is plain from the following passages from the judge's reasons that the respondent did put his case below in just that fashion:

[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]

54 Counsel for the appellants took the court in detail to passages in the respondent's medical records which, it was said, showed that, contrary to the judge's findings, the respondent was aware of facts sufficient objectively to convey that he was suffering from an incapacity arising from severe mental or permanent severe behavioural disturbance relating to his employment with the defendants.

55 In our view, that exercise was a misconstruction of the documents. Starting with records from the Albert Road Clinic from 17 November 1995, reference was made to an entry relating to the respondent's admission which recorded the following:

... admission of a 35 year old man with symptoms of depression, alcohol abuse compounded by several important social stressors. A marital breakdown, two years, and deterioration in economic status all combine to form the basis of conditions needed for Depression.

...

Depression. Presenting issues explored further. Identifies the major stressor as the failure of the family's building business two years ago, due to his father's financial mismanagement.

Coincided with the separation from his wife and involved the loss of his home and car. Father still owes him approximately $20,000...

The depression exhibited is characterised by poor sleep, loss of appetite, increased alcohol intake and gambling. Marital conflict of two years duration is a major precipitant, along with the deterioration of economic status due to less work as a builder and the assistance given to parents regarding a failed business.

Counsel for the appellants submitted that here was clear evidence that the respondent knew in 1995 that he was suffering from depression and believed that it was caused by the collapse of the defendants' business.

56 As the primary judge observed, however, whatever the nature of the 'depression' described in the notes, the identified causes of the 'Presenting Problems' did not appear to include the compensable injury claimed in 2006; the words 'the assistance given to parents regarding a failed business' probably referred to the matters deposed to by the respondent in paragraph 6 of his affidavit of 20 December 2007 (scil. that prior to the collapse of the business the respondent worked without salary for six months and made a loan of $20,000 to his parents); and those matters were distinct from the stress and anxiety which the respondent suffered in trying to manage the business in 1994. Equally importantly, as the judge said, was that:

the Albert Road records state that the plaintiff responded well to treatment there and actively participated in groups and also had successful weekend leave without needing to contact the clinic. On 24 November 1994 such progress is noted and it is recorded that the plaintiff 'considers that he has returned to his 'normal self and denies problems abstaining from alcohol. Hence has responded to supportive care'. This does not suggest to me someone who at that stage had insight that he had a debilitating long-term psychiatric incapacity...[57]

57 Turning next to a letter of 28 November 1995 from Dr Kennedy, a psychiatrist with the Albert Road Clinic, to Dr Colahan, then the respondent's general practitioner, counsel for the appellants relied on the following passages as indications that the respondent was then suffering from a serious psychiatric condition:

He has been an inpatient of the Albert Road Clinic for the past eleven days, having presented for assessment of a two year history of depressive symptoms, complicated by episodic alcohol abuse and gambling. His symptoms were linked to the following psychosocial stressors:

1. Persisting pain and stiffness of his left knee, due to cruciate ligament, meniscus and chondral pathology.
2. The failure of a family-operated building firm.
3. Separation from his wife and two sons.

Inpatient observation suggested that his depressive symptoms were consistent with a diagnosis of Adjustment Disorder with Depressed Mood, his mental state reintegrating with supportive care and the use of Temazepam 10mg nocte prn. A screening physical examination was within normal limits, as were serum electrolytes, renal function tests, liver function tests, thyroid function tests, and a complete blood picture.

I have issued his [sic] with a sickness certificate for one month and propose to liaise with his orthopaedic surgeon Mr Ian McLean ... to ascertain his eligibility for Workcover payments. If further concerns arise, I am happy to review him.

58 We are unable to see the connection. Even taking the document at its highest against the respondent, it says nothing which suggests a diagnosis of permanent severe mental or permanent severe behavioural disturbance or disorder of a kind recognised as such by psychiatric medicine. To the contrary, it is apparent that Dr Kennedy was of the opinion that the 'depression' to which he referred was so insignificant to require no more treatment than the prescription of Temazepam (which we were told is a commonplace prescription sleeping pill) and productive of so little incapacity as not to warrant a claim for WorkCover payments (in contradistinction to the injury to the respondent's leg, for which Dr Kennedy referred the respondent to an orthopaedic surgeon). We agree with the judge's conclusion that:

... Dr Kennedy's letter to Dr Colahan, on 28 November 1995, [is not] indicative of a serious psychiatric condition. In that letter Dr Kennedy stated that inpatient observation suggested that his depressive symptoms were 'consistent with (my emphasis) a diagnosis of an adjustment disorder with depressed mood'. He did not categorically make such a diagnosis. The plaintiff was not prescribed any anti-depressant medication but simply the sleeping tablet, temazepam, to be taken at night and he was given a sickness certificate for one month. Thus, although in November 1995 it would seem that the plaintiff identified the failure of his parent's building business as a major stressor, the medical evidence does not suggest a mental condition which was severe or long-term at that stage and, hence, I find that the plaintiff could not have known that he had 'serious injury incapacity' at that time.[58]

59 Counsel for the appellants submitted that the judge was in error in refusing to draw an inference adverse to the respondent from the respondent's failure to call Dr Kennedy to give evidence. We disagree. The letter is clear in its terms. It shows the state of Dr Kennedy's opinion at the date it was written. Taken at its highest against the respondent, it goes no further than that the respondent was suffering from depression which warranted no more extensive treatment than sleeping pills, and that it was not thought to warrant a Workcover claim. Furthermore, as the judge said, Dr Kennedy was discharging the respondent from his care. So, realistically, what more is it supposed that Dr Kennedy could have said about the respondent's condition?

60 Similarly, there is no substance in the appellants' complaints concerning her Honour's treatment of Dr Colahan. Dr Colahan's opinion was in evidence. In a confidential medical report for insurance purposes, Dr Colahan set out the respondent's medical history to January 1998, including the development of depression, the respondent's alcohol abuse problem and the hospital admissions. In the report Dr Colahan notes that the respondent was referred to a counsellor for his depression, alcohol abuse and gambling problem. She also notes the referral to Dr Kennedy. Additionally, the report does not note any relevant ongoing issue as at January 1998 (the depression, alcohol and gambling having been noted to have manifested themselves in 1995 and 1996). Again, what more is it supposed that Dr Colahan could have said about the respondent's condition. Thus, the complaint that her Honour should have drawn an adverse inference against the respondent for his failure to call Dr Colahan, ground (e), fails. For like reasoning ground (f) also fails. There was nothing to stop the appellants from seeking to have Dr Colahan produced for cross-examination.

61 We were taken then to records of the Monash Medical Centre to which the respondent presented after taking an overdose of various tablets in an attempt to kill himself on 16 February 1996. Emphasis was laid on a summary which appears in the handwritten clinical notes as follows:

Summary

35 yr old injured builder separated from wife presented to MMC following OD of 50+ Panadol etc in context of being turned down to live with parents. Had attended dinner with them, left after refusal had been given by father, visited club & said goodbye. No previous attempts, nor depressive symptoms however admission for alcohol/depression issues for 2 weeks Nov. 95 + s ↑ alcohol intake at present.

? Adjustment Disorder

? Dependent Personality Issues

? Family Issues.

Sad lonely individual finding it difficult to rebuild life following collapse of both work & relationship. Appears to need & is calling out for nurturing by 'Mother' in the hope this will help him for the future.

D/W Mrs Rawlings

D/W Dr Kennedy - Psychiatrist Albert Rd Clinic

D/W Dr Colahan - LMD

PLAN - home with parents

• F/U Monday -appt given 10.00 am

• F/U with LMD - appt arranged & given to pt.

• Alerted CATT

Spoke with pt & Mother about weekend, validated feelings & reassured. Gave CATT number if concerned. Both left thankful & happy with plan.

Counsel for the appellants submitted that the references to 'depression' and 'adjustment disorder' were significant and, once again, that here was evidence of facts which, viewed objectively, conveyed that the respondent was suffering from a serious mental condition caused by or arising out of his employment of the kind for which he is now seeking damages.

Although the plaintiff must have been in a state of despair to have taken such a step, the notes of Tony Catonese, clinical psychologist on that day, specifically state 'plaintiff not (my emphasis) reporting depressive symptoms'. Thus, on that occasion, although the plaintiff identified various stress factors over the previous two and half years, including his marital separation, his father's building business, his knee injury and increase in gambling and drinking, there does not seem to be any acknowledgement of depressive symptoms. The discharge summary describes him as 'sad, lonely individual finding it difficult to rebuild life following collapse of both work and relationship. Appears to need and is calling out for nurturing by "mother" in the hope this will help him.' The notes under a heading 'Insight' state that the plaintiff was aware of the impact of what he had done and the need to get help and wants help and under a heading 'Judgment' record '? impaired - particularly if drinks alcohol'. The summary has, as a possible diagnosis 'query adjustment disorder, query dependant personality issues, query family issues' but there is no suggestion that the plaintiff was diagnosed with an incapacitating mental disorder at this time and no medication was prescribed for him upon him being discharged home with his parents.[59]

63 Counsel for the appellants argued that her Honour erred in failing to draw an inference adverse to the respondent from his failure to call his sister and his ex wife.

64 In our view, that contention is misplaced. Given that Dr Catonese was unable to diagnose an incapacitating mental disorder, what insight is it thought that they (two people without medical qualifications) might have added to the medical opinion as to whether the respondent then knew of facts which objectively discerned would have conveyed that he was suffering from a permanent severe mental or permanent severe behavioural disturbance or disorder of a kind recognised as such by psychiatric medicine? The rule in Jones v Dunkell[60] is doubtless a salutary conception. But there are circumstances in which its invocation passes the point of marginal utility.[61] We think this to be one of them.

65 Counsel for the appellants took the court next to the WorkCover claim form which the respondent lodged on 29 January 1996, in order to claim compensation for his knee injury and its psychological consequences. Counsel acknowledged that the form was forensically significant, in that it showed that the respondent made no claim in respect of the mental injury the subject of these proceedings at that stage. But counsel contended that the accompanying report of Mr Russell, a general surgeon to whom the respondent was referred after lodging the claim, was significant in stating that Mr Russell attributed the respondent's time off work more to 'his depressive illness rather than for his knee'. The relevant passages of Mr Russell's report of 12 August 1996 were as follows:

He had physiotherapy for three months post-operatively and then took up swimming. At that stage he was having a lot of depression and was having difficulty getting his own business going as well as the problems of getting over the shock and upset of his father's problems. He had a lot of depression.

...

The patient has had time off work between November 1995 and February 1996. It said [sic] that this is because of the psychiatric effects of his father's business bankruptcy and he required admission to a psychiatric hospital for depression at that stage. He also said that he had a lot of knee pain. It seems that this time off work was mainly for his depressive illness rather than for his knee.[62]

66 We are unable to attribute the same level of significance to Mr Russell's report. As the primary judge observed, the natural and ordinary meaning of Mr Russell's reference to 'depression' and consequent time off work was depression which occurred for a relatively brief period in the past. As her Honour explained:

My reading of the history taken by Mr Russell is that the plaintiff at that point was referring to his depression in the past tense. That is 'at that stage', namely, back in 1995 and early 1996. There is no reference anywhere in the report to the plaintiff indicating that he had an awareness of ongoing depressive symptoms when he saw Mr Russell. Indeed, the tenor of the report in terms of the plaintiff's thought processes is quite positive in that Mr Russell records 'the patient wants to get it all behind him and as soon as this WorkCover process is over he intends to get it all behind him'. In my view this history indicates that although the plaintiff was acknowledging that he had suffered depressive symptoms for which he was hospitalised in the Albert Road Clinic, he gave the impression that he was moving on with his life. He certainly did not give a history that he saw himself as having an ongoing psychiatric impairment at the time that he saw Mr Russell.[63]

It should be noted, too, that Mr Russell was commissioned by the appellants' WorkCover insurer, and that the appellants did not consider it necessary or desirable to call Mr Russell to contradict the natural and ordinary meaning of his report.[64]

67 Further, whatever significance is to be attached to a general surgeon's opinion as to whether a patient is suffering from a psychiatric condition, it appears to us to be far more relevant that the respondent was examined by a consultant psychiatrist, Dr Shan, on behalf of the appellants in 1996 (following his discharge from the Albert Road Clinic), and that Dr Shan reported then that the respondent displayed 'no obvious evidence of depression or anxiety' and 'the severity of depression [was] in question'. It was only when Dr Shan re-examined the respondent in 2006, following Ms Perrett-Abraham's diagnosis, that Dr Shan accepted that the diagnosis of major depressive disorder was warranted and that the collapse of the business in 1994 was a significant contributing factor.[65]

68 We were taken next to notes from Monash Medical Centre relating to the respondent's admission to that hospital following his second attempted suicide on 5 January 2001. The following was recorded in the notes under the heading 'Mental State Examination':

Mildly obese - plethoric - man looking older than stated age. Divorced, unemployed father of 2 who made an impulsive para-suicidal gesture last night while intoxicated & feeling lonely. He had just gambled his last $200. Took Paracetamol, Telfast & ETOH & Sup lac [indecipherable]. No continuing suicidal intent. Identifies problems as gambling/drinking. Willing to seek help i/c those.

69 The notes also described the respondent's 'Capacity for Abstract Thought' as 'concrete', and his 'Insight' (explanatory model of illness) in terms of 'a poor grasp'. The recognised sources of the respondent's unhappiness were stated to be: (1) 'Misses his family', (2) 'Uncontrolled ETOH [scil. ethyl alcohol] abuse', (3) 'Gambling addiction', (4) 'Physical problems - Tinnitus - Hay-fever', (5) 'Financial Problems. Wants ETOH Detox/reliance'. At the end of the notes, there was a 'Differential Diagnosis' of 'Depression' and an 'Initial Management Plan' which called for the respondent to be discharged to 'parents' home' and referrals to Warburton Hospital for 'inpatient Detox/Rehab'; AA for 'ETOH' and G-Line for 'GAMBLING'.

70 Far from assisting the appellants, those notes appear to us to support the conclusion that the respondent did not then know that he was suffering from incapacity arising from a permanent severe mental or permanent severe behavioural disturbance or disorder. As the judge put it, they implied that he:

... did not have insight that he had an ongoing incapacity relating to the stress he suffered at work between January and April 1994 as distinct from time to time being aware that he was not managing his life well and not working efficiently.[66]

71 Some reference was made to Dr Shap's [the respondent's general practitioner] clinical notes covering the period from 12 November 2001 to 6 October 2008. The entries, up to the time of Ms Perrett-Abrahams' diagnosis, were as follows:

• 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.

72 In her reasons for judgment, the primary judge stated that:

Unfortunately neither of Dr Shap's brief reports detail the chronology of any treatment given to the plaintiff over the period from 2001 August 2006. Certainly, there is no indication on the evidence before me that between 2001 and 2006 the plaintiff was referred to a psychologist or a psychiatrist for treatment and it is not clear on the material when the plaintiff commenced taking the anti-anxiety medication Xanax, or anti-depressant medication (presently Lovan). (I do note that Dr Cole's report to the defendants, dated 6 September 2006, following an examination on 1 September 2006, states: '... I wonder if even now he might benefit from the prescription of an antidepressant'. This suggests that it must have been after 1 September 2006 that anti-depressants were prescribed.)

If Dr Shap did prescribe any treatment between 2001 and 2006 it would seem that it was ineffective in dealing with the plaintiff's symptoms of depression and anxiety because Dr Perrett-Abrahams' report details that he presented to her with 'an array of distressing symptoms which included chronic knee pain, chronic insomnia, mood swings with significant depression and anxiety as evidenced in psychometric testing results ...'.[67]

73 With respect, that is not completely accurate. The chronology of Dr Shap's treatment of the respondent is apparent from the clinical notes set out above. As can there be seen, Dr Shap first prescribed the anti-depressant, Lovan, for 'anxiety symptoms, difficulty coping with problems of his son' on 29 May 2001 and ceased it, because of dizziness, on 5 February 2002. Thenceforth, he prescribed the anti-anxiety medicine, Xanax, at the rate of one 0.5 mg tablet per nocte in its place.

74 The inaccuracy, however, is of no consequence. The real importance of Dr Shap's notes is that they show, as the judge inferred, that although the Xanax so prescribed was ineffective to deal with the respondent's symptoms of depression and anxiety, Dr Shap did not refer the respondent to a psychologist or a psychiatrist until the referral to Ms Perrett-Abrahams in August 2006. Dr Shap's notes thus support the judge's conclusion that:

it [is] likely that the lack of consistent specialist treatment by a psychologist or psychiatrist has resulted in the plaintiff's symptoms of depression and anxiety becoming entrenched so that nearly 15 years later he still has intrusive symptoms which do seriously impact upon his daily well-being and his capacity to work and which will require ongoing psychological counselling and medication and that he is vulnerable to worsening of his condition if exposed to stressful situations.[68]

75 Counsel for the appellants referred to a report of Dr Shap dated 20 July 2007, in which it was noted that the respondent had been a patient of the practice since 1994, at first, under Dr Colahan and, more lately, under Dr Shap. The report continued:

He [the respondent] suffers from Chronic Anxiety and Depression. These symptoms have been constantly present since the early 1990s

His anxiety and Depression stem from the collapse of the family Building business in 1994. His gambling and alcohol abuse also commenced at that time as a result of financial ruin and inability to cope with insolvency.

Psychologically, his anxiety is aggravated by any reference to building issues and he could not mentally cope with building work.

Counsel submitted that Dr Shap's observations that the respondent suffered from chronic anxiety and depression which had been constantly present since the 1990s, and that the respondent was unfit psychologically to continue to work as a builder, were strong indications that the respondent knew of facts which, if viewed objectively at that time, would be taken to mean that he was then suffering from incapacity arising from a permanent severe mental or permanent severe behavioural disturbance or disorder.

76 In our opinion, it is sufficient to dispose of that point to observe that Dr Shap's clinical notes show that it simply was not the case. Taken at their highest against the respondent, as counsel for the respondent invited us to do, they reveal that Dr Shap considered such 'anxiety symptoms, difficulty coping with problems of his son', 'anxiety depression, sinusitis', 'Anxiety/Depression', 'Stress', 'stress ++ re son, doing drugs, marijuana, moving in with his girl friend', and 'anxious and Depress re relationship break-up, stress with son on Drugs', as he diagnosed, to be due by and large to the respondent's concern over the antics of his son and to be at such a low level of seriousness as to warrant no more than the minimum dosage of the anti-anxiety medicine, Xanax.[69] It was not until 31 July 2006 that there was any mention that the respondent was unfit psychologically to continue to work as a builder.

77 Counsel for the appellants argued that the respondent's failure to call Dr Shap also yielded an inference that anything which Dr Shap could have said about the respondent's condition up to the time of Ms Perrett-Abrahams' diagnosis would not have assisted the respondent's case. Possibly that is so, but it does not mean that the respondent's decision not to call Dr Shap yields an inference that there was anything which Dr Shap could have said that would have been detrimental to the respondent's claim. At most, his absence from the witness box meant that, if there had been other evidence from which to draw an adverse inference, the judge could more confidently have drawn it.[70]

78 As it was, however, there was nothing in Dr Shap's notes which was inimical to the respondent's cause. There was no indication on the evidence that the respondent was otherwise referred to a psychologist or psychiatrist for treatment between 2001 and 2006. Additionally, as the judge said,

... it is only consistent with the plaintiff's lack of awareness that no claim for the subject injury was made until August 2006, just shortly after seeing Ms Perrett-Abrahams. He was familiar with the process of making a Worker's Compensation Claim, having made a claim in early 1996 for what he thought was depression consequent upon his knee injury. If, as the defendants allege, he was at all times aware of an ongoing incapacity referable to the stress of managing the failed business it makes no sense that he would not have made a claim for that prior to August 2006.[71]

79 Finally, we were taken to Ms Perrett-Abrahams' report of 8 April 2007. It recorded that the respondent was first referred by Dr Shap to Ms Perrett-Abrahams on 4 August 2006 and that, between that date and the date of the report, Ms Perrett-Abrahams attended on the respondent on 17 occasions. In the report, under the heading 'Presenting Symptoms', Ms Perrett-Abrahams noted that:

The patient presented to with an array of distressing symptoms which included chronic knee pain, chronic insomnia, mood swings with significant depression and anxiety as evidenced in psychometric testing results[72]...

... He had become socially isolated reporting that he rarely went out of the house with the exception of attending AA meetings. He stated that he felt that he had no future and life was not worth living. He had become exhausted by his constant ruminations about his losses, his lack of future, his knee pain and insomnia. He reported difficulty with relationships and suffered significant social isolation.

80 Counsel for the appellants argued that the presenting symptoms as so recorded were a strong indication that the respondent was aware of the nature and effect of his incapacity before he consulted Ms Perrett-Abrahams.

81 We disagree. As was noted at the outset, we are concerned here with a permanent severe mental or permanent severe behavioural disturbance or disorder and, therefore, with circumstances in which a claimant may be aware of his symptoms but not know that he has sustained such an injury. Consequently, although it is plain that the respondent was suffering stress/anxiety/depression symptoms right up the to the time he consulted Ms Perrett-Abrahams, and to some extent was aware of them, it does not follow that he knew of facts which, if viewed objectively at that time, would be taken to mean that he was then suffering from incapacity arising from a permanent severe mental or permanent severe behavioural disturbance or disorder. Indeed, to the contrary, the respondent's medical records, and, amongst those, perhaps most graphically Dr Shap's notes, show that the respondent was not diagnosed as suffering from a mental disorder of that nature and gravity until he ultimately found his way to Ms Perrett-Abrahams in August 2006.[73] As the judge said:

The plaintiff has never denied that he was in a bad way psychologically following the failure of his father's business and that this necessitated hospitalisation in the Albert Road Clinic. It seems to me that this is all that he was conveying to Ms Perrett-Abrahams when he gave the history which I have just quoted. He also reported to her that he intended to work for himself but found himself with escalating drinking and gambling addictions which commenced while he was dealing with the stress of liquidating the family business. Ms Perrett-Abrahams states: 'He reported that he commenced drinking and gambling, initially to dull his physical and psychological pain'

It is clear that the plaintiff was an alcoholic from some time in 1994 or 1995 onwards through to 2001. The material before me indicates that he has had times when he has appreciated that he has been psychologically very low and may have used the term 'depression', particularly when he presented to the Albert Road Clinic in 1995 and did use the term 'severe depression' when he made a claim for compensation in early February 1996. However, I find that the plaintiff did not have insight that this was an ongoing and debilitating condition.[74]

82 Apart from the medical records, the judge had the advantage, which we do not, of seeing and hearing the respondent cross-examined. With the benefit of that advantage, her Honour found that:

... the plaintiff's explanation as to his lack of insight into his psychiatric condition [was] plausible, particularly in the light of his alcoholism and lack of specialist psychological treatment until his saw Ms Perrett-Abrahams. I thus accept that the contents of paragraphs 16 and 18 of the plaintiff's affidavit sworn on 20 December 2007 are sworn with knowledge that was retrospective and not an indication that he was conscious through all those years that he had a deteriorating psychiatric condition which was responsible for him not being able to work efficiently.

Accordingly, I find that it was not until August 2006, when the plaintiff consulted Ms Perrett-Abrahams that he first knew that he had an ongoing serious injury incapacity (my emphasis) as distinct from being aware from time to time that he did not feel mentally well and was having problems with insomnia and mood swings. This being so, I find that the plaintiff has made an application for determination under s.135A(2B) to the Authority before the expiration of three years after the date the incapacity became known.[75]

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.

84 For these reasons, the appeal must be dismissed.

[1] See Paget v JLT Workers Compensation Services Pty Ltd [2005] VSCA 144; (2005) 12 VR 692, 694 [8].

[2] Constituted by Nettle JA and Coghlan AJA.

[3] The now repealed s 134AD of the Act only having application in appeals under s 134AB in respect of the issue of 'serious injury'.

[4] For example, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 124-5 [20]-[22]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, 133 [22].

[5] Or a self-insurer as defined under the Act.

[6] [2005] VSCA 144; (2005) 12 VR 692, 698 [26].

[9] This question was raised by the Court, rather than the appellant, but, for the proper resolution of other cases, it should be considered. Mr Forrest, properly, did not oppose that course. The judge said that the burden of proof under s 135AC was not really debated: it lay on the defendant in respect of the matters stated in paragraph (a); the defendant had satisfied that burden; and the burden in respect of the matters stated in paragraph (b) lay on the plaintiff.

[10] See, for example, Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27.

[11] See, for example, Harding v Lithgow Corporation [1937] HCA 46; (1937) 57 CLR 186.

[12] That includes its being different from the provisions considered in _Wilson v State of Victori_a [2004] VSCA 55.

[13] Compare Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, 518-21.

[14] Compare The Crown v McNeil [1922] HCA 33; (1922) 31 CLR 76, 96 (Knox CJ and Starke J), 99 (Isaacs J).

[15] See [7] above.

[16] [1922] HCA 33; (1922) 31 CLR 76.

[17] Unless the worker came within one of the exceptions to s 135.

[18] See s 5(1) of the Limitation of Actions Act 1958 which commences 'The following actions shall not be brought after the expiration of six years ...'.

[19] Cf Paget v JLT Worker's Compensation Services Pty Ltd & Anor [2005] VSCA 144; (2005) 12 VR 692, [25].

[20] [1922] HCA 33; (1922) 31 CLR 76 - referred to in n 19 of Paget.

[21] Noting that s 82(2) of the Trade Practices Act 1974 was enacted at the same time as s 82(1).

[22] [1991] FCA 314; (1991) 30 FCR 245.

[24] While this passage was not specifically dealt with by the High Court in Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514, the appeal to the High Court was dismissed and the reasoning of the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ is consistent with this passage.

[25] [2007] VSCA 88.

[26] Section 5(1)(a) at that time provided for a general limitation period of six years in respect of actions founded on tort. However, s 5(1A) relevantly provided:

'An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from the date on which the person first knows -

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.'

[28] Cavenett v Commonwealth [2007] VSCA 88, [36]-[37].

[30] [1990] HCA 58; (1990) 171 CLR 88.

[33] (1993) Aust Torts Reports 62, 664.

[36] Although we note a reference in Clark v Stingel [2005] VSCA 107, [37] to a concession apparently made by counsel for the plaintiff in that case that the onus was on the plaintiff to establish that she fell within s 5(1A), in particular that the knowledge referred to in paragraphs (a) and (b) was gained by her not more than six years before she issued the proceedings. Clark v Stingel was delivered on 12 May 2005, approximately one month before the Court of Appeal's judgment in Paget (9 June 2005).

[37] [2005] VSC 333.

[39] Cavenett v Commonwealth [2007] VSCA 88, [36]-[37], [41].

[40] [2005] VSCA 144; (2005) 12 VR 692, 698 [27]-[28].

[41] One possible view is that, where there is a dispute as to which paragraph applies, it is for the party asserting that para (b) applies to show that the cause of action arose before 12 November 1997 and that the incapacity was not known until after that date. In most, perhaps all, cases that party will be the person bringing the proceedings.

[43] See further Paget v JLT Worker's Compensation Services Pty Ltd & Anor [2005] VSCA 144; (2005) 12 VR 692, [27]-[28], and in particular n 21.

[44] See for example Hurwood v State of Victoria [2005] VSCA 176, [11(f)]; Edwards v McSaveney [2005] VSCA 252, [14] and Papercorp Pty Ltd v Nicolaou [2006] VSCA 143, [19].

[45] Paragraphs 6 and 7 of the respondent's affidavit sworn 20 December 2007.

[46] This summary is largely taken from paragraphs 10 to 23 of the summary filed pursuant to Practice Statement CA2 of 1995.

[47] Papercorp Pty Ltd v Nicolaou [2006] VSCA 143, [6]; AEP Industries Aust Pty Ltd v Mahmoud [2007] VSCA 203; (2007) 17 VR 144, 150 [28]; Smith v Canberra Press Pty Ltd [2009] VSCA 200, [8].

[49] See authorities referred to in footnote 47.

[50] Which it is accepted arose out of, or in the course of, or due to the nature of, the respondent's 'break-down' in 1994.

[51] Cranbrook School v Stanley [2002] NSWCA 290, [68] (Heydon JA); Commonwealth of Australia v Smith [2005] NSWCA 478, [16].

[53] Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 304 [99] (Hayne J).

[54] Until he achieved abstinence through AA in 2001.

[55] Scil. at any time more than three years before making application for leave to institute proceedings.

[60] [1959] HCA 8; (1959) 101 CLR 298.

[61] Payne v Parker [1976] 1 NSWLR 191, 201-2 (Glass JA_); Davies v Pyke_ [2004] VSCA 124, [16] (Buchanan JA).

[64] We leave to one side whether the solecismical 'It said' which appears in the second paragraph from the report set out above, was a corruption of 'It is said'; and, if so, whether the 'it' was said by the insurer. Elsewhere in the report, Mr Russell invariably described what the respondent reported to him in terms of 'he said'.

[69] We were told that it was not in dispute that 0.5mg per day is the minimum dosage for Xanax.

[70] Brandi v Mingot (1976) 12 ALR 551, 559-60; Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111, 138 [66].

[72] It appears from the earlier report that the tests were conducted by Ms Perrett-Abrahams over that period. They included DSM-IV; Beck Depression Scale (BDI) and Dysfunctional Attitude Scale (DAS).

[76] See and compare State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588, 615 [88] (Kirby J).