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[2003] VCAT 559
appellant. TAC’s decision of 11 January 2002 was set aside and the matter remitted to TAC for redetermination in accordance with the reasons; costs were reserved.
The Tribunal decided that a statutory amendment made after Needham had claimed benefits relating to his epilepsy could not be used to take away his existing right to have that claim assessed under the earlier law. It also found that the epilepsy was a distinct injury, even though it resulted from the head injury he sustained in the 1987 accident. As the later claim for loss-of-earning-capacity benefits was made within three years of the epilepsy first appearing, TAC had to determine that claim. The Tribunal did not decide whether benefits were ultimately payable.
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Robert Needham was injured in a transport accident on 24 April 1987. The materials before the Tribunal identified head injuries, a fracture of the odontoid process of the neck, a fractured collar bone and hydrocephalus associated with bleeding inside the head. He underwent surgery for a shunt to relieve raised intracranial pressure and later eye-muscle surgery. His original claim described “severe concussive injuries” as well as other injuries ([2]–[3]).
6 cited instruments linked from this judgment.
TAC accepted his claim for loss-of-earnings benefits in 1987 and paid those benefits for 40.2 weeks. In 1990, TAC notified him that his whole-person impairment had been assessed at 33 per cent ([4]–[5]). A neurologist who examined him for TAC in 1988 considered that he had made an excellent recovery from the concussion, had no neurological impairment, and was not expected to develop untoward neurological sequelae ([6]).
On 27 December 1999, more than 12 years after the accident, Needham suffered a temporal lobe seizure. Neurologist Dr Stark diagnosed temporal lobe seizures with secondary generalisation. He considered the epilepsy more likely than not to be post-traumatic, while acknowledging that its cause could not be established definitively ([7]–[9]). A neurologist engaged by TAC, Dr Kilpatrick, also considered it likely that the 1987 head injury caused the epilepsy ([13]).
Needham's solicitors wrote to TAC on 20 July 2000, seeking medical and like expenses, loss-of-earnings benefits and an adjustment to impairment benefits in relation to the epilepsy ([10]). TAC initially disputed the relationship between the epilepsy and the accident, but later revoked that position. That issue was not the dispute ultimately decided in these proceedings ([14]–[18]).
The later dispute concerned TAC's refusal to consider further benefits. A claim for loss-of-earning-capacity benefits under s.49 was made on 16 November 2001. TAC refused it by letter dated 11 January 2002, reasoning that it could not pay benefits more than three years after the original head injury first manifested. TAC affirmed that position on 1 July 2002 ([19]–[20]).
The Tribunal addressed two principal questions: whether the 2000 amendment to s.68 applied, and, if not, whether the epilepsy was a separate injury from the original concussion ([31]–[33]). It set aside TAC's 11 January decision and remitted the matter to TAC for redetermination. It did not itself award benefits or determine the final merits of the s.49 claim ([57], [59]).
First, the Tribunal considered whether Needham had an accrued right to have his claim determined under the law in force before the amendment. The Transport Accident (Amendment Act) 2000 commenced on 28 November 2000. The Tribunal recorded that the parties agreed it was not intended to operate retrospectively ([28], [43]). TAC nevertheless argued that no right had accrued before the amendment because the statutory process of claim, assessment and determination had not been completed ([34]–[35]).
The Tribunal referred to the general principle that legislation changing the law is not ordinarily read as affecting rights or liabilities arising from past events without a sufficiently clear contrary intention. It set out discussion in Re Dempsey of that principle and of statutory protection for accrued rights, including the reasoning in Esber ([44]). It accepted that Esber and Dempsey arose on different facts, but considered the underlying idea applicable: a right may be conditional and still be a right ([45]–[47]).
The critical event was not the later formal s.49 claim alone. The Tribunal found that Needham had made a sufficiently broad claim to TAC on or about 20 July 2000 for expenses, loss-of-earnings benefits and an adjustment to impairment benefits connected with the epilepsy. That was before the amendment commenced. The Tribunal concluded that this gave him an accrued right to have the claim dealt with under the earlier law, even though the right depended on TAC accepting the claim or, if it refused, a successful review ([46]–[48]). It treated the right as conditional, not as a mere expectation.
Second, the Tribunal had to decide whether epilepsy was a separate injury or simply a manifestation or consequence of the concussion. It found that the applicant sustained concussive injuries in 1987, was diagnosed with epilepsy around 27 December 1999, and that the epilepsy resulted from the earlier injuries ([49]). Causation did not resolve the separate-injury question. The Tribunal considered whether the later condition was sufficiently distinct to be treated as a separate injury.
The evidence about recovery mattered. The earlier neurologist's assessment was that Needham had recovered well from the concussion and had no neurological impairment ([51]). The Tribunal contrasted concussion, which it described as not necessarily productive of long-term symptoms, with epilepsy, a specific recurrent disorder of cerebral function ([51]–[53]). It also referred to impairment materials that distinguished epilepsy as a specific episodic neurological disorder ([53]).
The Tribunal drew on Dafopoulos, where the Court of Appeal had considered whether a later condition could be a discrete injury for the purposes of the earlier s.68 wording. Preuss SM quoted Tadgell JA's example of a later disease attributable to an earlier blow and noted that whether the later condition was discrete would be a question of fact ([54]). The Tribunal also mentioned a passage from Phillips JA's dissent discussing the possibility that a new condition might be a sequela of initial trauma, while remaining a new or discrete injury ([55]). It concluded on the evidence that Needham's epilepsy was separate from the original concussive injury ([50]–[56]).
Finally, s.53(3)(a) was relevant to the period for which s.49 payments could be made. The provision, as reproduced in the reasons, limited payment in respect of an injury for a period after three years from when that injury first manifested ([25]). Because the Tribunal treated epilepsy as a separate injury that first manifested in December 1999, and the s.49 claim was made in November 2001, it held that TAC had to determine the claim under the Act ([57]). This was a decision about whether TAC had to assess the claim, not a finding that Needham met every requirement for payment.
The judgment describes the pre-amendment wording of s.68(1)(d) as allowing a claim within one year where “the injury did not manifest itself at the time of the accident”, with the period running after “the injury first manifested itself” ([30]). In Dafopoulos, the Court of Appeal majority had interpreted that wording as referring to the particular injury for which compensation was claimed, rather than the first manifestation of any injury caused by the accident ([29]).
The 2000 amendment substituted wording that referred to a case “if no injury manifested itself at the time of the transport accident” ([28]). The Tribunal recorded that the amendment commenced on 28 November 2000 and that, if it applied to Needham, it would prevent acceptance of his epilepsy claim because an injury, his head injury, had manifested at the time of the accident and the epilepsy claim came much later ([31]–[32]).
The Tribunal did not determine the general reach of the amended wording for all claims. Its holding was narrower: Needham's claim concerning epilepsy pre-dated the amendment, and he had an accrued right to have it dealt with according to the earlier law ([46]–[48]). It then found epilepsy to be a discrete injury on these facts. The decision therefore turned on both the timing of the claim and the factual separation of the later condition from the initial concussion.
The judgment also addressed s.53(3)(a), which concerned payments under s.49 and related provisions after three years from the first manifestation of the relevant injury. Because the Tribunal treated epilepsy as the relevant separate injury and dated its first manifestation to December 1999, the 2001 claim fell within that three-year period ([25], [57]). The order did not determine the amount or ultimate availability of benefits.
At [46], the Tribunal said Needham had “an accrued right” to have the claim dealt with under the law as it stood before the amendment. In plain English, the Tribunal considered that the right was already engaged when he made a claim before the amendment took effect. It did not matter that TAC still had to assess the claim or that the outcome remained conditional.
At [47], the Tribunal relied on the idea that a conditional right remains a right. The condition was that the relevant facts be established and the claim be accepted, or that a refusal be successfully reviewed. This reasoning answered TAC's argument that no right existed until the administrative process was complete.
At [54], the Tribunal stated: “The fact that the epilepsy may have been caused by the initial head injury does not prevent it from being a discrete injury.” The distinction is between causal connection and legal characterisation. A later condition can result from an earlier injury but still be a distinct injury, depending on the facts.
At [57], the Tribunal said that because epilepsy first manifested in December 1999 and the claim was made within three years, TAC was “required to determine” the s.49 claim. In plain English, TAC could not dispose of the claim solely by treating the 1987 concussion as the only relevant injury and starting the time limit from that date. The Tribunal did not say that payment was automatically due.
At [59], the Tribunal set aside the 11 January 2002 decision and remitted the matter to TAC. That remedy left the benefit assessment to TAC, applying the Tribunal's reasoning.
The reasoning is most directly relevant to a fact pattern where a claimant made a claim concerning a later condition before a statutory amendment commenced, but the claim was assessed or reviewed after commencement. The decision focuses on whether the earlier claim was sufficiently broad to amount to an accrued right, even if the claimant had not yet made a later, more specific claim for a particular benefit ([46]–[48]).
It is also relevant where a later medical condition is causally linked to an earlier accident injury, but there is evidence that it is a distinct condition rather than merely a continuing symptom of the original injury. The Tribunal relied on evidence of recovery from the initial concussion, the later onset of epilepsy, and the medical characterisation of epilepsy as a specific recurrent disorder ([49]–[54]). The judgment emphasises that the discrete-injury question is factual, not resolved merely by proof of causation.
The decision should not be read as establishing that every later consequence of an accident is a separate injury. The Tribunal made a finding on Needham's evidence and condition. Nor did it decide that every earlier communication with an insurer will preserve every later claim. Its finding was that the particular 20 July 2000 letter was sufficiently broad on the evidence before it ([48]).
A further relevant feature is a statutory payment period tied to when an injury first manifests. The Tribunal treated December 1999 as the start point because it found epilepsy to be the relevant separate injury, then compared that date with the November 2001 claim ([25], [57]). A different statutory text or different medical facts could require a different analysis.
The supplied judgment does not identify any later decisions considering Needham v TAC. It therefore does not establish whether later courts or tribunals have followed, confined or distinguished its reasoning. No later treatment can be stated on the material provided.
Within the judgment itself, the principal authority on separate injuries and manifestation was Transport Accident v Dafopoulos. The Tribunal relied on the Court of Appeal's discussion of a later, potentially discrete injury and used it to support treating epilepsy as separate from concussion ([29], [54]–[55]). Esber and Re Dempsey informed the accrued-right analysis ([44]–[47]). Burch was discussed but the Tribunal expressly said it was of limited assistance because it concerned different legislation and facts ([56]).
The Tribunal also referred to Golem and Bausch in considering the possible existence of an onus of proof in Tribunal proceedings. It left that issue unresolved because it was unnecessary to decide it ([42]). These references explain the reasoning in Needham; they do not supply evidence of later treatment of Needham itself.
The Tribunal expressly left unresolved whether s.76(2) imposed an onus on Needham in this proceeding. It described the provision as unclear in its application and did not need to decide the point because it made positive findings on the evidence ([42]). The judgment should therefore not be cited as a final ruling on the application of s.76(2) to every claim made after the initial 18-month period.
The Tribunal also did not decide whether Needham ultimately qualified for s.49 benefits. It found that TAC was required to determine the claim and remitted the matter for that purpose ([57], [59]). Questions about the substantive requirements for payment, the amount payable, or the evidence relevant to the period of incapacity were not resolved in the order.
The judgment does not settle how the amended s.68 wording applies to claims made after 28 November 2000 in other circumstances. The amendment's effect was material to the dispute, but the Tribunal resolved this case through the accrued-right conclusion and its finding that epilepsy was a discrete injury under the applicable earlier approach ([31]–[33], [46]–[56]).
Finally, the judgment does not provide a universal test for deciding when a consequence or sequela becomes a separate injury. It treated the issue as factual and relied on the distinct character of epilepsy, the gap between the concussion and its onset, and the evidence about recovery ([50]–[55]). The scope of that reasoning in different medical or statutory settings remains outside the decision's express findings.
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Medium Neutral Citation [2003] VCAT 559
1. The decision of the respondent of 11 January 2002 is set aside.
2. The matter is remitted to the respondent for redetermination in accordance with these reasons.
For the applicant: Mr M Croyle instructed by Williams, Winter & Higgs
For the respondent: Mr M Fleming instructed by TAC Law
1. By application for review filed with the Tribunal on 22 July 2002, the applicant sought to review decisions of the Transport Accident Commission ("TAC") made on 11 January and 1 July 2002 pursuant to the Transport Accident Act 1986 ("the Act") The decisions under review were described in the application as follows :
"Refusal of the applicant's claim for loss of earning capacity benefits pursuant to section 49 of the Transport Accident Act for the period 26 December 1999 to 7 June 2000 and for permanent impairment benefits with respect to epilepsy pursuant to section 47 and section 48 of the Act".
2. The applicant suffered injuries in a transport accident on 24 April 1987 ("the transport accident"). He was taken by ambulance to the Alfred Hospital where he remained as an inpatient for about seven weeks. A report from the Alfred Hospital giving details of the applicant's injuries was not included in the material filed by the parties. However, the material before the Tribunal indicates that the applicant received head injuries, a fracture of the odontoid process of the neck and right collar bone, and hydrocephalus due to bleeding inside the head. During the time the applicant was an inpatient at the Alfred Hospital, he underwent surgery for a lumbo-peritoneal shunt to relieve the raised intracranial pressure, and later on, eye muscle surgery to improve double vision.
3. The applicant's claim for compensation was lodged with TAC on or about 30 April 1987. In the claim form, he was required to set out the injuries he sustained in the transport accident. He described them as follows :
4. TAC accepted the applicant's claim for loss of earning benefits and advised him of its determination by letter dated 16 June 1987. Loss of earnings benefits were paid for a period of 40.2 weeks.
5. Towards the end of 1988, TAC arranged for the applicant to be examined by Mr David Brownbill, neurologist, Mr P Henderson, Dr Clive Kenna and Dr Philip Bekhor. Subsequently TAC determined the applicant's whole person impairment at 33% and the applicant was advised of this determination by letter dated 6 June 1990.
6. The report of Mr Brownbill is relevant to the present proceedings. He examined the applicant on 22 November 1988 at the request of TAC for the purposes of providing an impairment assessment. In his report of 23 November 1988, he stated in part :
"On the history given it is concluded that this man received a severe concussive head injury in the described accident of April 1986 from which he has made an excellent recovery. It is also concluded that he received a fracture of the odontoid process of the 2nd cervical vertebra which was treated with conservative bed rest and apparently well fused. It is also concluded from the history given that in the concussive head injury he received some intracranial haemorrhage with obstruction to cerebro-spinal fluid pathways, requiring a shunting procedure to relieve intracranial pressure. It is noted that he is now working full time in his chosen occupation, is playing competitive sport and describes no symptoms apart from concentration difficulties when tired. It is considered that these have resulted from the generalised cerebral concussion received in the accident and may be expected to improve slowly with the passage of time".
It is not considered that, on the history given, he suffers any neurological impairment.
It is not considered that any untoward neurological sequelae will occur, although it is possible that in the future shunt malfunctions may require surgical revisions for intermittent raised intracranial pressure".
7. Some 12 years after the accident, on 27 December 1999, the applicant suffered a temporal lobe seizure. He was seen by a neurologist, Dr Richard Stark, at the neurology clinic at the Alfred Hospital on 4 January 2000.
8. In his report of 4 January 2000 to the applicant's treating doctor, Dr Shub, Dr Stark diagnosed "temporal lobe seizures with secondary generalisation". He stated in part as follows :
"There is a background history of episodes of deja-vu going back for about six months. During these episodes he remembers something as though it were a dream..
On 27th December he had been very busy.....He suddenly developed a visual allusion of his right hand sliced in half and this was followed by a major convulsion... He was taken to Dandenong Casualty and had a further episode of the same type.
Since then he has been tired and sore. He's had some pain in the chest and the left shoulder but no further episodes".
9. In a further report of 18 September 2000, Dr Stark said in part :
"The history of the motor car accident in 1987 does suggest a substantial head injury and there is no doubt that head injuries of this type do carry a risk of post-traumatic epilepsy. While most cases of post-traumatic epilepsy become apparent within a few years of an injury of this type there are cases which may develop later.
Thus while it is impossible to be definitive as to the cause of this man's epilepsy I believe that more likely than not it is a form of post-traumatic epilepsy associated with the previous car accident".
10. By letter dated 20 July 2000 to TAC, the applicant's solicitors, Williams Winter & Higgs, advised that the applicant was diagnosed as suffering epilepsy in December 1999 and that Dr Stark had indicated he believed the epilepsy was directly related to the injuries sustained in the accident. A request was made for payment of the applicant's medical and like expenses in relation to the epilepsy, total loss of earning benefits for the six months following the diagnosis of epilepsy when the applicant was incapacitated for work, and an adjustment to the impairment assessment and benefits previously granted pursuant to s.46A and s.47 of the Act to take into account the epilepsy.
11. It is not clear why loss of earnings benefits were sought on behalf of the applicant, as an entitlement under s. 44 of the Act to loss of earnings is limited to the first 18 months after the accident. In any event, by letter to Williams Winter & Higgs dated 27 July 2000, TAC advised that it was unable to pay loss of earning benefits given that the claim was outside the 18 month period after the accident. Further, it requested the medical report from Dr Stark and advised that the impairment assessment had been referred to an impairment officer for consideration.
12. Williams Winter & Higgs provided to TAC Dr Stark's report dated 18 September 2000 under cover of a letter of 21 September 2000 and requested advice as to TAC's attitude to the claim as soon as possible.
13. Some time then elapsed. Dr Christine Kilpatrick neurologist, examined the applicant at the request of TAC on 28 March 2001. By letter dated the same date to TAC, Dr Kilpatrick stated in part as follows :
"Although it is 12 years from the time of the motor vehicle accident to the onset of the epilepsy, I think on balance it is likely that the head injury is the cause of the temporal lobe epilepsy, that is, it is post-traumatic. Usually post-traumatic epilepsy develops within a few years following a head injury but it is certainly recognised that it can develop many years after the event. Given there is no other underlying cause for the epilepsy I think it is reasonable to accept that the epilepsy relates to the head injury of 1987".
14. By letter dated 19 June 2001 to Williams, Winter & Higgs, TAC provided Dr Kilpatrick's report. Notwithstanding the opinion which she expressed as to the relationship between the accident and the applicant's epilepsy, TAC advised that it was not satisfied that the applicant's epileptic condition was related to the transport accident. It advised further that TAC did not accept liability for medical and like expenses and loss of earnings benefits and that the applicant was out of time to seek an adjustment to the impairment assessment.
15. An application for review in proceedings No G50527/2001 was lodged with the Tribunal on behalf of the applicant on 6 September 2001 seeking a review of the determination by TAC of 19 June 2001. The decision sought to be reviewed was identified in the application as TAC's denial of liability for the applicant's epilepsy condition. Subsequently TAC revoked its determination to deny the claim for epilepsy and advised the applicant's solicitors of the revocation by letter dated 13 September 2001.
16. By letter dated 20 September 2001 to TAC, Williams, Winter & Higgs stated that on the basis that TAC had accepted liability for the applicant's epileptic condition they were prepared to agree to the withdrawal of the application, if TAC paid the applicant's costs. They requested a further impairment benefit and they advised they would be submitting details of medical and like expenses for the epileptic condition.
17. Ultimately consent orders were signed on behalf of the parties agreeing to the dismissal of the application in proceedings G50527/2001 and payment of costs by TAC. Orders were made by the Tribunal dated 13 September 2001 to this effect.
18. Mr Croyle, counsel for the applicant in these proceedings, indicated that at that stage the parties were proceeding on the basis that the issue was whether the epilepsy was related to the accident. Having reached agreement on that issue, they considered the proceedings were made redundant.
19. Further correspondence ensued between the parties. Ultimately, by letter dated 16 November 2001, a claim was made by Williams, Winter & Higgs for loss of earning capacity benefits from the period 26 December 1999 to 7 June 2000 pursuant to s.49 of the Act. By letter dated 11 January 2002 to Williams, Winter & Higgs, TAC advised that the applicant could not make a further claim for his epilepsy and that it was not liable to make payments under s.49 of the Act in any period after the expiration of three years after the injury first manifested itself. As the applicant's head injury manifested itself at the time of the accident, TAC was not liable to pay benefits under the section.
20. By letter to Williams, Winter & Higgs, dated 1 July 2002, TAC affirmed the contents of its letter of 11 January 2002. When the application for review was filed on behalf of the applicant, a review was sought of the decisions contained in the two letters just referred to from TAC.
21. In its Tribunal book filed with the Tribunal in these proceedings, TAC included in its reasons for decision an assertion that no reviewable decision had been made in relation to the application for review and the Tribunal did not have jurisdiction to hear the issues purported to be reviewed. At the hearing, Mr Fleming, who appeared as counsel for TAC, indicated that TAC was not persisting with the jurisdictional issue.
22. "Injury" is defined in s.3 of the Act as follows :
"'injury', except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident".
23. Section 35(1) relevantly provides that :
"A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if -
24. Section 49 provides that TAC is liable to pay to an earner who is injured as a result of a transport accident and suffers a total loss of earning capacity a weekly payment in respect of that loss after the first 18 months after the accident or after the earner ceased to be entitled to payments under s.44 or s.45, whichever last occurs, while that loss continues.
25. Section 53 deals with cessation of loss of earnings payments. Sub-section (3)(a) states :
(a) is not liable to make payments under section 48, 49, 50 or 51 in respect of an injury in relation to any period after the expiration of the period of three years after the injury first manifests itself...; "
26. Section 68(1) relevantly provides :
"68. Time for making claim under Part 3
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year -
(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself".
27. Section 76(2) of the Act states :
28. The Transport Accident (Amendment Act) 2000 (Act No 84/2000) ("the Amendment Act") came into effect on 28 November 2000. Section 24(1) states :
(1) For section 68(1)(d) of the Transport Accident Act 1986 substitute -
(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself".
29. In Transport Accident v Dafopoulos [1997] 2 VR 232 the Court of Appeal considered s.68(1)(d) of the Act prior to its amendment. It was held by Tadgell and Ormiston JJA (Phillips JA dissenting) that the period of one year for the purposes of s.68(1)(d) of the Act ran from the first manifestation of the particular injury for which compensation was claimed under Part 3 of the Act, not from the first manifestation of any injury caused by the accident in question.
30. Prior to the Amendment Act s.68(1) provided as follows :
(b) who is a dependant or a surviving spouse of a person who dies -
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year -
(d) in the case of a person injured, if the injury did not manifest itself at the time of the accident, after the injury first manifested itself".
31. Section 68(1) of the Act was amended by the Amendment Act after the occurrence of the transport accident and the applicant's claim for compensation in respect of his epilepsy was made to TAC and prior to the filing by him of both his applications for review in these proceedings.
32. The initial issue for determination by the Tribunal is whether it must apply the law as it exists at the time of the hearing of the application for review, or as it existed prior to the Amendment Act coming into force. It is common ground that if the Amendment Act applies, TAC, and the Tribunal standing in the place of TAC, has no power to accept the applicant's claim for compensation in relation to his epilepsy. This is because s.68, as amended, requires a claim for compensation to be made within one year of any injury first manifesting itself. The applicant's claim in relation to his epilepsy condition was made some 14 years after his initial injuries were first manifest.
33. If the Amendment Act does not apply, the second issue for determination is whether the epilepsy is a separate or discrete injury for which a claim for compensation can be made in accordance with Dafopoulos
34. Mr Fleming submitted in relation to the first issue that the Amendment Act applied. He conceded that it did not have retrospective effect. He argued, however that no right to compensation accrued to the applicant prior to the coming into operation of that Act. In particular a right did not accrue by reason of the applicant suffering injuries, loss of earning capacity or impairment in the transport accident. He argued that the right to compensation required, as well, a statutory process of the making of a claim, assessment by TAC and determination by TAC of the extent of the relevant compensation. Only at the end of that process did the right crystallize.
35. Mr Fleming submitted that as a consequence, TAC had no power to pay supplementary compensation under s.47 of the Act. Further, the expiry of the entitlement period in relation to benefits under s.49 and s.44 was an obstacle to compensation.
36. Mr Fleming submitted that even if the Amendment Act did not apply, this was not a Dafopoulos type case because the applicant's epilepsy condition was merely a manifestation (or no more than a sequelae) of severe concussive injuries claimed in his original claim for compensation. There was no new distinguishable, discrete injury. He indicated that TAC did not deny the epilepsy was related to the accident.
37. Mr Fleming submitted that the applicant had the onus of proof in establishing entitlement involving any questions of fact and he relied on the decision of Ball SM in O'Shea v TAC 17 VAR 458 and the provisions of s.76(2) of the Act. For those reasons, he submitted that the application for review should be dismissed.
38. Mr Croyle submitted that Bausch v Transport Accident Commission (1998) 4 VR 249 makes it absolutely clear that there is no onus of proof involved, except where the statute says so and that s.76(2) does not apply to the present case. He argued that it is the Tribunal's obligation to review the whole of the material and make the correct or preferable decision.
39. Mr Croyle submitted further that the applicant had an entitlement to compensation at the time he suffered injury in the transport accident. This is apparent from s.35(1) of the Act. Once injured, a person is entitled to compensation in accordance with the legislation as it was at that time. It is not necessary for a claim to be made or for a determination of the claim to be made by TAC for a right to accrue.
40. It was further submitted by Mr Croyle that the epilepsy is a discrete condition. In accordance with Dafopoulos the applicant is entitled to make a claim for compensation in respect of the injury.
41. Mr Croyle submitted that the applicant is entitled to benefits under s.49 as the right to loss of earning capacity benefits is open-ended in accordance with sub-section (1). The closure occurs in accordance with s.53(3)(a) which states that TAC is not liable to make payments under s.48, 49, 50 or 51 in respect of an injury in relation to any period after the expiration of the period of three years after the injury first manifests itself.
42. Bowman J indicated in Golem v TAC (G50117/2001 10 May 2002 unreported), that no burden or onus of proof in the curial sense exists in proceedings before this Tribunal, save in a situation where there is some specific provision such as s.76(2) of the Act. His Honour relied on a number of decisions including Bausch. S.76(2) is somewhat unclear in its terms and it is not immediately apparent to me that it applies here where the applicant is not "claiming to be entitled to receive compensation under Part 3 during the first 18 months after the transport accident.." as required by the section. It is a complicated issue and it is unnecessary for me to express a final view as the matter may be disposed by the making of positive findings without the need to determine whether the onus of proof has been discharged.
43. Both counsel agreed that there was no intention that the Amendment Act operate retrospectively. The question arises as to whether there is any accrued right of the applicant to compensation, which is affected by the Amendment Act.
44. In Re Dempsey and State Superannuation Board (1995) 8 VAR 160, Deputy President Macnamara considered whether Mrs Dempsey had an accrued right to rely on the definition of "disability" appearing in the State Superannuation Act prior to the amendments to the Act. At p.165, he said :
"In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 Dixon CJ said:
'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had to find with reference to past events'.
This principle is further exemplified by the Interpretation of Legislation Act 1984 (Vic). Section 14(2) provides inter alia :
The appeal, amendment, ... shall not, unless the contrary intention expressly appears -
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision'.
The question then whether one applies the common law maxim referred to by Dixon CJ or the provisions of the Interpretation of Legislation Act is whether there is any accrued right on the part of Mrs Dempsey or liability on the part of the Board.
Mr Shand submitted that since no retirement had been effected as yet the mere taking of administrative steps towards the exercise of a right or an application for that right was not sufficient to create an accrued right or liability. See for instance Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819. It seems to me that Mrs Dempsey had a right as soon as her administrative reconsideration was unsuccessful to appeal to this Tribunal under s.85(2) of the 1988 Act. She availed of that right prior to the amendment to the 1988 statute. It is true that her application for review as made out of time. The effect of the Tribunal's order extending time is, however, to cure that defect retrospectively. .....
Mr Coish on behalf of the applicant submitted that his client's case was similar to that of the appellant in Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430. Mr Esber was a former member of the Defence Forces receiving weekly payments under the Compensation (Commonwealth Government Employees) Act 1971 (Vic). That statute gave him an entitlement to redeem those weekly payments by receipt of a lump sum. His application to the Commonwealth Administrative Appeals Tribunal for review was out of time but the time was extended. After the application for review but before the hearing the 1971 Act was repealed. The High Court held that Mr Esber had an accrued right to have his application dealt with in accordance with the 1971 Act. It decided this primarily upon transitional provisions which have no counterpart in the present case. However, as an alternative basis for its decision the Court relied upon s.8 of the Acts Interpretation Act 1901 (Cth), which in this regard is not substantially different from the Victorian enactment. Mason CJ, Deane, Toohey and Gaudron JJ said at 440 that Mr Esber 'had a right to have his claim for redemption determined in his favour if the delegate had wrongly refused his claim ...'. Once the appellant lodged an application to the Tribunal to review the delegate's decision he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not 'a mere right to take advantage of an enactment' nor was it 'a mere matter of procedure, it was a substantive right'.
In my view these principles apply to the present appeal and accordingly it is the definition of disability appearing in the State Superannuation Act 1988 (Vic) prior to 20 December 1994 which is relevant to this appeal. The facts are strikingly similar to those in Esber's case. The applicant had an accrued right no later than the time when she lodged her application for review of decision".
45. Mr Fleming submitted that Esber, on which Macnamara DP relied, did not apply as Mr Esber's right to have his claim to redemption determined in his favour accrued at the time he lodged an application for review with the Administrative Appeals Tribunal. In the present case, the Amendment Act came into force prior to the filing of an application for review by the applicant.
46. I accept that Esber and Dempsey were decided on different facts. However, in my view, the applicant had a right to make a claim for compensation for epilepsy at least from the time the condition first manifested itself and he made a claim to TAC for loss of earnings and an adjustment to his impairment benefits in relation to his epilepsy. This was on or about 20 July 2000, prior to the Amendment Act coming into force. By the time he made his claim, he had an accrued right, (which might fructify during the assessment process) to have his claim dealt with in accordance with the law as it stood prior to the Amendment Act. In my view, the right remained a right, notwithstanding it was conditional upon a decision by TAC to accept his claim, or if TAC rejected his claim, conditional upon a successful review by the Tribunal.
47. Such an approach appears to be consistent with the following passage by Mason CJ, Deane, Toohey and Gaudron JJ in Esber at p.440 :
"If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in N.S.W Aboriginal Land Council v The Minister [The Winbar Claim] (17) :
'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional'.
48. I have considered whether the applicant's failure to claim loss of earning capacity benefits prior to the Amendment Act coming into force was a failure to avail himself of his right to such benefits. My perusal of the material filed by the parties indicates that a claim for such benefits was not made until 16 November 2001. In the end, I have formed the view that his claim made by letter from his solicitor's to TAC on 20 July 2000 for loss of earnings benefits, medical and like expenses and an adjustment of his impairment benefit was sufficiently broad for this purpose.
(a) the applicant suffered concussive injuries in the transport accident;
(b) on or about 27 December 1999, the applicant was diagnosed as suffering from the condition of epilepsy;
(c) the epilepsy resulted from the concussive injuries sustained by the applicant in the transport accident.
50. I am also satisfied that the epilepsy condition is a separate injury from the concussive injuries suffered by the applicant in the accident. My reasons for so finding are as follows.
51. A concussive injury, unlike epilepsy, is a phenomenon not necessary productive in itself of long term symptoms. Mr Brownbill, an expert in the field of neurology, expressed the view in November 1998, that the applicant, whilst suffering a serious concussive injury, had made an excellent recovery. He found that the applicant had no neurological impairment and that there would be no untoward neurological sequelae.
52. Epilepsy is a specific disorder of cerebral function and recurrent in nature. It is defined in Taber's Cyclopaedic Medical Dictionary, 15th Edition as : "a recurrent paroxysmal disorder of cerebral function characterised by sudden, brief attacks of altered consciousness, motor activity, or sensory phenomena. Convulsive seizures are the most common form of attacks, but any recurring seizure pattern is considered epilepsy".
53. The American Guides to the Evaluation of Permanent Impairment 2nd Edition ("the Guides") in Chapter 2 recognize that particular conditions can result from concussive injuries attracting separate impairment ratings. Those conditions include language disturbances, disturbances of complex integrated cerebral function and emotional disturbances. Epilepsy is described as a specific episodic neurologic disorder at p.63 of the Guides.
54. The fact that the epilepsy may have been caused by the initial head injury does not prevent it from being a discrete injury. The example provided by Tadgell JA at p.236 in Dafopoulos is of assistance on this point. His Honour said :
"There is nothing, so far as I can see, to preclude the making of more than one claim for compensation by a person who has suffered more than one injury as a result of a single transport accident. Suppose, for example, that a victim of a motor car accident suffers a stout blow to a lower leg, producing no more by way of a manifestation of injury than instant severe pain, which dissipates within days, and bruising which lasts for no more than a few weeks. Injury of that kind, while appreciable and perhaps even severe, would not merit compensation under the Act (save any reasonable costs of medical services in excess of the threshold prescribed by s.43(1)(b) if it did not result in loss of earnings of the victim for more than five working days after the accident and did not produce any measurable impairment. The subsequent loss of the lower leg from supervening osteomyelitis attributable to the blow, the disease first manifesting itself more than a year after the accident, would prima facie be compensable under the Act. Whether the osteomyelitis were a discrete injury would presumably be a question of fact. If it were a discrete injury, I can see no reason why a valid claim for compensation for the result of it should not be made within a year after its first manifestation, even if no claim had been made within a year following the accident in respect of the initial pain and bruising. ".
55. The example provided Phillips JA in his dissenting judgment also appears to lend support to the view that a condition which is a sequelae of an initial injury may nonetheless be a separate or new injury. At p.242 his Honour made the following observation in relation to the submission for Mrs Dafopoulos that the period of one year for the purposes of s.68(1)(d) of the Act ran from the first manifestation of the particular injury for which compensation was claimed. He said :
"Moreover, the contrary view of s.68(1) could lead to multiple claiming. If it is correct that s.68(1) operates in relation to the injury (or injuries) for which the claim for compensation is being made, it seems to follow that as and when some other (and possibly discrete) injury emerges, a fresh claim could be made. The new 'injury' may be no more than a new condition emerging; it may be merely one of the sequelae (expected or unexpected) of the initial trauma. Or it may actually occur as a result of some intervention - say through surgery to deal with earlier injury ...".
56. Both counsel referred to the Federal Court decision of Australian Postal Corporation v Burch [1998] FCA 944; 156 ALR 483. The Court comprising Heerey, Sundberg and North JJ had to consider whether a stroke suffered by the respondent constituted an injury for the purposes of s. 14(1) of the Safety, Rehabilitation and Compensation Act 1898. Their Honours held that as a matter of law a finding of rupture or breaking of some tissue was not an essential pre-requisite to a finding of injury (in the ordinary sense) of an internal nature. At p. 488 (a passage to which Mr Fleming referred) their Honours said that a stroke was an injury' as it was a disturbance of the normal physiological state....or dramatic physiological change.." The decision is not of great assistance in the present case as the Court was required to consider different legislation and different facts. However, it might be argued that the epilepsy was a disturbance of the applicant's normal physiological state or a dramatic physiological change and thus an injury which was distinct from the original concussive injuries
57. The applicant sought loss of earning capacity benefits pursuant to s.49 of the Act for the period 26 December 1999 to 7 June 2000 when he was unable to work following the temporal lobe seizures which he suffered on 27 December 1999. The claim was made by letter to TAC dated 16 November2001. Given my finding that the epilepsy first manifested itself in December 1999 and the claim was made within 3 years of that date (as required under s.53(3)(a) of the Act) TAC is required to determine the applicant's claim for loss of earning capacity benefits in accordance with the provisions of the Act.
58. I note that neither counsel argued that the dismissal of the application for review No G505027/2001 had any particular effect in relation to the matters for consideration in this review. I consider this to be the correct approach given the application for review in those proceedings sought only to review TAC's decision denying liability for the epilepsy condition.
59. It would appear from the material before me that the decision which is subject to review is TAC's decision of 11 January 2202. The decision of 1 July 2002 was merely an affirmation of the earlier decision. In view of my findings, the decision of TAC of 11 January 2002 is set aside and the matter is remitted to TAC for determination in accordance with these reasons. I reserve the question of costs.
Needham
TAC [2003] VCAT 559
(1998) 4 VR 249
(1957) 96 CLR 261
(1992) 174 CLR 430
TAC’s decision of 11 January 2002 was set aside and the matter remitted to TAC for redetermination in accordance with the reasons; costs were reserved.