Paget v JLT Workers Compensation Services Pty Ltd & Glenelg Shire Council [2005] VSCA 144

10 The appellant, who was born on 14th March 1969, left school at the completion of year 9. He worked on farms for two years, then with Partos in Portland for five years and then with CSR Softwoods for three years. He left those last two employments when the businesses closed. He was then unemployed, except for some irregular work unloading fishing boats, until he commenced employment with the second respondent, the Glenelg Shire Council, in May 1996 rebuilding parts of the Great South West Walk. The appellant was working at a location where there were very large rocks that had to be smashed with a jackhammer. On 10th July 1996 the jackhammer broke and had to be returned to the company from which it had been hired in order to be repaired. The appellant's supervisor instructed him to carry the jackhammer up the hill on which they were working. He started carrying it up the hill and immediately felt back and leg pain. "It was", he said in his affidavit, "like someone had stabbed me." He took the rest of the day off but, the following morning, he was still in severe pain.

11 The appellant was unable to perform even light duties and was off work for over a year. He then began work with Cempac in Portland prior to its closing and thereafter with Chemsel at Laverton before moving back to the Hamilton area to begin work at Grampians Wool. In mid-1998 his position there was as a machine operator. He carried out the normal duties of a person in his classification until November 2000, when he was given the job of pressing wool. That meant he had to bend, pick up the wool and put it in a press. It was much heavier work than he had been doing and his back began to trouble him more. He began taking time off work because of his back, which he had not previously done during his time with Cempac, Chemsel or Grampians Wool.

12 In July 2001 the appellant suffered an unrelated elbow injury. He was off work until late October or early November. When he returned, he could not cope with his work, because of his back. He has not worked since March 2002.

13 The appellant swore, in his affidavit, that the incapacity caused by the 1996 injury did not become apparent to him until he began pressing wool. In examination in chief he was asked when he first got to the stage in his own mind that he did not feel capable of carrying out a day's work. He said that it was after he finished pressing. In cross-examination he agreed that he had always had a problem but said that he had learned to block it out, for fear that he would not be able to get employment. He had been very lucky with the three jobs he had had, because he had not had to fill out any forms before he started. He also agreed that, as early as 1997, he knew that he had, in the cross-examiner's words, "an incapacity for heavy work" and that it was "a long-term incapacity".

14 At first sight, there is a straightforward answer to the first question in [9] above, namely that his Honour could not give "leave" under s.135A(4)(b) to "bring" proceedings that, under s.135AC, could not lawfully be "commenced". Mr Tobin argued that that straightforward answer should be rejected for three main reasons. First, s.135AC cannot be used to deny access to any of the other gateways in s.135A, so that it would be anomalous if it applied only in relation to s.135A(4)(b). Secondly, an application under s.135A(4)(b) is of a summary nature. It proceeds on affidavit and oral evidence, including evidence from medical practitioners, is limited. Thirdly, s.135AC does not make it unlawful to commence proceedings of the kind to which it refers. It is just a procedural hurdle.

15 I do not think that the second of those reasons can safely be used to construe the legislation. If, on its true construction, an application under s.135A(4)(b) may be defeated by reliance on s.135AC, it is for the County Court to devise appropriate procedures, so that both issues may be determined fairly. It is not an answer that the rules of court require an application under s.135A(4)(b) to be brought by originating motion or that the practice of the court confines oral evidence. The first reason has more substance. As will appear later, the third reason does not assist the appellant.

16 The scheme of s.135A is that the "serious injury" issue is to be resolved first. Subject to a residual discretion in hopeless cases[6], of which this is not one, that is the issue with which the gateways are concerned. The Victorian WorkCover Authority or a self-insurer may fail to advise the worker in accordance with sub-s.(2DB), in which case the worker is deemed to have suffered a serious injury. The Authority or self-insurer may determine that the worker's degree of impairment would, if assessed in accordance with s.91, be 30% or more, in which case the injury is deemed to be a serious injury. If the determination is less than 30%, the Authority or self-insurer may nevertheless be satisfied that the injury is a serious injury and issue a certificate consenting to the bringing of common law proceedings. A court may grant leave to bring such proceedings if it is satisfied that the injury is a serious injury.

17 I accept Mr Forrest's submission that Alcoa of Australia Ltd. v. McKenna[7] is distinguishable because it concerned the relationship between s.135A(4)(b) and s.135A(2) and the latter sub-section, unlike s.135AC, speaks of the recovery of damages rather than the commencement of proceedings. I also accept his submission that different gateways may have different incidents and that it is not necessarily anomalous that access to only one gateway may be denied by reference to s.135AC. Nevertheless, if there were nothing more to be said, there would still be force in Mr Tobin's first reason if the scheme of s.135A is to focus on "serious injury", in its own right, as a preliminary issue and s.135AC would distract attention from that issue.

18 There is, however, more to be said. The respondents filed a notice of contention pursuant to rule 64.17(5), to the effect that the decision below could be supported on the basis that the words "proceedings in accordance with section ... 135A" in s.135AC include an application, pursuant to s.135A(4)(b), for leave to bring common law proceedings.

19 Mr Forrest advanced four arguments in support of the notice of contention.[8] First, the relevant words in s.135AC are unqualified. There is no reason, counsel argued, why they should not include a proceeding begun by originating motion.[9] Secondly, the Act that introduced s.135AC, the Accident Compensation (Miscellaneous Amendment) Act 1997, also introduced s.135A(2DE), which expressly refers to "proceedings in accordance with this section, other than an application under sub-section (4)(b)". The 1997 Act also introduced s.135A(2DD). That sub-section begins, "In proceedings in accordance with this section ...". It has always been assumed that that includes an application under s.135A(4)(b)[10]. Thirdly, counsel said, the legislature would have used the phrase "proceedings for the recovery of damages", rather than simply the word "proceedings", if the intention had been to refer only to substantive proceedings and not to an application for leave[11]. Finally, reliance was placed on the unreported decision of Phillips, J.A. and Bongiorno A.J.A. in Boral Kinnears Pty. Ltd. v. Dias[12].

20 In my opinion, the second and third of those arguments should be accepted. The first argument simply clears the ground. The fourth argument is not conclusive because of the nature of the application and the fact that the order might be explained in more than one way. The decisive point, to my mind, is that the legislature has provided a dictionary in s.135A(2BA), (2DA), (2DD) and (18A) and, more particularly, in s.135A(2DE). Those sub-sections show that an application under s.135A(4)(b) falls within the description "proceedings in accordance with this section". It is appropriate to apply that dictionary to the expression "proceedings in accordance with section ... 135A" in s.135AC.

21 Mr Tobin argued that, if that were so, a worker who wished to apply for leave under s.135A(4)(b) might first need to obtain a declaration of compliance with s.135AC and, in practice, that could not be done within the 30-day time limit prescribed by s.135A(4)(b). The answer to that submission is that s.135AC does not make it unlawful for a worker to make an application under s.135A(4)(b). I accept the third reason Mr Tobin advanced for rejecting the straightforward answer[13], but it does not assist the appellant. The question whether it was open to the worker to apply for leave under s.135A(4)(b), having regard to s.135AC, may be determined after the proceeding under s.135A(4)(b) is commenced.

22 It follows that the judge was right to deal with the summons at the same time as the originating motion and to allow s.135AC to be used as an answer to the application under s.135A(4)(b).

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.[14] 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 [15] or provisions requiring notice to be given to a municipal council before an action is brought[16]. Section 135AC may be sui generis[17]. 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[18].

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).[19]

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.[20]

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 paragraph (b) does not apply. The opening words of paragraph (b) define the case to which that paragraph applies. The restriction in the part of paragraph (b) beginning with the word "unless" then applies instead of the restriction in paragraph (a). The case to which paragraph (b) applies is where the cause of action arose before 12th 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 paragraph (b) are, or are not, satisfied, i.e. the burden of establishing which restriction - the restriction in paragraph (a) or the restriction in paragraph (b) - applies[21]. The appellant had to show that the incapacity arising from the injury in 1996 did not become known before 7th June 1999. If so, the incapacity was not known until after 12th November 1997.

29 The third question identified in [9] above therefore comes down to whether the judge erred in not being satisfied that the incapacity arising from the injury had not become known to the appellant before 7th June 1999. His Honour directed himself correctly with respect to the burden and standard of proof in relation to that issue. It is to be borne in mind, however, that it is a straight question of fact: there is no element of discretion or anything akin to a value judgment. As I mentioned earlier, the judge said that the appellant emphatically met the test in Humphries v. Poljak. He has suffered a "serious injury" as defined in paragraph (a) of the definition in s.135A(19). Moreover, there is no question of credit: the judge described the appellant's evidence as "candid and forthright". Finally, it is to be remembered that the test is "knowledge", not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the appellant[22].

30 Section 135A(2)(b) provides that a worker may recover damages in respect of an injury if, among other things, "the incapacity arising from the injury did not become known until" 1st December 1992 or a later date. That provision is relevantly similar to s.135AC(b). In State of Victoria v. Collins[23] Winneke, P., in whose reasons Brooking and Chernov, JJ.A. concurred, said that "the incapacity arising from the injury" was not the temporary incapacity for work produced by the initial insult, but rather was "serious injury" incapacity, which becomes known when events demonstrate that the victim of the injury is, for the purposes of that case and the present case, suffering from a serious long-term impairment or loss of a body function. As I said earlier, it is not enough that events demonstrate that to others: the fact of serious long-term impairment or loss of a body function must become known to the worker.

31 Mr Forrest concentrated his submissions on the appellant's knowledge on or before 12th November, 1997. By that time the appellant knew that he had suffered a disc injury; he had been off work for over a year, having ceased work because of the condition of his back; he had continuing back pain and referred right leg pain, and the back pain had not been alleviated by spinal manipulation under general anaesthetic; he had "a long-term incapacity for heavy work"; doctors had told him that he was fit for light work only and some had advised surgery; his leg and back pain affected not only his work but also his daily activities; he could not work on a fishing boat, because of the motion of the boat and the absence of medication; and he had provided his employer in 1996 and 1997 with certificates from his treating doctors to the effect that he was either fit for light duties only or totally unfit for work. Counsel submitted that there was no relevant change after November 1997. The appellant obtained employment with Cempac, Chemsel and later with Grampians Wool, but each of those employments was in a lighter work category, consistent with his limitations.

32 Mr Tobin concentrated on June 1999. At that stage, he pointed out, the appellant was in full-time employment and had been so for nearly two years; he continued in that employment for another three years; he had not required any medical treatment since May 1997; he was coping with the work and believed that he would continue to cope with it; and he was earning between $38,000 and $40,000 per annum, more than he had ever earned in the past. As the judge acknowledged, "there was in some [medical] quarters optimism expressed that the injury would improve with time". That had not happened to any significant degree, but why, counsel asked rhetorically, should that optimism not have communicated itself to the appellant, a married man with a large family who wanted to work and believed, correctly as it proved for some years, that he could hold down a job if he could "get in the door"?

33 It is only the burden of proof that makes me hesitate to conclude that, even if the serious nature of the appellant's incapacity would have been apparent to others, it did not become known to him before 7th June 1999. He said more than once in his evidence that he had learned to block the pain out in his mind. That betokens self-reliance, not self-deception.

34 It is always unsatisfactory, in a civil case, to reach a conclusion based solely on the burden of proof, all the more so if the conclusion appears to work an injustice[24]. I do not consider that we should take that course. We are dealing with a question of fact on a Warren v. Coombes[25] appeal. We are not disturbing the exercise of a discretion or second-guessing a value judgment and the judge accepted the appellant as a witness of truth. All he had to prove was an absence of knowledge, not an absence of suspicion or of facts from which persons of less fortitude might have drawn a more pessimistic conclusion.[26] In my opinion, he discharged that burden.[27]

35 I would make orders in accordance with the following minutes:

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)