First appeal issue: application of s151A(5)
17 The essence of the Appellant's challenge to the decision of Sorby DCJ is this. That while he purported to apply the test laid down in State of New South Wales v Taylor set out below, for whether the relevant conditions were satisfied to enliven the leave discretion, he did not in fact do so. Thus the way in which he applied the test failed to give effect to that test as it bore upon the proper construction of subparagraph (c) of s151A(5). The Appellant contends that a worker will only be prevented from seeking leave to revoke his or her election, if there be reasonable cause to believe, at the time the original election was made, that the worker's medical condition would deteriorate in the way it actually had; that is, that the nature and extent of that deterioration must be predictable. This is the significance of the use of the words "the further deterioration". Thus the fact that there was reasonable cause to believe that some of the elements of the further deterioration would occur is not fatal to the Appellant's case, if it be the case that there was no reasonable cause to believe other elements of that deterioration in the Appellant's medical condition would occur. While the injury was to the Plaintiff's right wrist, the Trial Judge was in error in so limiting the expression "the medical condition" and thus merely to so much of the deterioration as was sited in the right wrist itself. That is, as distinct from a medical condition still attributable to the injury to the right wrist but not actually located there or in the lower arm. The Trial Judge's error can be explained as follows. He first noted the findings of Dr Ellis in his report dated 23 January 2001 and the deterioration consisting of the development of reflex sympathetic dystrophy, the development of adverse symptoms affecting the right arm, shoulder, neck and left arm. Error came when he concluded that these symptoms, though not prognosticated at the time of the election in March 1996, must be disregarded as falling outside the person's relevant medical condition for the purposes of s151A(5)(b) and in consequence (c).
18 The test to be applied, as the Trial Judge recognised, is to be found in the following passage from the majority judgment of Gleeson CJ, McHugh and Hayne JJ (at 467):
[12] The form of the subordinate clause in s151A(5)(c) is explained by the fact that it is for a court to determine whether "there was no reasonable cause to believe that the further deterioration would occur". That fact, together with the omission of any reference to the injured person's belief, suggests that the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was "no reasonable cause to believe that the further deterioration would occur", it must refuse the application. If it holds that the applicant has proved that there was no reasonable cause for such a belief, it may, but not must, give the applicant leave to revoke the election.
[13] Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had . The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated." [emphasis added]
19 The emphasis that I have placed on the word "the", as a definite article before the words "further deterioration" in subparagraph (c), is to show how the further deterioration refers to the actual manner of deterioration derived from, but not limited to, the original injury or its site. This supports a wider construction than that adopted by the Trial Judge. He focused upon the immediate effect of the injury, in this case a damaged wrist. He excluded further later material deterioration to the person's wider medical condition though caused by the original injury to the wrist. Thus taking the facts in State of New South Wales v Taylor, Callinan J, though in the minority, uncontroversially describes the back injury suffered by the plaintiff in that case. He does so not merely in terms of a particular prolapse of a degenerative disc in the back (at 485 [77]) but as including pain and discomfort in the worker's back more generally and not only in its immediate effect on his right leg but also later in his left leg. There is nothing in the majority judgment which would take any narrower view of the worker's condition than that uncontroversially adopted by Callinan J and derived in turn from the original trial findings. While the majority judgment concluded that in light of the evidence, including the evidence concerning the worker's further deterioration, the worker failed to prove that at the time he made his election "there was no reasonable cause to believe that the further deterioration would occur", that conclusion in no way depended upon a narrow definition of the worker's medical condition. In particular it did not require exclusion of any deterioration that was not at the site of the original injury but ramified from it as the Trial Judge in the present case sought to do.
20 Indeed to adopt so restrictive an interpretation would lead to consequences, often unjust in result and contrary to an evident legislative intent for such choices not to be loaded in favour of a premature common law action. Take the example of a back injury to a vertebra from a localised blow. Common experience shows that such an injury is not always quarantined to the immediate site of the original blow. Yet on the Trial Judge's reasoning, if an election were made for the statutory recovery, and the injury were later to have consequential deteriorating effect on the rest of the back or neck, that deterioration would not bring s151A(5) into play. There would simply be no discretion to give leave. Injured workers would be forced to elect common law damages prematurely, for fear of losing rights in the event of a later deterioration in another site than the actual injury, though resulting from it. That would be, prima facie, a surprising result.
21 Nor, contrary to the conclusion of the Trial Judge, is it the case that, "to find otherwise would open the 'gate' in s151A beyond what the legislators intended". A useful discussion of the legislative history appears in the judgment of Kirby J in State of New South Wales v Taylor, though it failed to throw any interpretive light; that is, either favouring a restrictive interpretation in favour of the employer or an expansive interpretation favouring the employee. Thus (at 476) he says,
"[48] In its original form, the Act abolished common law remedies against employers in respect of injuries sustained after its commencement56. The Minister, explaining this measure, stated that it was taken in order to contain the costs of workers' compensation insurance and to make investment in the State more attractive to potential employers57. However, in 1989, the New South Wales Parliament retrospectively restored the right to damages at common law58. This restoration occurred upon terms which restricted the recovery of damages to "seriously injured workers"59. The provisions of s151A were enacted amongst the foregoing amendments which established the new regime for damages claims. That regime imposed severe restrictions upon recovery."
51. The Act, s149(1), as originally enacted.
52. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 14 May 1987 at 12205-12206.
53. Workers Compensation (Benefits) Amendment Act 1989 (NSW).
54. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 1 August 1989 at 8820.
22 The Trial Judge feared opening the gate too wide. But without introducing the further unjustified constraint of a narrow localised notion of "the person's medical condition" the High Court's interpretation of s151A(5) recognised the substantial hurdle in the way of revoking an election. That hurdle lies in having to prove a negative, namely that there was no reasonable cause to believe that the condition would further deteriorate as it had.
23 It is that hurdle which the majority judgment did adopt that remains the further issue to be considered.
24 The Trial Judge concluded that, based upon reports of Drs Herbert, Cameron and McKessar, Dr Herbert being the treating specialist it was quite clear these did point to "further deterioration in the Plaintiff's wrist condition, as would have entitled the Plaintiff to additional permanent loss concentration had it existed at the time of the election on 5 March 1996" (Red, 11-12). He notes the submission concerning deterioration in other ways as well as identified in the report of Dr Ellis ("reflex sympathetic dystrophy affecting his right arm, shoulder and to a lesser extent his neck" and had also developed "pain and disability in his left arm as a result of compensatory overuse, with "10% loss of efficient use of his left arm above and below the elbow" and 70% loss of use of his right arm and 15% impairment of his neck). He notes the submission that "these additional medical conditions were not prognosticated at the time of the Plaintiff accepting lump sum compensation in March 1996". He determines that, based on his narrow interpretation of medical condition as limited to the actual site of the worst injury (and thus lower arm) "the medical evidence at March 1996 was such … that it would not be unreasonable to believe that further deterioration [scil to the right wrist and inferentially lower right arm] would occur".
25 The Trial Judge thus does not reject the submission, or evidence, of deterioration beyond right wrist and lower arm. Nor that there was no reasonable cause to believe the latter deterioration would not occur. His holding is based solely on the narrow notion of medical condition and relief in relation to it.
26 On appeal, the Respondent did not argue that these additional medical conditions did not occur. Nor did he put any argument as to their prognostication. The Respondent argued instead that some of these at least were the result of repetitive strain injury rather than the original wrist injury. From a careful review of the evidence, it is clear that at least some of the additional medical conditions, in particular the reflex sympathetic dystrophy, were not attributed to RSI but to the original injury. It is not necessary to go further than this for present purposes. This can be a matter for future consideration if still challenged were a common law trial for damages to proceed. The determination by this Court on appeal concededly gives rise to no issue estoppel concerning whether the injury caused the further injury in the Appellant's medical condition beyond the direct injury to the wrist.
27 Having regard to the nature of the deterioration and its extensive ramifications, and reviewing the reports from 1995 and 1996, it is evident that there could have been no reasonable cause for a belief that the further deterioration which did occur, would occur. I would conclude that the Appellant succeeds in the first five grounds of appeal pertaining to s151A(5) and thus that the relevant discretion to permit the election to be revoked is enlivened. The only impediment to that discretion being exercised in favour of the Appellant is the extensive delay. The effect of that can be considered as well in the context of s151D of the Act, in relation to leave to bring a common law action for damages more than three years after the date on which the injury was received.