Wilson v State of Victoria [2004] VSCA 55

5. The orders their Honours propose, in which I concur, are summarized in the following minutes:

1. Grant leave nunc pro tunc, if leave is necessary, to appeal from the order made by the County Court on 25th September 2002 refusing the appellant's application pursuant to s.135A(4)(b) of the Accident Compensation Act 1985.

2. Grant leave to amend the grounds of appeal by substituting the four grounds set out in Buchanan, J.A.'s reasons at [10].

3. Allow the appeal, set aside the order made on 25th September 2002 and remit the application to the County Court for re-hearing.

13. The appellant joined the police force as a cadet at the age of 16 years in 1979. He attained the rank of senior constable and retired from the police force on the ground of ill health on 7 July 2000 as a consequence of suffering a mental breakdown in April 1999, after which he was unable to return to work.

16. In these proceedings, the appellant sought leave from the County Court pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act") to bring

proceedings against his erstwhile employer to recover damages for injury consisting of post traumatic stress disorder. Section 135A(6) provides:

"(6) A court must not give leave under sub-section (4)(b) unless it is satisfied that the injury is a serious injury."

The appellant contended that his post traumatic stress disorder amounted to a "severe long-term mental or severe long-term behavioural disturbance or disorder" within the meaning of paragraph (c) of the definition of "serious injury" contained in s.135A(19) of the Act.

22. In the course of his employment the appellant witnessed or participated in a number of traumatic events. The first occurred in 1980 when, as a 17 year-old cadet, the appellant encountered the body of a man who had shot himself in the head. The last took place in August 1998 when the appellant was attacked by a woman wielding an iron bar. Between the dates of those events the appellant identified some seven incidents which he claimed occasioned him trauma.

25. The judge who heard the application said he had "no difficulty in finding that at present the plaintiff does have a work-related serious injury", for counsel for the respondent made no submission to the contrary. His Honour said:

"The issue between the parties is that the plaintiff has not shown that he suffered a severe post-traumatic stress disorder, as a result of his work, between 1 September 1985 and 12 November 1997 ..."

29. The first date was supplied by s.4(1) of the Act, which provides, so far as is presently relevant:

"(1) Despite anything to the contrary in this Act - (a) this Act, other than Divisions 6A and 6B of Part IV, applies to and in relation to an injury to a worker on or after the appointed day arising out of or in the course of employment on or after the appointed day; and (b) this Act, other than Divisions 6A and 6B of Part IV, does not apply to or in relation to an injury to a worker - (i) before the appointed day arising out of or in the course of employment before the appointed day; or (ii) after the appointed day arising out of or in the course of employment solely before the appointed day; ..."

The "appointed day" was 4 p.m. on 31 August 1985.[2]

34. The second date was supplied by s.135A(1), which provides that "A worker who is ... or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997 ..." shall not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except, inter alia, as permitted by and in accordance with the section. The traumatic events which may have caused or contributed to the disorder suffered by the appellant occurred within and without the relevant period.

37. The judge in the County Court described the events said by the appellant to have traumatized him, reviewed certain of the evidence given by the appellant and medical practitioners and concluded that the plaintiff had not established that he had sustained a severe post-traumatic stress disorder in the period from the appointed day to 12 November 1997.

40. At the outset of the appeal counsel for the appellant sought leave to amend the notice of appeal by replacing the original grounds of appeal with the following grounds:

"1. The learned trial judge was wrong in law and in particular, failed to correctly apply the law as set out in s.135A of the Accident Compensation Act 1985 (`the Act') in determining that he was unable to make a finding that the appellant (plaintiff) had discharged his onus of proof that the post-traumatic stress disorder in its severe state arose after the 1st September 1985 but before the 12th November 1997 and that therefore this application must be refused. 2 The learned trial judge having found that as at the date of the hearing before him, the appellant (plaintiff) was suffering from a serious injury which was work related, he ought to have granted the appellant (plaintiff) leave to bring proceedings claiming damages. 3. It was not open for the trial judge to find that at the trial for damages, the appellant's prospects of establishing either or both of the criteria set out in s.135A(2)(a) and (b) of the Act were `absolutely hopeless' or `futile' or `bound to fail'. 4. The learned trial judge: (a) failed to adequately take into account the evidence, and in particular, the complete and full evidence of Dr Martin, Dr Marriott, Dr Strauss and/or Dr Stern; and/or (b) undervalued the full and complete evidence of Dr Martin, Dr Marriott, Dr Strauss and/or Dr Stern."

44. The respondent accepted that grounds 1 and 2 restated existing grounds and opposed leave to add grounds 3 and 4. The resolution of the application was postponed to the determination of the appeal. In my view, the amendments sought by the appellant should be allowed, for they are necessary to enable the real questions in controversy to be determined and do not operate unfairly against the respondent.

47. Grounds 2 and 3 reflect an argument based upon the recent decision of this Court in Alcoa of Australia Ltd. v. McKenna[3]. That case concerned s.135A(2), which provides:

"(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment - (a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or (b) if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date."

It was held that a court determining an application under s.135A(4)(b) was not to entertain the question whether the applicant could satisfy the criteria set out in either paragraph (a) or paragraph (b), although, if the respondent satisfied the court that the applicant had no prospect of establishing at trial that he met the criteria, the court could refuse the application in the exercise of its discretion not to accede to a futile application.

52. In the present case, counsel for the appellant contended that once the County Court judge concluded that the appellant was suffering from a serious injury, he was bound to grant leave to bring proceedings to recover damages in respect of that injury. Just as the question whether an applicant could meet the criteria in sub-s.(2) was only relevant if the applicant's prospects of doing so at trial were hopeless, so the question whether an applicant could establish that his injury arose out of or in the course of his employment in the period limited by ss.4(1) and 135A(1) would only affect the application if it was clear that the applicant must fail at trial. Counsel said that in the present case, it was by no means clear that the appellant could not establish at trial that his injury arose out of or in the course of his employment in the period between the appointed day and 12 November 1997. The judge who heard the application went no further than saying that the appellant had not discharged the onus he bore in proving that his injury arose during the period.

55. It is necessary to determine what is comprehended by the term "the injury" in s.135A(4). On the appellant's construction, the court must assess only the seriousness of the injury nominated by the applicant unless it is clear that it did not arise from employment in the period from the appointed day to 12 November 1997. In my opinion, the court's inquiry under sub-s.(4)(b) is not so limited. It is not sufficient for an applicant for leave to demonstrate that he has sustained a "serious injury" within the meaning of sub-s.(19), leaving it to trial to relate the injury to his employment during the relevant period. An applicant must also demonstrate that the injury is a compensable injury to which s.135A applies, that is, a compensable injury[4] which arose out of or in the course of employment between the appointed day and 12 November 1997. Section 4(1) requires the injury to occur after the appointed day and to be attributable, at least in part, to employment after that date. I am inclined to think that s.135A(1) requires the employment giving rise to the injury to occur before 12 November 1997. In my view the presence of the phrase "or due to the nature of" makes it difficult to read the date as one attaching to the injury.

58. Alcoa decided no more than that an applicant for leave need not establish before the trial of his proceeding for damages that "the injury" referred to in sub-s.(4)(b) was an injury described in either paragraph (a) or paragraph (b) of sub-s.(2). The limitations as to time contained in ss.4 and 135A(1), on the other hand, are the cornerstone of the regime regulating actions for damages created by the provisions of s.135A of the Act. An applicant for leave must identify an injury to which s.135A(4)(b) applies.[5] Such an injury is one arising out of or in the course of, or due to the nature of, employment in the period from the appointed day to 12 November 1997. The temporal limits prescribed by paragraphs (a) and (b) of sub-s.(2), on the other hand, do not mark out the boundaries of the regime created by the provisions of s.135A.

61. Actions for damages for injuries arising out of or in the course of employment at particular times are subject to different rules. Actions for damages for injuries arising from employment before the appointed day are governed by common law rules. Actions for damages for injuries arising from employment between the appointed day and 12 November 1997 are governed by the provisions of s.135A. Actions for damages for injuries arising from employment between 12 November 1997 and 20 October 1999 are regulated by the provisions of s.134A. Actions for damages for injuries arising from employment after 20 October 1999 must comply with the provisions of s.134AB, which sets out an elaborate system of medical assessments and exchange of medical reports and offers of settlement. In my opinion, an applicant for leave pursuant to s.135A is required to establish that he sustained an injury to which the provisions of the section, not those of another regime, apply.

64. It was common ground between the parties that an applicant will be entitled to a grant of leave pursuant to s.135A(4)(b) if the applicant establishes that he or she sustained an injury which arose out of or in the course of or due to the nature of his or her employment, that the injury occurred after the appointed day and did not arise solely from employment before the appointed day, that the employment which gave rise to the injury or in the course of which or due to the nature of which the injury occurred took place before 12 November 1997, and that the injury satisfies the definition of "serious injury" in sub-s.(19).[6] The last element, the seriousness of the injury, is to be determined as at the date upon which the application for leave is determined.

67. In the present case, the judge who heard the application appears to have decided that the applicant had not established that he had sustained a serious injury in the period from the appointed day to 12 November 1997. His Honour said:

"The plaintiff therefore undertakes the burden of proving on the balance of probabilities, that due in some way to his work, between 1 September 1985 and 12 November 1997, he suffered a post-traumatic stress disorder of such a kind or degree that it deserved to be classed as a `severe long-term mental or severe long-term behavioural disturbance or disorder'.... The issue between the parties is that the plaintiff has not shown that he suffered a severe post-traumatic stress disorder, as a result of his work, between 1 September 1985 and 12 November 1997 ... ."

These statements are somewhat ambiguous. His Honour's concluding words, however, are clear. He said:

"In the end, I find myself unable to make a finding that the plaintiff has discharged his onus of proof that the post-traumatic stress disorder in its severe state arose after 1 September 1985 but before 12 November 1997."

73. 19 The appellant was not obliged to demonstrate that the severe post-traumatic stress disorder he was acknowledged to have sustained arose in the relevant period, but only that the injury occurred after the appointed day, did not arise out of or in the course of employment solely before that date and was not caused by employment after 12 November 1997. His Honour would appear to have addressed the wrong question and thus made an error which vitiated his decision.

76. I do not consider that we are in a position to answer the correct question. While the identification of the relevant employment is straightforward, for it was the employment in which the appellant was engaged when each traumatic event occurred, and both parties agree that the injury is serious, the relationship between each event and the appellant's disorder depends upon an evaluation of the evidence given by the appellant and the doctors who treated or examined him in order to determine when the injury arose and whether it was due to employment in the relevant period. The appellant and two of the doctors gave oral evidence and were cross-examined in the course of the application. The resolution of the matter depends upon an evaluation of their evidence as well as written reports by other doctors.

79. It may well be that leave to appeal is required from a refusal of leave to proceed pursuant to s.135A of the Act.[7] I would grant leave to appeal nunc pro tunc if leave is necessary and, for the reasons I have stated, I would allow the appeal and remit the proceeding to the County Court.

84. I have had the advantage of reading the draft judgment of Buchanan, J.A. and agree that, for the reasons he gives, the application should be disposed of as he proposes. One of the arguments pressed for the applicant was that he was not required to establish as part of his case under s.135A(4)(b) of the Act that the injury

arose during the period prescribed by ss.4(1) and 135A(1). That was a matter to be established at trial, said his counsel. In support of that submission counsel relied on Alcoa of Australia Ltd. v. McKenna[8]. But as Buchanan, J.A. pointed out in his reasons, Alcoa only decided that in determining an application under s.135A(4)(b) of the Act a court is not concerned, in the first instance, with deciding whether the criterion set out in paragraph (a) or paragraph (b) of sub-s.(2) has been satisfied unless, on the respondent's application, it considers that the applicant has no prospect of succeeding on that issue at trial, in which case the court would ordinarily refuse the application in the exercise of its discretion not to accede to futile applications.

88. It seems to me that the primary task of an applicant for leave under sub-s.(4)(b) is to establish, on the balance of probabilities, that the workplace injury is a "serious injury" as defined. This involves demonstrating two things. One, that the injury is one to which the Act applies and two, that it is a "serious injury". There would be no point to proceeding to determine the second matter if the injury does not fall within the Act. Hence, one of the matters that such an applicant must establish is that the employment related injury arose within the period contemplated by ss.4(1) and 135A(1) of the Act, in this case, between the appointed day and 12 November 1997. As Buchanan, J.A. said, it is the limitations as to time contained in those provisions that form the cornerstone of the regime that regulates the entitlement of the injured worker to bring an action for damages in respect of such an injury. Consequently, that the injury arose during the prescribed period has to be made out at the stage when leave is sought under sub-s.(4)(b).

91. But the nature of the relevant enquiry under s.135A(2) of the Act, and one with which Alcoa was concerned, is materially different from that which is undertaken for the purposes of sub-s.(4)(b) as described earlier. Essentially, sub-s.(2) permits recovery of damages in respect of certain workplace injuries that have arisen after the prescribed date, or where the incapacity arising from them only becomes known thereafter. Thus, the purpose of the inquiry whether the workplace injury arose before 1 December 1992 is to determine, not so much whether the Act applies to the (serious) injury, but rather whether the injury falls within the permissive operation of sub-s.(2), allowing the worker to recover damages in respect of it. As I have mentioned, Alcoa decides that this enquiry is more appropriate for trial. The other condition set out in sub-s.(2), namely, that the injury be a "serious injury", is ordinarily resolved at an earlier stage, namely, in the course of the application for leave under s.135A(4)(b).

94. In the context of this case, therefore, it was for the applicant to establish in the course of his application for leave under s.135A(4)(b) that the injury is one to which the Act applies, more specifically, that it arose within the prescribed period. As Buchanan, J.A. has shown, the judge who heard the application addressed the wrong question, and thus made an error which vitiated his decision. In the circumstances, as I have said, I agree with his Honour's proposed disposition of the matter before us.

[1] [2003] VSCA 182.

[2] Section 5 provides that "appointed day" means 4 o'clock in the afternoon of the day before the proclaimed day and "proclaimed day" means the day fixed under s.2(2). The day fixed under s.2(2) is the day on which Part 7 of the Act was proclaimed to come into operation. That day was 1 September 1985.

[3] [2003] VSCA 182.

[4] That is, an injury for which compensation is payable by reason of s.82 or s.86 of the Act, having regard to the definition of "injury" in s.5 and the matters listed in s.5(1B).

[5] Cf. Dalton v. Dandenong Scaffolding Hire Co. Pty. Ltd. [2003] VSCA 183 at [38], [39] and [44] per Ashley, A.J.A.

[6] The parties' assumption skirts around the problem created by the fact that s.135A restricts actions for damages for injuries "arising out of or in the course of, or due to the nature of employment before 12 November 1997", while s.4(1) provides that the Act applies to an injury "arising out of or in the course of employment on or after the appointed day". The phrase "due to the nature of" is found in s.86, which confers an entitlement to compensation for industrial diseases, while the expression "arising out of or in the course of" comes from s.82, which provides for an entitlement to compensation for injuries. The distinction comes from the old workers' compensation legislation. Section 135A(2) employs the combined phrase "arising out of or in the course of, or due to the nature of". The omission from s.4(1) is no doubt a slip. It is not to be supposed that the Act applies only to injuries and not to diseases.

[7] See Cowden v. Transport Accident Commission [2003] VSCA 198.

[8] [2003] V.S.C.A. 182.