Reported Decision : (2002) 23 NSWCCR 376 Compensation Court of New South Wales CITATION : Coleman v Denison Hydraulics Australia Pty Ltd [2002] NSWCC 14 revised - 3/11/2003 Gregory Coleman PARTIES : v Denison Hydraulics Australia Pty Ltd MATTER NUMBER(S) : 53168 of 2001 JUDGMENT OF: Neilson J at 1 :- Amendment to application for determination after 1 April 2002. Effect of Workers Compensation General Regulation 1995 reg 93. Regulation deals with "claims" for compensation CATCHWORDS: not the events alleged to give rise to the claims. Meaning of "injury" in definition of "related claims" in Workplace Injury Management and Workers Compensation Act 1998 s 250. Same as "injury" as defined in s 4. "Personal injury" refers to the pathology or medical condition of the worker not to the receipt of the injury - see WCA 1987 s 9. Application may be amended to add additional employers as respondents where the allegation relates to an "existing claim" as defined in s 250 of 1998 Act. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/04/02 EX TEMPORE JUDGMENT DATE : 04/16/2002 FOR APPLICANT: Mr Leung, solicitor of Turner Freeman, appeared for the applicant. FOR RESPONDENT: Ms O'Shannassy, clerk of Bartier Perry, appeared for the respondent. LEGAL REPRESENTATIVES: Mr Adra, clerk of GIO Workers Compensation (NSW) Ltd appeared for the proposed second respondent. Mr J H Lichtenberger instructed by Hicksons appeared for the proposed third respondent. No appearance for the proposed fourth respondent. JUDGMENT: 1. This is a motion seeking to join additional respondents. 2. The application for determination was filed on 6 November 2001 nominating Denison Hydraulics Aust Pty Ltd as respondent. The applicant relied on an event occurring on 20 June 1991 when he was lifting an hydraulic pump weighing 60 kg and was turning whilst lifting and felt a sharp pain in his back. The applicant's claim in the initiating process is for 20 per cent impairment of the back, 15 per cent permanent loss of efficient use of the right leg at or above the knee and $30,000 for pain and suffering pursuant to s 67. 3. The motion filed on 22 March 2002 seeks leave to join Binskie Services Company Pty Ltd as second respondent and the Society of St Vincent de Paul which has probably been incorrectly named as third respondent, and Australian Winch & Haulage Pty Ltd as fourth respondent. A proposed amended application for determination is annexed to the notice of motion. 4. Against each of the current respondent and the proposed second, third and fourth respondents, the applicant claims lump sums for 20 per cent impairment of his back, 25 per cent loss of efficient use of his right leg at or above the knee, 25 per cent permanent loss of sexual organs and $40,000 for pain and suffering pursuant to s 67. As against the current respondent, that is Denison Hydraulics Aust Pty Ltd, the worker relies on the event of 20 June 1991 and "nature and conditions of employment" from July 1989 to 3 December 1992. 5. Against the proposed second respondent, the applicant relies upon the "nature and conditions of employment" from 26 June 1994 to 18 January 1995. 6. As against the proposed third respondent, the applicant relies on the "nature and conditions of employment" from 9 January 1995 to an unspecified date in 1998. 7. As against the proposed fourth respondent, the applicant relies upon the "nature and conditions of employment" from an unspecified date in 1998 "to date and continuing". 8. It would appear that the worker is still relying upon the frank event of 20 June 1991 and proposes to add each person who has employed him since that time alleging "nature and conditions of employment". 9. As I have pointed out in numerous judgments, the Court of Appeal has categorised an allegation of "nature and conditions of employment" as "quaint" and Judge Burke and I have constantly said, described it as "cant".The Act talks of injuries and diseases, it does not speak of "nature and conditions". However, the argument remains as to whether the type of work performed by a person over a number of years represents repeated micro traumata or merely describes a disease process. I am personally in the second camp. I know others take a different view. However, one often sees that there is no material evidence to relate the worker's medical condition with the type of work he has performed over a number of years and it is also common to see both legal practitioners and medical practitioners confusing pathology with symptomatology. 10. As Sir Victor Windeyer has said in the High Court of Australia "the Court is concerned with Genesis rather than Revelation", or as the senior puisne judge, his Honour Judge O'Meally, has glossed that observation, the Court is concerned with pathology rather than symptomatology. Performing arduous work may cause a pathological condition, but it may also merely demonstrate the underlying pathological condition caused by a frank injury and the fact that the work causes symptoms indicates that the worker is really unfit to perform the work which is causing the symptoms. 11. However, those matters are not for immediate determination. The proposed second respondent appears unconditionally. The proposed third respondent, The Society of St Vincent de Paul, in respect of its insurer Allianz Australia Workers Compensation (NSW) Ltd, the insurer of the proposed third respondent between 30 June 1996 and 30 June 1997, appears conditionally to protest the jurisdiction of the Court to grant the relief claimed. The proposed fourth respondent has not appeared. 12. Mr Lichtenberger for The Society of St Vincent de Paul in the interests of Allianz has raised two objections. The first objection is that the claim for compensation was not duly made until 5 March 2002 and that pursuant to Workers Compensation General Regulation 1995, reg 88 modifying the application of s 102 of the Workplace Injury Management and Workers Compensation Act 1998, two months must elapse from 5 March 2002 until proceedings can be commenced in this Court and that two months has obviously not yet expired. 13. The proposed second respondent does not take any issue on that point. However, the real argument which has agitated the Court this day is whether, assuming that reg 88 had been complied with, the Court can grant leave to join additional respondents. 14. Reg 93 provides as follows: Transfer of existing claims (1) On and from 1 April 2002, each existing claim in respect of which there is no pending application for determination by the Compensation Court is to be treated as a new claim for the purposes of the Workers Compensation Acts (under clause 5 of Part 18C of Schedule 6 of the 1987 Act). (2) An existing claim in respect of which an application for determination by the Compensation Court is pending at 1 April 2002 is to be treated as a new claim for the purposes of the Workers Compensation Acts (under clause C5 of Part 18C of Schedule 6 to the 1987 Act): (a) on the day on which the Compensation Court makes a final award or order determining the claim (including a consent award or order), or (b) on the day on which the claim is resolved by an agreement between the parties registered under section 66A of the 1987 Act whichever occurs first. (3) Despite section 105 of the 1998 Act, the Compensation Court has jurisdiction to examine, agree and determine the following matters with respect to existing claims that are treated as new claims under this clause: (a) reconsideration of a matter to amend a judgment, award or order within 28 days after the judgment, award or order was made or given, (b) reconsideration of a matter that has been remitted to the Compensation Court for reconsideration by the Court of Appeal, (c) matters arising under s 112 (Costs) of the 1998 Act, if an application for an order with respect to costs is made within 28 days after the day on which the final award or order determining the claim was made, (d) the making of orders as to matters ancillary to proceedings before the Court (for example, matters such as the return of exhibits or enforcement of awards). 15. It has not been argued that the Regulation is ultra vires the Workers Compensation Act 1987 Sch 6 Pt 18C cl 5 which enables Regulations to be made to transfer "a class or classes of existing claims" to be treated as new claims. An argument might exist that a general regulation transferring all claims is not a regulation transferring a class or classes of existing claims. 16. It is clear from reg 85 that "existing claims" and "new claims" have the same meaning as is provided in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 17. In s 250 of the 1998 Act, existing claim is defined thus: Existing claim means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section). The same section contains this definition: Related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation. 18. Mr Lichtenberger for the proposed third respondent in the interests of Allianz, argues that the word "injury" in the definition of related claims ought be given the primary meaning assigned to it in s 4 of the 1998 Act. I agree with that submission. However, the question is what does the word "injury" mean? Does it mean a medical condition, that is a pathological change or does it mean an event which causes the pathological change? 19. It must be remembered that the original formulation of the Workers Compensation Acts was "personal injury by accident arising out of and in the course of the employment". One had to have "an accident" which resulted in personal injury. When the words "by accident" were removed, it became less clear whether the word "injury" meant the injurious event or merely the medical condition. This is really the same sort of argument that arose in Bird v Australian Iron & Steel Pty Ltd [1979] 53 WCR 227 where his Honour Judge Gibson had to deal within s 7(3) par (c) which was as follows: No compensation shall be payable on account of any injury to or death of a worker caused by an intentional self-inflicted injury. 20. His Honour gave "injury" where first occurring its normal statutory definition and pointed out that "injury" where secondly occurring was used in a gerundial sense of injuring or wounding. In my view, here the word is used in its primary sense as defined in s 4 of the 1988 Act. A "personal injury" is a change in the bodily status of a person whom we refer to as the injured person. It is not an event as such, but rather the medical condition. It is to be recalled that entitling provision is Workers Compensation Act 1987 section 9 which provides as follows: (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable where the injury was received by the worker at or away from the worker's place of employment. 21. The entitling event is the receipt of the injury, that is, the receipt of the pathological change in the person's mind or body. Reading "injury" in that way, one can see firstly, that the worker was alleging an injury to his back with a consequential affectation of his right leg in the initiating process on 6 November 2001. In the initiating process, the worker was relying only upon one event, that of 20 June 1991. The proposed amended application for determination annexed to the motion that is currently before me, adds an increased claim for the loss of efficient use of the right leg at or above the knee by increasing the percentage claimed from 15 per cent to 25 per cent. It also adds an additional claim for 25 per cent permanent loss of sexual organs and it has an increased claim in respect of pain and suffering, increasing the amount from $30,000 to $40,000. 22. It can be seen therefore that the increased claim for loss of efficient use of the leg and the increased claim under s 67 are related claims and the additional claim for the loss of sexual organs is also a related claim. The worker is now alleging, in addition to the event of 20 June 1991, work performed by him from July 1989 up until the present time against a number of persons who have employed him since July 1989. He is not alleging additional pathology, rather he is merely alleging that that pathology was caused by other events in the alternative to the originally pleaded event. It is an existing claim with related claims grounded on alternative allegations as to the receipt of the original medical condition. In my view, these are related claims and can be pleaded provided that the pleading is otherwise in order. 23. If I were to accede to Mr Lichtenberger's argument, the scheme of the transitional provisions would operate most capriciously. For example, pressed to its logical extent, the worker could not amend an application for determination even against the currently named respondent to allege an alternative date of injury or a further event in the named respondent's employment. Here the worker still relies upon the event of 20 June 1991, but additionally adds the type of work performed for the named respondent between July 1989 and 3 December 1992. That is an additional allegation as to the receipt of the injury. 24. If Mr Lichtenberger's argument were correct, the worker could not allege that additional matter against the currently named respondent, but it would have to present that claim in another place and therefore have to have a litigated claim in this Court as well as a quasi-litigious claim in another place. That is hardly consonant with good policy, to have two matters running in two different places in respect of the same claim. 25. Likewise, the worker's claims, if they could not be brought against the proposed additional respondents in this Court, would have to be pursued in a quasi-litigious fashion in another place and in such circumstances, no issue estoppel would arise because the parties in the two places would be different and that could create inconsistent determinations which might disadvantage the worker or alternatively disadvantage one of the employers. It would be quite capricious. 26. The interpretation which I have made of both the definition of "existing claim" and "related claims" in s 250 of the 1998 Act and of reg 93 enables all allegations concerning the receipt of an injury to be ventilated in the one place at the one time and is consonant with good policy and in my view, consonant with the spirit of the transitional provisions in the 1998 Act. 27. Accordingly I hold that I have jurisdiction to grant the relief claimed. However, it is clear that the third respondent cannot be joined at the current time because the worker has not yet complied with s 102 of the 1998 Act as notified by reg 88. 28. Furthermore, I would not permit the applicant to rely on the allegation as to the injurious event against the fourth respondent, where it is alleged that the worker has an ongoing injury. The period relied upon must be finite and could obviously not extend beyond the date on which the claim for compensation was duly made. Therefore, the proposed particulars against the fourth respondent need to be repleaded. 29. I therefore make the following orders: (a) I grant leave to join Binskie Services Company Pty Ltd as second respondent. (b) I grant leave to join Australian Winch & Haulage Pty Ltd as third respondent. (c) I order the applicant to file and serve an amended application for determination within 28 days consonant with the reasons for judgment which I have just given. (d) I refuse leave to join The Society of St Vincent de Paul at this time. (e) I grant leave to the applicant to reapply to join The Society of St Vincent de Paul as a respondent on or after 5 May 2002. 30. I would point out that it is highly likely that the correct legal title of that employer is The Trustees of the Society of St Vincent de Paul. 31. The argument which has taken the Court's time today was raised by The Society of St Vincent de Paul on its conditional appearance. The Society has been successful on one issue, that is a failure to comply with s 102 as modified by reg 88, it has been unsuccessful on the jurisdictional issue. 32. In the circumstances, and bearing in mind that if the worker had complied with s 102 as modified by reg 88, The Society of St Vincent de Paul could not have been here today and the argument probably would not have arisen, in the exercise of discretion, each party will pay his or its own costs of the motion. Mr Leung, solicitor of Turner Freeman appeared for the applicant. Ms O'Shannassy, clerk of Bartier Perry, appeared for the respondent. Mr Adra, clerk of GIO Workers Compensation (NSW) Ltd, appeared for the proposed second respondent. Mr J H Lichtenberger instructed by Hicksons appeared for the proposed third respondent. No appearance for the proposed fourth respondent. 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