BRENNAN TAYLOR v STATE OF NEW SOUTH WALES [1999] NSWCA 159

Reported Decision : 46 NSWLR 322

New South Wales Court of Appeal CITATION : BRENNAN TAYLOR v STATE OF NEW SOUTH WALES [1999] NSWCA 159 FILE NUMBER(S) : CA 40646/97 HEARING DATE(S) : 9 March 1999 JUDGMENT DATE : 2 June 1999

PARTIES : BRENNAN TAYLOR STATE OF NEW SOUTH WALES JUDGMENT OF : Handley JA at 1; Giles JA at 12; Sheppard AJA at 61

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 21068/95 LOWER COURT JUDICIAL OFFICER : Murray AJ

COUNSEL : Appellant - A J Leslie QC & J O Anderson Respondent - L King SC & R A Stanton SOLICITORS : Appellant - Steve Masselos & Co Respondent - P W Turk & Associates CATCHWORDS : WORKERS COMPENSATION - election to claim permanent loss compensation - revocation with leave - whether at time of election there was no reasonable cause to believe that the further deterioration in medical condition would occur - nature of belief - whether possibility of deterioration sufficient to negate belief - Francis v Dunlop (NSW CA, 16 December 1998, considered). DECISION : (By majority) Appeal allowed, the orders of Murray AJ be set aside, and the Master's grant of leave to revoke the election be confirmed. The respondent should pay the appellant's costs of the appeal to Murray AJ and of this appeal.

33 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40646/97 CL 21068/95

HANDLEY JA GILES JA SHEPPARD AJA

Wednesday 2 June 1999

BRENNAN TAYLOR v STATE OF NEW SOUTH WALES

JUDGMENT

1 HANDLEY JA: In this appeal, by leave, from a decision of Murray AJ, the Court is concerned with the meaning and application of s 151 A (5)(c) of the Workers Compensation Act 1987 as amended. The appellant, an injured worker, who elected to accept permanent loss compensation applied for leave to revoke his election. The Court has a discretion to grant leave if certain conditions are fulfilled. These include that in sub s 5(c): "At the time of the election there was no reasonable cause to believe that the further deterioration would occur". 2 I adopt the statement of the facts and the reasons of Giles JA other than his conclusion that the requirements of sub s 5 (c) were satisfied in this case. 3 This paragraph uses ordinary English words but its meaning has already given rise to difficulty, this Court being divided in Francis v Dunlop (unrep, 16 December 1998) with myself in dissent. Counsel agreed that the majority judgments in that case lacked a common ratio and the Court as presently constituted is therefore free to re-examine the question. I find myself again in the minority and have considered whether I should acquiesce in the majority opinion, but have decided to maintain my dissent. 4 Paragraph (c) requires the worker to prove a negative. I agree with Sheppard AJA that the test is objective and impersonal, and the answer therefore does not depend just on the personal knowledge or belief of the worker. However he is the person making the election and in this context it seems to me the question must be answered in the light of the information known or reasonably available to the worker and his legal and medical advisers. 5 If the worker's doctors had cause to believe that the further deterioration would occur but the worker made an election without, personally or through his solicitors, asking the appropriate questions of his doctors, the requirements of para (c), in my view, would not be satisfied. On the other hand, the knowledge of doctors qualified for the employer, which was not communicated to the worker or his advisers would not be relevant, nor would be the opinions of those who had never been asked to consider the question. 6 I remain of the opinion expressed in Francis v Dunlop that the Court should not pose the test under para (c) by a paraphrase of the statutory language, and in particular should not pose the test by a paraphrase in positive terms. 7 A medical prognosis can seldom be made with precision. The question under para (c) relates to "the further deterioration". What has occurred might be a deterioration of X percent. Is the paragraph satisfied where further deterioration was expected but only some percentage less than X? I am unable to accept that Parliament intended that this paragraph could be satisfied merely because the further deterioration was greater than expected if what was expected would have been material anyway. If that was the case, it would be relatively easy for a worker to establish that the condition in par (c) had been satisfied, whereas the intention discernible from the words "no reasonable cause to believe" is that this was intended to be quite difficult. 8 In my opinion the requirement inherent in the words "there was no reasonable cause to believe" that something would occur is not satisfied where there was some reasonable cause to believe that it would or might occur. The difficulty of forecasting the future of injured persons is well known, and long before Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 the courts had rejected the view that they should award or refuse damages for future contingencies on the basis of a finding of probability greater or less than 50 percent. Damages are awarded for future events that might occur based on the degree of probability assessed by the Court. 9 Where, at the date of the election, there was reasonable cause to believe that the further deterioration might occur, it cannot be said that there was no reasonable cause to believe that it would occur. A 20 percent chance of something occurring can, in my view, be described both as a chance that it would occur and as a chance that it might occur. In such a case it cannot be said, in my view, that there was no reasonable cause to believe that it would occur. 10 On the medical evidence available to the worker and his advisers at the date of his election and his own awareness of his deteriorating condition he failed, in my judgment, to establish that there was no reasonable cause to believe that the further deterioration would occur. 11 In my opinion therefore the appeal should be dismissed with costs. 12 GILES JA: The appellant was employed as a cleaner at the Blacktown Girls High School. In October 1992 he injured his back lifting garbage bins. In August 1993 he applied for permanent loss compensation under the Workers Compensation Act 1987 (the Act). In September 1994 his claim was settled, and in November 1994 he banked the cheque received pursuant to the settlement. He thereby elected to claim the permanent loss compensation and ceased to be entitled to recover damages in respect of the injury, see s 151A(2) and (3) of the Act. 13 In October 1995 the appellant commenced these proceedings claiming damages in respect of the injury. The election stood in his way, and was irrevocable except with the leave of the court, see s 151A(4) of the Act; by s 151A(5), set out in full later in these reasons, if certain conditions were satisfied then with the leave of the court he could "revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury". The respondent's defence filed in the proceedings in January 1996 included that the appellant had not obtained leave and that the proceedings were not maintainable by him. 14 In April 1997 the appellant applied by notice of motion in the proceedings for leave and for an order that the proceedings "be deemed to have been validly commenced" pursuant to the leave. On 3 June 1997 Master Greenwood granted leave and, apparently because it was considered that the leave could not relate back to validate the commencement of the proceedings, also granted leave to commence fresh proceedings. The last mentioned leave was necessary because the three year time limit for commencement of court proceedings for damages in respect of the appellant's injury had expired in October 1995, and it must have been granted pursuant to s 151D(2) of the Act. We were informed that the fresh proceedings were duly commenced. 15 The respondent appealed from the decision of the Master. Its notice of appeal challenged the grant of leave pursuant to s 151A(5) for errors of fact and law and challenged the grant of leave pursuant to s 151D(2) for denial of procedural fairness. On 18 September 1997 Murray AJ allowed the appeal in relation to the grant of leave pursuant to s 151A(5), whereby the appeal in relation to the grant of leave pursuant to s 151D(2) (if persisted in - it is not clear that it was) was of no consequence. His Honour ordered that the appellant's notice of motion be dismissed and that the proceedings be struck out. 16 Having been granted leave to appeal on 1 December 1997, the appellant then appealed to this Court. The appeal did not raise the grant of leave pursuant to s 151D(2), and it was accepted in this Court that, if the leave pursuant to s 151A(5) granted by the Master were reinstated, the time limit for commencement of the fresh proceedings had been overcome. 17 Section 151A(5) reads: "If: