Australian Telecommunications Corporation v Treloar

[1991] HCATrans 120

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0 of 1991

B e t w e e n -

AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

Applicant

and

KEITH ROBERT TRELOAR

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 10.22 AM

Copyright in the High Court of Australia

Telecommunications 1 10/5/91

MR D.M.J. BENNETT, OC:  May it please the Court, I appear

with my learned friend, MR J.P. CURTIS, for the

applicant. (instructed by Sparke Helmore &

Withycombe)

MR J.A. McCARTHY, QC:  May it please Your Honours, I appear

with my learned friend, MR C. ARMITAGE, for the

respondent. (instructed by McClellands)

MR BENNETT:  I hand up four copies of an outline of

submissions.

MASON CJ: Paragraph 1 is a bit of a long bow, is it not?

MR BENNETT: Well, Your Honour, it is a question of applying

the doctrine that the court has laid down in that
case to the area of workers' compensation which the

Federal Court seems to have done before that

decision in two rather different ways.

Your Honour, this is an unusual case in one

respect in that one really does not need to read

more than one sentence of the appeal book to see

what the case is about and that is the sentence at

page 11, lines 26 to 29, because that sentence,
beginning with the word "However", which we have
always submitted is wrong, is one which would cause

a dramatic change in the administration of the law

in this area. Mr Justice Davies so held and the

Full Court did not.

GAUDRON J: But you read that sentence one way as suggesting

there really is no significant causal connection.

They say there is a causal connection; it is

proved; it is small _but there is a causal

connection.	You read it to mean there is none at
all.

MR BENNETT:  I do not go that far, Your Honour. The phrase

is "however small". Even if it is de minimis,

however small that is sufficient, and we

respectfully submit it is important that that

suggestion be laid to rest.

The way the Full Court dealt with it was

certainly to explain the meaning of the sentence.

That appears at page 40, line 15.

MASON CJ: But from our point of view, is not that the

important sentence? After all, that is how the

relevant principle and criterion will be understood

following the Full Court judgment.

MR BENNETT:  Your Honour, the sentence beginning at line 15

does not really answer the question. It states

what the question is. It says:

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The use of the phrase "however small" does

not, in our opinion indicate that the Tribunal
was ignoring or failing to appreciate that a

relevant causal connection was required -

but one can still cite the case as authority for

the proposition that one can have a causal

connection, however small. And then:

We do not think that it did more than indicate

that the Tribunal appreciated that once it was

established to that standard -

it does not say what standard - well, "that

standard" just means the balance of probabilities -

that there was a causal connection -

ex hypothesi, however small -

between the relevant feature of the

appellant's employment and the aggravation or

acceleration of his condition .... became

entitled to compensation ..... even though the

degree of such contribution could properly be

described as only small.

"Only small" is perhaps not as bad as "however

small" but it leaves the proposition there. It
says however small it is, it does not matter, as

long as there is some causal connection.

Your Honours, the reason we tie it to March v

Stramare is this, that it is hard to imagine concepts such as "however small" in the context of

a strict "but for" test. But if one is applying a

common sense test with some element of value

judgment as to what is and is not causation, then,

in my respectful submission, the first thing to go

is cases where the causal connection is "however

small" because then common sense and value judgment
would say, "This is not a case of causation."	The
present case illustrates that very well.	It is a
man who is a Telecom linesman.	He gets some sun in
the course of his employment.	He has had sun, no

doubt, throughout his life with a childhood in the

country and so on, and the evidence of the doctor

which led to the finding was, "Well, it is possible

that he could have got some exposure to sunlight

which had an effect on it and which contributed,

although I think it would have been small at that

stage of his life."

DAWSON J:  Mr Bennett, there is a certain amount of

casuistry about all of this but a cause is a cause,

however small, is it not?

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MR BENNETT: Well, Your Honour, we submit not.

Suppose - - -

DAWSON J: Well, all that means is you can have a small

cause.

MR BENNETT: Well, Your Honour, if we take the very

situation: suppose a worker in the course of his

employment is exposed to one day's sunlight and

suppose all his life he has been sunbathing on

weekends, spent his childhood largely in the sun and has had other positions where he has been in

the sun, and a doctor says, "Well, every piece of

sunlight helps and no doubt that one day in the

sunlight produced some minimal contribution - - -

DAWSON J: Well then, in that situation you have to say,

"Well, look, it's a possibility. Now, on the

balance of probabilities, was it a cause or was it

not?" But if it is a cause, however small, it is a

cause.

MR BENNETT:  Your Honour, the difficulty with that is that

when the case is cited as authority in the future,

the evidence which is set out in the judgments does

not suggest that it is that type of case. Cases

are cited by reference to their facts. The

evidence of the doctor was very short too on which

the finding was made. If I can just show

Your Honours that. That is at pages 10 to 11. It

is one passage in the evidence - it is the only

passage which was relied on.	It is the evidence of
Professor McCarthy.	I will not read the whole of

the question but the answer starts at line 30 on

page 10:

Again we get back to your using the exposure

to sunlight as being the triggering mechanism

for his melanoma. I am saying there is very

little evidence that is the case, that it was

actually triggered by that exposure in some

way. He is like every other Australian: you

add it all up together. He would have got,

say, if you like 20 per cent of his solar
exposure during the work period and 80 per

cent in other times, but, up to the age of 20,

we all get a huge dose. I have had a BCC and a

keratosis. I am an indoor worker. So we do

have this degree of exposure. It is a

question of whether that additional exposure

is in any way related to melanoma. I cannot

answer, but do not dissent from the fact he

had additional exposure during that time. He

certainly did, and, if in the logic of it, if

solar exposure caused his melanoma, then you

would have to say that there is a contributory

Telecommunications 4 10/5/91

factor during those 17 years, but he certainly

got solar exposure during that time.

And then this man, he being a man of Celtic

descent -

it is more likely.

And taking those extra factors into account,

it does seem likely, does it not, that the

exposure to sunlight over 15 years in the

course of his occupation was a contributing

factor although perhaps in your view a small

one?---Yes.

MASON CJ:  Now, they are the very words of the statutory
provision, are they not, "contributing factor"?

MR BENNETT:  Yes, Your Honour. The statute is set out

earlier in the judgment.

MASON CJ: It is at page 27, is it not?

MR BENNETT:  Yes:

was a contributing factor to the -

yes.

MASON CJ: Yes. So, it is not expressed in terms of cause,

it is expressed in those words, "contributing

factor".

MR BENNETT:  Yes, and the question is if a contributing

factor, however small, is that sufficient?

MASON CJ: Yes.

MR BENNETT:  The only other matter I have referred to in the

submissions is that in Boyd's case in the Full

Federal Court, which I can give Your Honours if

Your Honours wish, Their Honours reached a similar

conclusion to that which Your Honours reached in

March in relation to this section, whereas, in this

case, we would submit, they really did not because

they did not apply a common sense or value judgment

test.

Although it is a repealed Act, it is an

important question because of the hundreds and

possibly thousands of cases still to be decided

under it.

I have not dealt with the fact that we are two

days out of time but if Your Honours wish to hear

me on that I can make submissions on that.

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For those reasons, it is my submission that

the matter is of importance and the appeal should be

allowed.

MASON CJ:  Thank you, Mr Bennett. We need not trouble you,

Mr McCarthy.

The Court is not persuaded that there is

sufficient doubt attending the decision of the Full

Court of the Federal Court to justify the grant of

special leave to appeal.	The application is
therefore refused.

MR BENNETT: If the Court pleases.

MR McCARTHY:	Your Honours, I make an application for costs?
MASON CJ:	You do not resist that, Mr Bennett?
MR BENNETT:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 10.32 AM THE MATTER WAS ADJOURNED SINE DIE

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