Cole v P & O Ports Ltd
[2002] WASCA 157
•13 JUNE 2002
COLE -v- P & O PORTS LTD [2002] WASCA 157
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 157 | |
| THE FULL COURT (WA) | 13/06/2002 | ||
| Case No: | CIV:1573/2002 | 24 MAY 2002 | |
| Coram: | WALLWORK J MURRAY J WHEELER J | 24/05/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL SHAUN COLE P & O PORTS LTD |
Catchwords: | Workers' compensation Worker suffered knee injury at work Therapy included cycling Worker fell off bicycle and injured shoulder Whether resulting incapacity caused by disability to knee |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 18, sch 1 |
Case References: | Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Korragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Lindeman Ltd v Colvin (1946) 74 CLR 313 March v Stramare Pty Ltd (1991) 171 CLR 506 Rosmini v Chrysler (1973) 6 SASR 212 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : COLE -v- P & O PORTS LTD [2002] WASCA 157 CORAM : WALLWORK J
- MURRAY J
WHEELER J
- Applicant
AND
P & O PORTS LTD
Respondent
Catchwords:
Workers' compensation - Worker suffered knee injury at work - Therapy included cycling - Worker fell off bicycle and injured shoulder - Whether resulting incapacity caused by disability to knee
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 18, sch 1
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr L Gandini
Respondent : No appearance
Solicitors:
Applicant : Chapmans Lawyers
Respondent : No appearance
Case(s) referred to in judgment(s):
Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lindeman Ltd v Colvin (1946) 74 CLR 313
March v Stramare Pty Ltd (1991) 171 CLR 506
Rosmini v Chrysler (1973) 6 SASR 212
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Case(s) also cited:
Nil
(Page 3)
1 WALLWORK J: The facts and issues in this matter appear from the reasons for judgment of Murray and Wheeler JJ.
2 As their Honours state, the applicant suffered a knee injury in the course of his employment with the respondent. He was paid workers' compensation whilst he was away from work due to the injury. The treatment for the applicant's knee injury included a course of physiotherapy. Part of the programme recommended to him was bicycle riding.
3 On 19 September 2000 the applicant fell off the bicycle he was riding as part of the recommended exercise programme. He suffered an injury to his right shoulder and was away from work for about two months. A Review Officer dismissed his application for workers' compensation arising from the shoulder injury. On appeal the learned Compensation Magistrate said that there had been no evidence before the Review Officer to suggest that the applicant's knee injury had contributed in any way to the fall in which he injured his shoulder.
4 In Rosmini v Chrysler (1973) 6 SASR 212 at 217 Bray CJ said:
"I think I can only say that this is a question of fact in each case to be decided on broad commonsense lines. Where there is an injury at work and a subsequent incapacity the Tribunal has to ask itself did the latter result from the former: Commonwealth v Butler (1958) 102 CLR 465 per Windeyer J at 480."
5 In the same decision the Chief Justice said at 215 that:
"If an incapacity exists, it is not necessary that the injury should be the sole cause of it. It is sufficient if it is a material contributing cause…"
6 In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Kirby P (as he then was) with the agreement of Sheller JA and Powell JA said at 463:
"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts…what is required is a commonsense evaluation of the causal chain."
7 As Murray and Wheeler JJ have said the question in this case is whether the decision of the learned Magistrate was wrong or attended
(Page 4)
- with sufficient doubt to justify the grant of leave to appeal and in addition that substantial injustice would be done by leaving the decision unreversed - Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 54 - 57.
8 In my view the learned Magistrate was not correct when he said:
"…there was no evidence before the Review Officer to suggest that the applicant's knee injury contributed in any way to the fall in which he injured his shoulder."
9 The applicant was riding his bicycle as treatment for his injured knee. He was injured whilst doing that. If he had been injured by a surgeon treating his knee it would not be said that there was no evidence to suggest that his knee injury had contributed in any way to his later injury. If the applicant had drowned whilst swimming to treat his knee, it would not be said that there was no evidence that the knee injury had contributed in any way to his drowning. These questions were discussed by the Justices of the High Court in Lindeman Ltd v Colvin(1946) 74 CLR 313. See, for example, the words of Lathan CJ at 317, 318, where the Chief Justice said:
"Where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. But not everything that happens during a period when a man is undergoing medical treatment can be regarded as part of the medical treatment so as to be causally connected with the injury for which he is being treated. A man undergoing medical treatment must have meals, and in one sense the eating of food may be described as an integral part of his medical treatment. But if these meals consist of normal food and he happens to choke himself and die, and the choking had nothing to do with his original injury, there would be no evidence to justify a finding that the death resulted from the original injury and so arose out of his employment. In this case the cause of the fracture was quite independent of the original injury. The bone condition of the respondent was not due to or aggravated by or otherwise affected by the original injury (cf. Day v Standard Waygood Ltd (3)). The act of walking was not necessitated by the head injury. Walking is a normal activity of ordinary life, and when the respondent was walking in the hospital grounds he was only resuming his normal life. There was no causal
(Page 5)
- connection between the fracture and the original injury, and accordingly, in my opinion, the Commission did err in law in the decisions which it reached, and the questions in the case should be answered in the affirmative."
10 At 320 Dixon J said:
"The substance of the Commission's finding is that the total incapacity from the broken leg resulted from the head injury. Such a proposition can only be made out by tracing the existence of some of the conditions which were the immediate occasion of the leg breaking back to the influence that the head injury had upon the succession of events, and by treating the connection of each step with that which preceded it and that which followed it as sufficiently establishing that the last event resulted from the first."
11 In my view and with respect, the appellant's shoulder injury did result from his knee injury. I would have granted leave to appeal.
12 MURRAY & WHEELER JJ: Under the Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZW, a party to proceedings before a compensation magistrate's court may, by leave of the Supreme Court, appeal to this Court on a question of law against a decision of the compensation magistrate. This is such an application for leave. The question for this Court is therefore, speaking generally, whether the decision given by the Magistrate was wrong or attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 54 – 7.
13 The matter came before the Compensation Magistrate, Mr Packington SM on appeal, again on a question of law (indeed the same question of law as is raised in the application for leave to appeal to this Court), from the decision of a review officer under the Act, s 84ZN(2).
14 The material circumstances can be briefly stated. On 8 February 2000 the applicant injured his knee in the course of his employment by the respondent. He therefore suffered a "disability" within the meaning of par (a) of the definition of that term in the Act, s 5(1). Under s 18 the respondent was liable to pay compensation under Sch 1. He applied for compensation and received weekly payments for a period during which he was off work and payment of what are called "statutory allowances".
(Page 6)
15 The treatment for the knee injury included a course of physiotherapy. The applicant continued with this after he returned to work. Part of the program recommended to him was bicycle riding. The applicant commenced this form of exercise and continued with it for some time.
16 On 18 September 2000 he fell off the bicycle when he was riding it as part of the recommended exercise programme to assist in the recovery of his knee. The applicant suffered an injury to his right shoulder as a result of which he was off work for about two months. Again he claimed compensation. The application was opposed and in accordance with the statutory procedures came before a review officer on 6 June 2001. The review officer dismissed the application.
17 Packington SM held that he was right to do so. He said that, however the review officer had framed the issues, the true question was simply whether the incapacity following the fall from the bicycle and the injury to the shoulder of the applicant resulted from or was caused by the disability in the form of the knee injury sustained in the course of the applicant's employment in February 2000. His Worship said:
"The causal connection to be examined is not that between knee injury and shoulder injury, but rather that between knee injury and incapacity. … It is true to say, on the evidence before the review officer, that if the applicant had not suffered his knee injury he would not have been riding his bicycle on 18 September 2000 (or indeed on any other day). It is likewise true to say that if the appellant had not fallen from his bicycle he would not have been incapacitated for work after 18 September 2000. But there was no evidence before the review officer to suggest that the applicant's knee injury contributed in any way to the fall in which he injured his shoulder."
18 The application for leave to appeal from that decision is made on the following grounds:
"(1) The learned Magistrate erred in law in applying the 'results from' test incorrectly when he found 'there was no evidence before the Review Officer to suggest that the appellant's knee injury contributed in any way to the fall in which he injured his shoulder.'
(2) The learned Magistrate erred in law when he applied the wrong test in deciding that, '… it does seem to be
(Page 7)
- drawing a very long bow to say that the appellant's incapacity, following his shoulder injury, resulted from his knee injury or, to put it in the reverse formulation, that his knee injury was a material contributing cause of his incapacity subsequent to 18 September 2000.'
- (a) Under ss.18 and 5 and schedule 1 clause 7(1) of the Workers Compensation and Rehabilitation Act, the Review Officer had to determine whether the applicant's incapacity for work resulted from a disability which occurred on 8 February 2000.
(b) In error, the Review Officer dismissed the application on the apparent basis that the correct test to be applied was whether or not there had been a 'disability' suffered on or about 18 September 2000.
(c) The Review Officer failed to apply the correct test when determining whether or not the applicant's need for treatment and incapacity resulted from his disability in accordance with the requirements of schedule 1 cause 7(1) and/or (2) of the Act.
(d) The Learned Magistrate erred in determining the Review Officer 'could not have arrived at a different decision, even if he had applied the test in Legget …'.
The Learned Magistrate erred in law in applying the wrong test when he determined that, 'there was no evidence before the review officer to suggest that the appellant's knee injury contributed in any way to the fall in which he injured his shoulder.'"
19 After hearing the argument of counsel in support of the application, leave to appeal was refused. It was our view that not only was the decision of Packington SM not shown to be wrong or at least that it was doubtful that it was correct, but it was, in our respectful opinion, clearly correct.
(Page 8)
20 The point of law at issue is simply whether the right question was asked as to the cause of the incapacity following the applicant's fall from the bicycle and whether the proper conclusion was that the incapacity following that fall resulted from it without any material contribution being made by the compensable disability, the knee injury. That was a question to be answered in the statutory framework of the definition of the term "disability", the provisions of s 18, to which we have referred, and Sch 1 which provides the compensation entitlements of a worker under the Act. The various provisions defining those entitlements speak in a common form which describes the causal connection by the use of the phrase "results from". Clause 7 in relation to weekly payments is a good example relevant to this case. A liability to make such payments arises when "incapacity for work results from the disability". Clause 9 which deals with the obligation to pay medical and other expenses is expressed in similar language.
21 At one time it was thought that the use of the phrase "results from" confined the relevant question of causation to the ascertainment of a direct or proximate cause of incapacity, but that notion was finally set to rest, at least by the persuasive decision of the Court of Appeal of NSW in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as his Honour then was) said, with the agreement of Sheller JA and Powell JA, at 463:
"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain."
- His Honour went on to refer to what is often described as the occurrence of a novus actus interveniens by saying that in considering questions of causation, "a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped."
22 To return workers' compensation law in relation to causation to that state is to place it on all fours with the general law of causation stated in
(Page 9)
- relation to negligence cases by the High Court in the leading authority of March v Stramare Pty Ltd (1991) 171 CLR 506. The headnote of that case accurately summarises the effect of the judgments of the majority by saying that, "causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter. The "but for" or causa sine qua non test is not a definitive test of causation. That approach to the question has since been adopted in many cases concerned, not only with the question whether a plaintiff's injury was caused by a defendant's negligence, but also with the question whether damages claimed were caused by a plaintiff's injury.
23 This approach to the question of causation under workers' compensation legislation has been adopted by this Court recently in Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182; 18 July 2000, a case to which Packington SM referred, which was concerned with the question whether incapacity was caused by a number of injuries or disabilities, including some which were compensable, and in which it was held that provided work-related injury was a material contributing cause to the incapacity, it would be proper to conclude that the incapacity resulted from the compensable disability. In other words, that was a case where there might be found to be a number of contributing causes to an incapacity for work. The judgment of the court was given by Wallwork J with whom Pidgeon and Miller JJ agreed.
24 In our view, Packington SM adopted the correct approach to the question of causation, treating it as a factual inquiry, applying rules of common sense and recalling that the purpose of the inquiry was to determine whether compensation was payable by the respondent because incapacity was causally related to a work-related injury.
25 Approaching the matter in that way, it seems to us to be clear, as it did to the learned Magistrate, that the incapacity for which the claim was made resulted only from the fall from the bicycle and the shoulder injury then received. In no meaningful sense did it result from the injury to the applicant's knee sustained at work months earlier. This was a case, in our view, where slavish adherence to the "but for" test would produce error. In the words of Kirby P, the chain of causation would become too attenuated if it proceeded along the lines: but for the shoulder injury the incapacity would not have occurred, but for the fall from the bicycle the shoulder injury would not have occurred, but for the fact that the applicant was riding the bicycle he would not have fallen, but for the advice that cycling would be a good form of exercise he would not have been riding
(Page 10)
- the bicycle, but for the knee injury the applicant would not have received and acted on such advice and but for the accident at work he would not have injured his knee.
26 For those reasons we were of the view that leave to appeal should be refused.
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