Engine Protection Equipment Pty Ltd v Miller
[2017] WADC 71
•26 MAY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ENGINE PROTECTION EQUIPMENT PTY LTD -v- MILLER [2017] WADC 71
CORAM: SCOTT DCJ
HEARD: 7 APRIL 2017
DELIVERED : 26 MAY 2017
FILE NO/S: APP 98 of 2016
BETWEEN: ENGINE PROTECTION EQUIPMENT PTY LTD
Appellant
AND
RONALD CRAIG MILLER
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram :ARBITRATOR EKANAYAKE
File No :A 32400 of 2016
Catchwords:
Workers' compensation appeal - Compensable knee injury - Worker on return to work program - Knee collapsed resulting in fall which aggravated asymptomatic degenerative back condition - Application of s 19(1)(b) of Act - Whether resulting back injury personal injury by accident - Entitlement of further prescribed amount
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 19, s 247 sch 1 cl 17
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant: Mr A Basile
Respondent: In person
Solicitors:
Appellant: SRB Legal
Respondent: Not applicable
Case(s) referred to in judgment(s):
Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Cole v P & O Ports Ltd [2002] WASCA 157
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McNair v Press Offshore Ltd (1997) 17 WAR 191
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Rosmini v Chrysler (1973) 6 SASR 212
Royal Perth Hospital (Unreported, WASCA, Library No 970648, 5 December 1997)
SCOTT DCJ: This is an application for leave to appeal and an appeal against the decision of Arbitrator Ekanayake to order the appellant to pay weekly payments to the respondent for total incapacity resulting from a back injury sustained by him on 12 April 2011.
Background
The respondent suffered a left knee injury on 9 November 2009 in the course of his employment with the appellant (knee injury).
The respondent made a claim for workers' compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (Act) relating to the knee injury. The appellant accepted liability for the knee injury and weekly payments for the knee injury were made until 12 December 2014 when the respondent reached the prescribed amount pursuant to the Act.
On or about 19 January 2011 the respondent commenced a return to work program at host employer Bunnings during which on 12 April 2011 his knee gave way resulting in the respondent falling and striking a pallet with his right buttock which caused his previously asymptomatic lumbar spine degeneration to become symptomatic and a compromise of his L5 nerve root resulting in him suffering from sciatica (back injury).
The appellant's insurer was notified of the back injury and accepted liability on or about 11 February 2015. Weekly payments were paid to the the respondent but were suspended by a Conciliation Officer on 16 April 2015 for a period of 12 weeks.
The appellant contended that its insurer admitted liability for the back injury in error and that there was a genuine dispute as to the appellant's liability to pay compensation or as to the proper amount of weekly payments.
The appellant made an application pursuant to s 60 of the Act, resulting in Arbitrator Ekanayake making a determination that there was a genuine dispute as to the appellant's liability to pay compensation and that the respondent's weekly payments should be discontinued from the date of that decision.
The respondent then lodged an application for arbitration dated 29 March 2016 claiming weekly payments resulting from his back injury.
Arbitration
Pursuant to s 5:
injury means —
(a)a personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer's instructions; or
…
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;
…
Section 18 provides:
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
Schedule 1 cl 7 provides:
(1)Subject to section 56 and subclause (3) when total incapacity for work results from the injury a weekly payment during the incapacity equal to the weekly earnings of the worker calculated and varied in accordance with this Schedule.
(2)Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
(3)An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
Section 19 provides:
Personal injury by accident arising out of or in course of employment, meaning of
(1)Without limiting the generality of section 18, a worker shall be treated as having suffered personal injury by accident arising out of or in the course of the worker's employment if the injury occurs —
(a)during the worker's attendance at a place for educational purposes if —
(i)the attendance is required by the worker's terms of employment or apprenticeship; or
(ii)the attendance is for the purpose of, or in connection with, the worker's employment with the employer and the employer agrees to the attendance;
or
(b)during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1; or
(c)during the attendance at a place for the purpose of receiving payment of compensation to which the worker is entitled under this Act.
The respondent's claim proceeded to arbitration on 21 September 2016 before Arbitrator Ekanayake who published his reasons on 23 November 2016.
The respondent accepted that the respondent's back injury would not have occurred other than as a result of his knee injury.
The appellant accepted that the respondent was totally incapacitated as a result of a combination of both the knee injury and the back injury.
The back injury was described in the application as 'an aggravation of underlying asymptomatic disease in lumbar spine with possible disc protrusion'. The arbitrator said in his reasons that on its face that description appeared to be an injury within the definition of 'injury' in limb (d) of s 5 of the Act – being an aggravation of a pre‑existing disease. The arbitrator said that it might equally have been a personal injury by accident within the definition of 'injury' in limb (a) of s 5.
The arbitrator observed that during the course of submissions by counsel for the parties it was clear that the respondent also sought to rely upon limb (a) of s 5 and even though that was not how the respondent's case was initially framed the arbitrator determined that it was clearly open on the facts to consider it. The arbitrator said that the appellant made submissions in respect to a limb (a) type injury, and as a consequence he was satisfied that there was no failure to afford the appellant procedural fairness. There is no issue in this appeal about that determination.
It was common ground in the arbitration that the return to work program at host employer Bunnings at which the back injury was sustained was a place for treatment or attendance of a kind referred to in cl 17 of sch 1 of the Act.
The appellant submitted that the back injury and consequent incapacity resulted from the knee injury and it was under that claim that the respondent's incapacity must fall. As such the respondent's claim for weekly payments must fail given that the prescribed amount for weekly payments for the knee injury had by then been exhausted.
The appellant further submitted that the back injury was an aggravation of a pre‑existent injury by reason of which it fell within the definition of 'injury' in limb (d) of s 5. Given that it arose during the return to work program and not during the respondent's employment the provisions of limb (d) could not be satisfied by the respondent.
The respondent submitted that because his back injury was sustained in the circumstances to which s 19(1)(b) referred it constituted a 'fresh' injury with a new prescribed amount. That is it was, of itself, a personal injury by accident to which limb (a) of s 5 referred.
Arbitrator's reasons
The arbitrator relevantly found as follows.
(a) Meaning of s 19(1)(b)
On its proper interpretation, s 19(1)(b) does no more than extend the meaning of 'arising out of or in the course of the worker's employment' within the definition of personal injury by accident (limb (a) s 5), to include attendances of a kind referred to in sch 1 cl 17 that would otherwise not be covered by that definition.
An 'injury' of the kind referred to in limb (d) (s 5) of the definition of 'injury' would not be covered by s 19(1)(b).
Accordingly to come within the terms of s 19(1)(b) of the Act the respondent must establish that the back injury constituted a personal injury by accident while he was on his return to work program at Bunnings.
(b) Whether the respondent's back injury constituted a personal injury by accident
The arbitrator referred to various reports from a neurosurgeon, Dr Vaughan (neurosurgeon) and Mr Hill (orthopaedic surgeon). In his report dated 30 March 2012, Dr Vaughan said:
He suffers a radiculopathy which occurred by the history given when he suffered a fall when the knee gave way, hitting a pallet and suffering a direct injury to the right buttock area and the twisting motion of the injury, then progressing to a more flagrant radiculopathy as noted. …
No symptomatic lumbar condition was determined prior to the fall at Bunnings work trial. He was adamant he was free of any back or right leg symptoms prior to the fall.
…
Whilst there was the underlying spondylolisthesis of very long standing but apparently non‑symptomatic until the fall, the fall resulted in settling at the pars regions with compressional change of the fifth roots but the possibility put too of a discal protrusion compromising on the right.
In his report of 24 April 2015 Dr Vaughan stated:
There was apparently an asymptomatic long standing spondylitic spondylolisthesis, only becoming symptomatic with the fall described whilst working in a rehabilitation program at Bunnings …
Mr Hill in his report of 11 September 2012 diagnosed the respondent's back injury as follows:
Intermittent sciatic symptoms from compromise of L5 nerve root with substantial pre‑existing degenerative changes in the lumbar spine.
In his report of 10 June 2015 Mr Hill stated:
His back injury relates to a fall at work on 14 April 2011, when his knee apparently gave way and he hit a pallet with his right buttock, following which he developed sciatica … It appears in that injury, that he had aggravated pre‑existing degenerative changes in his back.
The arbitrator said that he was satisfied that the degeneration remained asymptomatic until 12 April 2011. He said that from the medical evidence he accepted that when the respondent's knee gave way and he fell and hit a pallet with his right buttock, that caused his previously asymptomatic lumbar spine degeneration to become symptomatic, causing a compromise of his L5 nerve root resulting in him suffering from sciatica.
Consistent with the meaning of 'personal injury by accident' referred to by Toohey J in Ansett Transport Industries (Operations) Pty Ltd v Srdic (1982) 66 FLR 41, 43 – 44, the arbitrator found:
(i)the respondent suffered an external force that caused a sudden physiological change, that being his knee gave way resulting in him hitting a pallet with his right buttock causing his previously asymptomatic lumbar spine degeneration to become symptomatic;
(ii)the respondent was then in the course of his employment in the extended sense contemplated by s 19(1)(b) of the Act;
(iii)the sudden physiological change rendered a previously asymptomatic condition symptomatic and was not the inevitable consequence of a progressive disease; and
(iv)the respondent's long standing pre‑existing lumbar spine degeneration did not preclude him from claiming he suffered a personal injury by accident.
The arbitrator was satisfied that the respondent suffered a personal injury by accident on 12 April 2011.
(c) Whether the respondent's back injury, as a sequelae of his knee injury precluded the respondent from maintaining his incapacity resulting from his back injury
The arbitrator observed that pursuant to s 21 and sch 1 cl 7 of the Act a worker is entitled to payment of weekly payments for incapacity that 'results from the injury'. As to that expression his Honour referred to Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182; Rosmini v Chrysler (1973) 6 SASR 212 and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 from which he distilled the relevant question to be whether the respondent's current incapacity resulted from his compensable injury and in determining whether one resulted from the other. What was required was a common sense evaluation of the causal chain.
The arbitrator observed that it was common ground that if it were not for the knee injury, the respondent's knee would not have given way and he would not have injured his back and as such in that sense the causal chain remained unbroken and any incapacity resulting from the back injury, in effect resulted from the knee injury.
He said that had the respondent suffered his back injury when he was at home (and therefore otherwise non‑compensable) there would be little doubt that his weekly payments for total incapacity would have continued as the continuing incapacity resulted from his knee injury. The difficulty, as he found, was that the respondent suffered a second compensable injury that contributed to the respondent's incapacity. To that end he observed that when the respondent suffered his back injury he had regained some capacity but was still in receipt of weekly payments for total incapacity which simply continued following his back injury.
The arbitrator said that the respondent's total incapacity simply continued following his back injury and as he remained totally incapacitated he received his full entitlement to compensation. He posed as the relevant question whether the respondent was entitled to a second prescribed amount when the first prescribed amount had been exhausted. That is, having found that the respondent suffered a personal injury by accident on 12 April 2011, did his incapacity after 12 December 2014 (when the first prescribed amount had been exhausted), result from the back injury and if so, was he entitled to a new prescribed amount from that time?
The arbitrator answered that question in the affirmative saying that provided that the respondent's back injury was a material contributing cause of his incapacity he was entitled to compensation for that injury relying on Rosmini (215) (Bray CJ); Cole v P & O Ports Ltd [2002] WASCA 157 [23].
The arbitrator's conclusion was that the respondent's back injury was a compensable injury in its own right and materially contributed to his ongoing incapacity albeit in company with the ongoing knee injury.
He then cited the medical evidence which he said demonstrated that after 12 April 2011 the respondent's knee injury continued to contribute to his incapacity as did his back injury.
The arbitrator was satisfied that from 12 April 2011 the respondent was totally incapacitated as a result of both compensable injuries and after 12 December 2014 (when his entitlement to compensation for the knee injury ceased), he continued to be totally incapacitated as a result of the back injury.
This appeal
By its appeal notice of 29 November 2016 the appellant, pursuant to s 247 of the Act, seeks leave to appeal against the arbitrator's decision citing the following questions of law:
1.The arbitrator erred in law in finding that the respondent suffered a personal injury by accident in the course of his employment on 12 April 2011.
2.The arbitrator erred in law in finding that the respondent was entitled to a new prescribed amount pursuant to the Act for weekly payments having been paid the prescribed amount for a knee injury he sustained in the course of his employment with the appellant on 9 November 2009.
3.The arbitrator erred in law in making a finding which was not supported by the evidence.
The particulars of this ground were that the arbitrator erred in law in making a finding that the respondent suffered a personal injury by accident in the course of his employment with the appellant when the medical evidence did not support such a finding.
Although the respondent was unrepresented at the hearing of this appeal, he filed written submissions which, he said, had been settled by his former solicitor who represented him in the arbitration.
An arbitrator is not bound by the rules of evidence (s 188(2)(a)) and is entitled to inform himself on any matter as he sees fit (s 188(3)) and is required to act according to good conscious and the substantial merits of the case (s 188(2)(b)).
Nothing in the Act detracts from the general duty of arbitrators to act judicially: McNair v Press Offshore Ltd (1997) 17 WAR 191, 198. An arbitrator is required to consider the rules of evidence and apply them in accordance with the merits and issues in the case.
An appeal involving a question of law extends to questions of mixed fact and law. So, if some question of law is involved the whole of the decision under appeal is open to review and not just the question of law: Pacific Industrial Co v Jakovljevic [2008] WASCA 60.
As to whether a question is one of law or fact, Wheeler J in Hood v Royal Perth Hospital (Unreported, WASCA, Library No 970648, 5 December 1997) referred to the decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 – 356 (Mason CJ) and said:
The question whether there is any evidence of a particular fact is a question of law. …Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. … This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. … So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. …
Similarly therefore, the making of a finding that there is no evidence of an ultimate fact when there is, equally involves a question of law. On the other hand, if an appellant seeks to demonstrate that the arbitrator's assessment of the weight to be given to evidence was erroneous if such an error were made it would not be an error of law: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 in which the court approved the observation of Kirby P in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 that:
If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.
Ground 1
In written and oral submissions the appellant contended that the arbitrator:
(a)Correctly interpreted the provisions of s 19(1)(b) of the Act to do no more than extend the meaning of 'arising out of or in the course of the worker's employment' within the definition of personal injury by accident (limb (a) s 5).
(b)Correctly found that an injury of the kind referred to in limb (d) of the definition of injury would not be covered by the extended definition pursuant to s 19(1)(b) and correctly found that in order to come within the terms of s 19(1)(b) of the Act the respondent must establish that he suffered a personal injury by accident while he was on his return to work program at Bunnings.
To that end the injury identified by the respondent in his application was an 'aggravation of underlying asymptomatic disease in lumbar spine with possible disc protrusion' from which, the appellant says it was clear that that was an injury as defined by limb (d) of s 5. As such, the appellant could not prove that the employment of the respondent (i.e., with the appellant) was a contributing factor.
In my view the arbitrator was correct in his analysis in his findings that an injury in respect to which limb (d) of s 5 was sought to be enlivened was not covered by s 19(1)(b) of the Act and that the appellant would need to prove that his back injury was a personal injury by accident to result in s 19(1)(b) being applicable.
There is no reason why an injury suffered by a worker could not fall within more than one statutory definition in s 5.
The question which the arbitrator correctly posed in this regard was whether he was satisfied that the respondent suffered a personal injury by accident while he was on his return to work programme at Bunnings – that return to work programme falling within the extended definition pursuant to s 19(1)(b).
In Ansett the court considered the meaning of 'personal injury by accident'.
Toohey J referred to the relevant principles. The arbitrator summarised some of them. However, it is instructive to refer to the entirety of that part of his Honour's judgment.
Toohey J said (43 – 44):
… Rather than refer at length to individual judgments, I propose, with some diffidence, to state the principles emerging from them:
1.The question whether there has been personal injury by accident is a question distinct from, and logically anterior to, the question whether what has happened arose in the course of the relevant employment. The questions have not always been kept distinct: Commonwealth v Hornsby (1960) 103 C.L.R. 588, at p 597 per Fullagar J.
2.The expression personal injury by accident is a compound one. It is not necessary to show, first, that something to be described as an accident happened and secondly, that something else, namely an injury, was brought about or caused by that accident: Fenton v J Thorley & Co Ltd [1903] AC 443; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317, at p 325 per Latham CJ. The use of the term 'accident' points up to the unexpected nature of the event constituting the injury: Clover, Clayton & Co Ltd v Hughes [1910] AC 242; Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30, at p 40 per Windeyer J.
3.It is no longer necessary to prove that some external event or some action of the worker caused a sudden physiological change to happen when it did. That necessity arose from the requirement to establish that injury by accident had arisen out of and in the course of the employment: James Patrick & Co Pty Ltd v Sharpe [1955] AC 1; Commonwealth v Ockerdom (1958) 99 CLR 215, at p 222.
4.Personal injury by accident may exist where there is no more than an actual internal physical injury such as the rupture of aneurism or of an oesophagus, not attributable to any external injury but resulting from some force or pressure exerted within the body: Clover, Clayton & Co Ltd v Hughes and Kavanagh v Commonwealth (1960) 103 CLR 547.
5.Where the personal injury by accident relied upon is an internal physical injury, it is no answer to a claim for compensation that there was a pre‑disposing physical condition. The employer must take the worker as he finds him: Commonwealth v Hornsby at p 597 per Fulagar J.
6.A worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment: Commonwealth v Ockenden at p 224.
7.Where incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre‑existing and progressive morbid physical condition, the disease and the condition in which it culminated (for instance thrombosis or occlusion) is autogenous. In the absence of any particular incident or activity of the worker accelerating or contributing to the condition, there is no personal injury by accident: Commonwealth v Hornsby at p 597 per Fullagar J.
8.Personal injury by accident arises in the course of employment so long as it occurs while the worker is performing his duties or doing something incidental to the actual performance of those duties, or put another way, where he is engaged in his employment. There need be no causal connexion between the injury and the employment: Kavanagh v Commonwealth and Weston v Great Boulder Mines Ltd.
9.The traditional view that a physiological change, sudden or otherwise, is not an injury by accident arising in the course of the employment unless it is associated with some incident of the employment cannot be pressed beyond the case of physiological change which is produced by the development of a progressive disease: Kavanagh v Commonwealth at p 555 per Dixon CJ.
In dealing with Ansett Transport and the principles identified by Toohey J, counsel for the appellant in written submissions said:
5.13Notwithstanding that the Registrar [sic] correctly identified the principles in determining whether the Respondent had suffered a personal injury by accident which principles included inter alia:
5.13.1the Respondent doing something incidental to the actual performance of his duties;
5.13.2proving that the physiological change was a consequence of a progressive disease attributable to the employment
and having already found that at the time the Respondent injured his back he was not in the course of his employment with the Appellant but was on a return to work program, still found that the Respondent was in the course of his employment in the extended sense contemplated by section 19 of the Act.
5.14 The Registrar [sic] erred in law in making a determination that he was in the course of his employment as there was no evidence that he was in the course of his employment. In fact the evidence was that the Respondent was participating in a return to work program.
In my view, this submission misconceives the correct finding of the arbitrator as to the meaning of s 19(1) of the Act. That is, that when considering whether an injury is a personal injury by accident arising out of or in the course of the employment, the 'employment' includes by s 19(1)(b) participation by the respondent in the return to work programme.
In my view the arbitrator was not in error in finding that the respondent by sustaining the back injury in the manner in which he did, suffered a personal injury by accident having regard to the provisions of s 19(1)(b). My reasons are:
(a)From the medical evidence the respondent had, as at 12 April 2011, significant pre-existing degenerative changes in his lumbar spine.
(b)It was open to the arbitrator to accept the medical evidence that whilst there was the underlying spondylolisthesis of very longstanding, but asymptomatic until the fall, the fall resulted in settling at the pars regions with compressional change of the L5 nerve root from which the respondent developed sciatica and aggravated pre-existing degenerative changes in his back.
(c)The medical evidence does not support the respondent's back injury resulting from the development or culmination of a pre‑existing and progressive morbid physical condition.
(d)There need not be any causal connection between the injury and the employment. The respondent's back injury occurred while the respondent was engaging in his employment, i.e., in the return to work programme.
(e)It might be that the back injury could be described as an aggravation of a pre‑existing condition. That, however, does not preclude it from constituting a personal injury by accident. It is no answer to a claim for compensation that there was a predisposing physical condition. The appellant must take the respondent as he finds him: Hornsby (597) (Fullagar J).
Ground 2
This ground relates to the finding by the arbitrator that the respondent's back injury is a sequelae of the knee injury.
The respondent accepted his back injury would not have occurred if not for his knee injury. That is, but for his knee injury the knee would not have collapsed, the respondent would not have fallen and he would not have suffered the back injury. That is a conclusion which is not in dispute.
From that the appellant submits that the test outlined by Wallwork J in Leggett has application. In that case, his Honour adopted the observations of Bray CJ in Rosmini as follows:
In Rosmini v Chrysler (supra) at 215, Bray CJ said:
'I take certain propositions to be established in this field of compensation law:
1.…
2.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: …
3.A supervening factor, a novus actus interveniens, may so operate as to displace in the eyes of the law the original injury as the cause of the incapacity; … .'
Bray CJ discussed what was meant by the conceptions of material contributing cause and novus actus interveniens, which he said needed further analysis. At 216 and following his Honour discussed the previous cases. At 217 his Honour 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 page 480.'
Cases such as Leggett and Cole do not support the appellant's argument in this case. They deal with circumstances in which an injury was sustained which was not on the face of it a workplace injury. The matter there to be determined was whether the incapacity flowing from that injury resulted from it without any material contribution being made by an earlier injury, being the compensable disability. The question to be asked in those circumstances was whether the work‑related and compensable injury was a material contributing cause to the incapacity caused by a subsequent injury and, if so, it would be proper to conclude that that incapacity resulted from the compensable disability.
This is a case where, as the arbitrator correctly found, there are two work-related injuries.
In Kooragang Cement, Kirby P said (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 in that case said 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.
In Cole, the majority (at [22]) referred to the headnote in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, which they said accurately summarised the effect of the judgments of the majority in that case, 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.
In Cole, the worker sustained an injury at work, was advised to undertake exercise by bicycle riding and some months later fell from the bicycle and sustained a shoulder injury. At [25] the majority said this:
... In no meaningful sense did it result from the injury to the applicant's knees 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 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 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.
Whilst this was perhaps an extreme example, it does demonstrate the need to take a common sense view. In this case the arbitrator correctly found that the respondent's back injury was, itself, a personal injury by accident. Whilst it might be said that the respondent's knee injury predisposed him to subsequent injury, the arbitrator was correct in his finding that the respondent's back injury resulted in the current incapacity.
It would defy common sense to find that because the respondent would not have fallen but for his knee injury, it was that injury and not the back injury which materially contributed to his current incapacity. That reasoning in the circumstances of this case would, in addition, not accord with the policy underpinning the compensatory provisions of the Act.
The arbitrator was not in error in finding that the back injury was a material cause of the respondent's incapacity and that the respondent was entitled to weekly payments to a new prescribed amount with respect to the extent of the incapacity from his back injury after 12 December 2014.
Ground 3
Ground 3 is but a manifestation of grounds 1 and 2 and has been dealt with by me in my earlier findings.
I am satisfied that the grounds of appeal involve mixed matters of fact and law.
I would give leave to the appellant to appeal on the grounds specified in the appeal notice but dismiss the appeal.
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