Engine Protection Equipment Pty Ltd v Miller
[2018] WASCA 55
•2 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ENGINE PROTECTION EQUIPMENT PTY LTD -v- MILLER [2018] WASCA 55
CORAM: MURPHY JA
MITCHELL JA
BEECH JA
HEARD: 5 APRIL 2018
DELIVERED : 2 MAY 2018
FILE NO/S: CACV 69 of 2017
BETWEEN: ENGINE PROTECTION EQUIPMENT PTY LTD
Appellant
AND
RONALD CRAIG MILLER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
Citation: ENGINE PROTECTION EQUIPMENT PTY LTD -v- MILLER [2017] WADC 71
File Number : APP 98 of 2016
Catchwords:
Workers' compensation - Worker suffered knee injury resulting in incapacity for work - Worker in receipt of weekly payments - Subsequently worker suffered back injury - Incapacity for work materially contributed to by both injuries - Whether arbitrator erred in finding that after prescribed amount for knee injury was exhausted the worker was entitled to further compensation payments for the back injury
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 18, s 21, sch 1 cl 7
Result:
Appeal dismissed
Leave to appeal refused
Category: B
Representation:
Counsel:
| Appellant | : | Mr D R Clyne |
| Respondent | : | Mr N F Morrissey |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Foyle Legal |
Case(s) referred to in decision(s):
Catholic Education Office of WA v Granitto [2012] WASCA 266
Cole v P & O Ports Ltd [2002] WASCA 157
Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465
Dawkins v Metropolitan Coal Co Ltd (1947) 75 CLR 169
Engine Protection Equipment Pty Ltd v Miller [2017] WADC 71
Evans v Oakdale Navigation Collieries Ltd [1940] 1 KB 702
Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212
Ward v Corrimal‑Balgownie Collieries Ltd (1938) 61 CLR 120
Wheatley v Lambton, Hetton and Joicey Collieries Ltd [1937] 2 KB 426
JUDGMENT OF THE COURT:
Introduction
The appellant (the employer) seeks leave to appeal against a decision of the primary judge[1] dismissing an appeal against a decision of an arbitrator. The arbitrator determined that the respondent (the worker) was entitled to compensation in the form of weekly payments for total incapacity for his back injury, for the periods sought by the worker.
[1] Engine Protection Equipment Pty Ltd v Miller [2017] WADC 71 (primary reasons).
In essence, the employer contends that the arbitrator erred in law in failing to focus on which of the two injuries suffered by the worker, namely the back injury and an earlier knee injury, was the true cause of the worker's incapacity. In our view, the arbitrator was correct not to seek to identify the 'true cause' of the worker's incapacity. The arbitrator acted in accordance with the applicable legal principles by considering whether the back injury materially contributed to the worker's incapacity.
For the reasons set out below, we would refuse leave to appeal and dismiss the appeal.
Background
The background facts are not, and were not, in dispute.[2]
[2] The following outline is taken from the arbitrator's reasons [15] and primary reasons [2] ‑ [8].
On 9 November 2009, the worker suffered a left knee injury (the knee injury) in the course of his employment with the employer. The worker claimed workers' compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) in relation to the knee injury. The employer accepted liability in relation to the claim. Weekly payments for the knee injury were made until 12 December 2014, when payments to the worker reached the prescribed total amount pursuant to the Act.[3]
[3] Schedule 1, cl 7(3) of the Act.
On or about 19 January 2011, the worker commenced a return to work program at a host employer. In the course of that program, on 12 April 2011, the worker's left knee gave way, resulting in him falling and striking a pallet with his right buttock. That caused the worker's previously asymptomatic lumbar spine degeneration to become symptomatic and to compromise his L5 nerve root, resulting in him suffering from sciatica (the back injury).
The employer's insurer was notified of the back injury and accepted liability on or about 11 February 2015, making weekly payments thereafter, until 16 April 2015.
The weekly payments were suspended by a conciliation officer on 16 April 2015 for a period of 12 weeks. The employer made an application, pursuant to s 60 of the Act. The employer contended that its insurer had admitted liability for the back injury in error and that there was a genuine dispute as to the employer's liability to pay compensation or as to the proper amount of weekly payments. The arbitrator determined that there was a genuine dispute and that the weekly payments should be discontinued.
On 29 March 2016, the worker lodged an application for arbitration, claiming weekly payments resulting from the back injury for the period 16 April 2015 to 9 July 2015 and from 1 December 2015 ongoing.
On 23 November 2015, the arbitrator published reasons for decision allowing the worker's claim and ordering that further payments be made for total incapacity for the periods claimed by the worker.
It is convenient to outline relevant parts of the Act, before turning to the arbitrator's decision.
The Act
If an injury of a worker occurs, their employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1.[4]
[4] Section 18 of the Act.
'Injury' is defined in s 5 to mean:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions; or
(b)a disease because of which an injury occurs under section 32 or 33; or
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; 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; or
(e)a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer[.]
Weekly payments of compensation are payable where the worker has total or partial incapacity for work that results from the injury.[5] Clause 7 of sch 1 provides, so far as is material:
(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.
[5] Schedule 1, cl 7 of the Act.
Section 19 provides, so far as is material:
(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 -
…
(b)during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1[.]
An employer is liable to pay compensation under the Act 'from the date of incapacity resulting from the injury'.[6]
[6] Section 21 of the Act, subject to the application of cl 9 of sch 1 relating to medical expenses.
The arbitrator's reasons
Before the arbitrator, the worker claimed that he was, and is, totally incapacitated for work as a consequence of his back injury on 12 April 2011. The employer contended that his incapacity results from the knee injury he suffered on 9 November 2009, for which the prescribed amount had been exhausted. The worker accepted that his back injury would not have occurred other than as a result of his knee injury.[7] The employer accepted that the worker is now totally incapacitated as a result of both the knee injury and the back injury.[8]
[7] Arbitrator's reasons [17].
[8] Arbitrator's reasons [18].
The arbitrator summarised the issues as follows:[9]
(a)Does s 19 of the Act serve to deem any injury to be a fresh injury?
(b)If not, as a matter of fact, did the worker suffer a fresh injury, within the definition of 'injury' in s 5 of the Act?
(c)If so, is the worker entitled to make a new claim for his back injury?
(d)Given that the worker's back injury was a consequence of his knee injury, is he precluded from alleging his incapacity results from his back injury?
(e)If the worker has a fresh compensable back injury, has he established that he is totally incapacitated as a result of the back injury?
Issue (a)
[9] Arbitrator's reasons [24].
The arbitrator determined the first issue adversely to the worker, concluding that s 19 does not automatically deem any injury to be a fresh injury.[10] As there is no challenge to that aspect of the arbitrator's reasons, nothing more need be said about it.
Issue (b)
[10] Arbitrator's reasons [25] ‑ [37].
After considering the various medical reports, the arbitrator found that the worker's fall on 12 April 2011 caused his previously asymptomatic lumbar spine degeneration to become symptomatic, causing a compromise of his L5 nerve root and resulting in him suffering from sciatica.[11] As a consequence, the arbitrator was satisfied that the worker had established that he suffered a 'personal injury by accident' (within the meaning of s 5(a) of the Act) affecting his lumbar spine on 12 April 2011.[12] There is no challenge to these conclusions.
Issue (c)
[11] Arbitrator's reasons [50].
[12] Arbitrator's reasons [52].
The arbitrator found that the worker had satisfied the procedural requirements for making a new claim.[13] Although the claim was not lodged within 12 months of the injury, the employer was not prejudiced by that delay.[14]
Issue (d)
[13] Arbitrator's reasons [61].
[14] See s 178 and s 179 of the Act.
The arbitrator then considered the employer's submission that, in effect, the worker was double dipping by claiming two sets of weekly compensation for the same incapacity.[15] The arbitrator outlined the effect of s 21 and sch 1 cl 7 of the Act, namely that the worker is entitled to weekly payments of compensation for incapacity that 'results from' the injury. The arbitrator considered authorities bearing on the meaning of the expression 'results from' the injury. He identified the relevant question as being whether the worker's incapacity resulted from his compensable injury.[16] In determining whether one resulted from the other, the arbitrator observed that what was required was a common sense evaluation of the causal chain.[17]
[15] Arbitrator's reasons [65].
[16] Arbitrator's reasons [68] ‑ [69], referring to Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 [30].
[17] Arbitrator's reasons [70], referring to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463 ‑ 464.
The arbitrator found that the causal chain between the knee injury and any incapacity resulting from the back injury was unbroken because, as was common ground, were it not for the worker's knee injury, his knee would not have given way and he would not have injured his back.[18] Nevertheless, the arbitrator found that, because what occurred on 12 April 2011 was a fresh injury and because it materially contributed to his incapacity thereafter, his incapacity after 12 December 2014 (when the first prescribed amount had been exhausted) resulted from the back injury.[19] The arbitrator stated that it did not matter whether there are multiple causes of incapacity, some compensable, some not, as long as the workplace injury is a material contributing cause.[20]
[18] Arbitrator's reasons [71].
[19] Arbitrator's reasons [77] ‑ [81].
[20] Arbitrator's reasons [79], referring to Cole v P & O Ports Ltd [2002] WASCA 157 [23].
The arbitrator considered and distinguished the decision of the High Court in Dawkins v Metropolitan Coal Co Ltd.[21] In that case, the worker was totally incapacitated by a non‑compensable cause, namely a form of tuberculosis. Subsequently, he contracted pneumoconiosis in the course of his employment which also rendered him totally incapacitated. The High Court held, in effect, that, as the worker was already totally incapacitated, his workplace injury could not render him any more incapacitated so he was not entitled to compensation.
[21] Dawkins v Metropolitan Coal Co Ltd (1947) 75 CLR 169.
The arbitrator distinguished the situation before him from the circumstances in Dawkins on two grounds. First, he observed that, although the worker was receiving payments for total incapacity when he suffered his back injury, as a matter of fact it was arguable that he had regained some capacity by that time, evidenced by the fact that he was participating in a return to work program. The back injury, in combination with the knee injury, then rendered him totally incapacitated.[22]
[22] Arbitrator's reasons [87].
Secondly, the arbitrator found that, at the date the first prescribed amount was exhausted, the worker was not totally incapacitated solely as a result of his knee injury. He referred to his analysis of the medical evidence later in his reasons. That included the conclusion of Mr Vaughan, a neurosurgeon, that both the knee injury and the back injury contributed to his incapacity.[23]
Issue (e)
[23] Arbitrator's reasons [88], [103].
The arbitrator rejected the employer's contention that it was for the worker to establish that the back injury was the sole cause of his total incapacity.[24] The arbitrator found that: (1) as long as the incapacity results from his back injury he is entitled to compensation for that incapacity; and (2) if the back injury is a material contributing cause of that incapacity, then it can be said that the incapacity results from the back injury.[25]
[24] Arbitrator's reasons [91] ‑ [98].
[25] Arbitrator's reasons [96] ‑ [98].
The arbitrator found that, while there was evidence that showed that the knee injury continued to contribute to the incapacity, there was also sufficient evidence to demonstrate that the back injury also contributed to the incapacity.[26] The arbitrator referred to progress certificates of Dr Dalitz, a general practitioner. Prior to the back injury, Dr Dalitz certified the worker fit for restricted return to work. By 6 May 2011, Dr Dalitz certified the worker totally unfit for work, at least partly as a result of his lower back injury and continued to so certify intermittently through to 2016.[27] The arbitrator also referred to:
(1)a report dated 11 September 2012 from Mr J M Hill, orthopaedic surgeon, in which the worker's incapacity was referred to as being related to both his knee instability and sciatica;
(2)a report dated 2 [sic: 23] May 2013 from Dr Chin‑Wern Chan, a pain medicine consultant, in which it is said that the worker's inability to work is a result of both his knee pain and his lower back pain; and
(3)a report dated 24 April 2015 from Mr Vaughan, a neurosurgeon, expressing the view that the worker's knee injury and his back injury act in concert in the current impairment.[28]
[26] Arbitrator's reasons [99].
[27] Arbitrator's reasons [100].
[28] Arbitrator's reasons [101] ‑ [103].
The arbitrator concluded that:
(a)the worker was totally incapacitated for work from the date of his back injury, and continues to be so;
(b)that incapacity has been materially contributed to by both his knee injury and his back injury;[29] and
(c)given that the back injury is a compensable personal injury by accident, the worker is entitled to compensation in the form of weekly payments for total incapacity for that injury.[30]
When the second prescribed amount became operative
[29] Arbitrator's reasons [104].
[30] Arbitrator's reasons [105].
The arbitrator then turned to the question of when the second prescribed amount became operative. The arbitrator referred to s 21 of the Act, which provides that compensation is payable from the date of incapacity. He observed that that might suggest that the second prescribed amount, in respect of the back injury, took effect from the date of that injury.[31]
[31] Arbitrator's reasons [108].
However, the arbitrator observed that that analysis overlooked the fact that, from April 2011, the worker was totally incapacitated as a result of two compensable injuries, both of which entitled him access to a prescribed amount.[32] The arbitrator referred to the provisions of cl 7(3) of sch 1, which we have set out above. The arbitrator then reasoned as follows:
For the period until the first prescribed amount was exhausted (12 December 2014), [the worker] continued to be incapacitated as a result of the knee injury. On 12 December 2014, his entitlement to compensation for the knee injury ceased.
From 13 December 2014 onwards, [the worker] continued to be totally incapacitated as a result of his back injury. Therefore, [the worker] is entitled to access payments from the second prescribed amount for his incapacity resulting from the back injury from that date onwards.[33]
[32] Arbitrator's reasons [109].
[33] Arbitrator's reasons [111] ‑ [112].
Consequently, the arbitrator ordered that the employer pay the worker weekly payments for total incapacity for the period 16 April 2015 to 9 July 2015 and ongoing from 1 December 2015.
The employer's appeal to the District Court
The employer filed an appeal notice in the District Court, seeking leave to appeal pursuant to s 247 of the Act, from the arbitrator's decision. Section 247 of the Act provides, relevantly:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
The employer sought leave to appeal to the District Court on three grounds:
1.The arbitrator erred in law in finding that the [worker] had suffered a personal injury by accident during the course of his employment on 12 April 2011.
Particulars
…
1.9The medical evidence therefore clearly indicated that the [worker] had suffered a limb (d) injury [being a reference to s 5(d)] having already concluded that a limb (d) injury is not covered by s 19(1)(b) of the [Act], the arbitrator should have dismissed the application.
1.10The arbitrator made a finding that the [worker] had suffered a personal injury by accident when the medical evidence clearly stated that the [worker] had aggravated a pre‑existing condition to a significant degree.
2.The arbitrator erred in therefore finding that the [worker] was entitled to a new prescribed amount having reached the prescribed amount for an earlier injury sustained to the [worker's] knee on 9 November 2009.
3.The arbitrator erred in law in making a finding that the [worker] suffered a personal injury by accident in the course of his employment with the [employer] when the medical evidence did not support such a finding.
The reasons of the primary judge
The primary judge set out the factual background, the statutory framework and the arbitrator's reasoning. He then dealt with the grounds of appeal in turn.
It is not necessary to detail the judge's reasoning in relation to ground 1 as his conclusion in that regard is not challenged in this court.[34] Essentially, his Honour found no error in the arbitrator's reasoning that, in sustaining the back injury in the manner in which he did, the worker suffered a personal injury by accident.[35]
[34] Appeal ts 2.
[35] Primary reasons [57].
In dealing with ground 2, the primary judge distinguished the case before him from cases such as Leggett v Argyle Diamond Mines Pty Ltd and Cole v P & O Ports Ltd, both of which had been relied on by the employer. His Honour stated that cases such as Leggett and Cole deal with circumstances in which the injury sustained appeared to arise from an incident outside of work. The issue in those cases was whether an earlier, compensable, work‑related injury was a material contributing cause to the incapacity that was immediately caused by a subsequent injury outside of the workplace.[36]
[36] Primary reasons [61].
By contrast, his Honour said, in the present case there were two work‑related injuries.
After quoting passages from Kooragang Cement v Bates and Cole v P & O Ports, his Honour, in effect, applied the tests stated in those cases. In other words, his Honour proceeded on the basis that:
(1)Whether incapacity results from a relevant work injury is a question of fact requiring a common sense evaluation, but not requiring that the injury be the proximate cause of the incapacity.
(2)However, a point can be reached where the link in the chain of causation becomes so attenuated that the causative link has been broken.
The primary judge concluded that the arbitrator correctly found that the worker's back injury was, itself, a personal injury by accident. His Honour found that, while it might be said that the worker's knee injury predisposed him to subsequent injury, the arbitrator was correct in his finding that the back injury resulted in the current incapacity. To reason that, because the worker would not have fallen but for his knee injury, it was that injury and not the back injury from which the incapacity resulted would defy common sense and would not be in accordance with the policy underpinning the Act.[37]
[37] Primary reasons [68].
The judge concluded that the arbitrator did not err in finding that the back injury was a material cause of the worker's incapacity and that the worker was entitled to weekly payments to a new prescribed amount for the extent of the incapacity from his back injury after 12 December 2014.[38]
[38] Primary reasons [69].
The judge described ground 3 as merely a manifestation of grounds 1 and 2 that had been dealt with by his earlier findings.
While the judge granted leave to appeal, he dismissed the appeal.[39]
[39] Primary reasons [72].
Grounds of appeal
The employer advances two grounds of appeal to this court. They may be summarised as follows:
(1)The primary judge erred in law in finding that the worker was entitled to a new prescribed amount for weekly payments pursuant to the Act in respect of the back injury occurring on 12 April 2011.
(2)The primary judge erred in holding that those weekly payments should be paid from 16 April 2015 to 9 July 2015 and from 1 December 2015 onwards, when (if ground 1 is rejected) he should have held that the payments should be made from the date of incapacity, namely 12 April 2011.
Leave to appeal
The employer requires leave to appeal from the decision of the primary judge. Section 254 of the Act provides that an appeal may be made to this court in respect of a judgment in proceedings in the District Court under pt XIII of the Act, but that the appeal must relate to a question of law and leave to appeal must be obtained from this court.
Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.[40] Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.[41]
[40] Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 [73].
[41] Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200 [31].
We will return to the question of leave after considering the merits of the grounds of appeal.
Ground 1: appellant's submissions
The appellant's principal submissions are to the following effect:
1.The primary judge failed properly to apply s 21 of the Act, which requires a worker to establish that the incapacity for work results from the injury.[42] That does not require that the injury be the sole cause of the incapacity but it must be a material contributing cause.[43]
2.The payments of compensation are made in respect of incapacity resulting from an injury, not simply on account of the injury itself. In this case, the back injury was a consequence of the knee injury. If the worker's incapacity arose from the back injury rather than the knee injury, the requirement to make payments in respect of the back injury should have commenced from the date of the commencement of that incapacity and the requirement to make payments for the earlier incapacity should cease because the knee is 'no longer the true cause of the incapacity'.[44]
3.While an incapacity can result from two separate injuries, compensable or not, there can be only one incapacity.[45]
4.The worker was already totally incapacitated by his knee injury, for which he was receiving compensation payments. The primary judge should have applied the reasoning in Dawkins v Metropolitan Coal Co Ltd.[46] In that case, the worker was already totally incapacitated by a non‑work‑related illness and the work‑related pulmonary fibrosis did not add to the previously existing incapacity. That reasoning should have been applied to the present case.[47]
5.Finally, to the extent that there was a question as to which injury resulted in the incapacity, the onus was on the worker to 'sort out' which injury caused the incapacity.[48]
[42] Appellant's submissions [7] - [9], appeal ts 2.
[43] Appellant's submissions [9], citing Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212.
[44] Appellant's submissions [11]; see also appeal ts 3 ‑ 4, 5, 6.
[45] Appellant's submissions [12].
[46] Dawkins v Metropolitan Coal Co Ltd (1947) 75 CLR 169.
[47] Appellant's submissions [13] - [15].
[48] Appellant's submissions [16], relying on Mitchell v Canal Rocks Beach Resort [2002] WASCA 331; appeal ts 5.
Ground 1: disposition
Weekly payment of compensation is payable where an 'injury' of a worker occurs and where the worker has total or partial incapacity for work that 'results from the injury'.[49] Thus, in order to obtain weekly payments, the worker must establish both incapacity and injury.[50]
[49] Section 18, sch 1, cl 7 of the Act.
[50] Catholic Education Office of WA v Granitto [2012] WASCA 266 [21].
In common with other forms of workers' compensation legislation, the Act requires two forms of connection: first, a connection between the worker's employment and the injury; and, secondly, a connection between that injury and the worker's incapacity.[51]
[51] Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465, 478; Catholic Education Office v Granitto [21].
The concept of injury is defined so as to provide the requisite statutory causal connection with the worker's employment.[52]
[52] Napier v BHP [6].
The focus of this appeal is on the other element of connection: the requirement that the incapacity 'results from' the injury. Satisfaction of that element does not require that the injury be the direct or proximate cause of the incapacity.[53] It is sufficient if the injury was a material contributing cause to the incapacity.[54] Whether the incapacity results from the injury is a factual inquiry involving a common sense evaluation of all the facts and circumstances, bearing in mind that the purpose of the inquiry is to determine whether compensation is payable by the employer because incapacity was casually related to the work‑related injury.[55]
[53] Cole v P & O Ports Ltd [2002] WASCA 157 [21]; Napier v BHP [94].
[54] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182 [24] ‑ [26], citing Rosmini v Chrysler (215); Cole v P & O Ports Ltd [23]; Napier v BHP [94].
[55] Cole v P & O Ports Ltd [21], [24]; Napier v BHP [93].
Thus, more than one cause, including more than one injury, may contribute to an incapacity.[56]
[56] Cole v P & O Ports Ltd [23]; Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [13]; Napier v BHP [94] ‑ [95].
The burden of proving the elements of the claim, and thus proving the incapacity, the injury, and that the incapacity results from the injury, lies on the worker as applicant for compensation.[57]
[57] Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [55].
In Dawkins the worker was found to have been totally incapacitated for work in and from April 1938, by reason of pulmonary tuberculosis which was in no way due to his work with the employer and was not aggravated or contributed to by such work. It was also found that since July 1945 he had also been totally incapacitated by a compensable condition, namely pneumoconiosis, contracted in the course of his employment with the respondent. It was further found that from July 1945 the worker was totally incapacitated by each of these separate, independent diseases.[58] Broadly speaking, the High Court held that because the worker was already totally incapacitated by the pulmonary tuberculosis, his incapacity could not be said to result from the pneumoconiosis.
[58] Dawkins (181 - 182).
Latham CJ said, relevantly, as follows:[59]
The total incapacity from which the worker suffered in 1945 was incapacity which had been created before 1938 and which had continued ever since. In respect of that incapacity no increase was possible. The incapacity due to the fibrosis which had become complete by 1945 did not add to previously existing incapacity. The previous existing incapacity still continued and that incapacity did not result from an injury in respect of which compensation was payable. Under the New South Wales Act an applicant can succeed in his claim only if he can show that he has suffered an injury arising out of or in the course of his employment (s 6, definition of 'injury'; and s 7) which results in incapacity (s 9).
In Wheatley v Lambton, Hetton and Joicey Collieries Ltd (1937) 2 KB 426 the Court of Appeal considered a case of total incapacity arising from an accident, followed by total incapacity arising from miner's nystagmus. It was held that the workman was not entitled to any compensation in respect of nystagmus while the total incapacity from the previous accident continued, as the disease did not result in any loss or diminution of earning capacity. In that case a second medical certificate had been given certifying that the miner's nystagmus had created total incapacity. Sir W Greene MR said:
'At the date of the certificate, as he was already incapacitated for work, he had no element of capacity left in him which this new supervening accident' (ie, disease) 'could take away' (1937) 2 KB, at p 435.'
The effect of this decision is stated by Luxmoore LJ in Evans v Oakdale Navigation Collieries Ltd (1940) 1 KB, at p 714 in the following words:
'Of course, if, as the result of the first accident, the workman suffers total disability, it matters not whether he is subsequently certified to be suffering from an industrial disease which also has rendered him totally incapacitated, for in such a case there is no capacity for work on which the notional accident can operate; Wheatley v Lambton, Hetton and Joicey Collieries Ltd (1937) 2 KB 426. As Greene MR pointed out in the earlier appeal - Evans v Oakdale Navigation Collieries Ltd (1939) 32 BWCC, at p 56 - so long as the total incapacity lasted from the first accident, no compensation could be recovered in respect of the second accident, although in respect of the second accident a declaration of liability might properly be obtained.'
In the present case the total incapacity of the worker which existed in 1945 had existed for some years prior to that date as a result of tuberculosis. It could not therefore be said to be the result of fibrosis because one hundred per cent incapacity cannot be increased beyond one hundred per cent by any supervening cause.
[59] Dawkins (183 - 184).
Starke J held that the cases of Wheatley v Lambton, Hetton and Joicey Collieries Ltd[60] and Ward v Corrimal‑Balgownie Collieries Ltd[61] supported the conclusion that had been reached below.
[60] Wheatley v Lambton, Hetton and Joicey Collieries Ltd [1937] 2 KB 426.
[61] Ward v Corrimal‑Balgownie Collieries Ltd (1938) 61 CLR 120.
Dixon J, with whom Rich J agreed, said as follows:[62]
It appears to be established by Wheatley v Lambton, Hetton and Joicey Collieries Ltd (1937) 2 KB 426 that if a man who is already totally incapacitated or disabled suffers injury by accident or disease which in itself would totally incapacitate or disable him from work his incapacity cannot be attributed to the second cause. As he was totally incapacitated before and at the time when he encountered the full effects of the second accident or disease which would in itself have sufficed totally to disable him, the latter cannot be said to have incapacitated him. The incapacity, therefore, does not 'result' from the injury. This conclusion appears to be equally applicable when the first and second causes of incapacity are disease or are traumatic injury; when the first is traumatic injury, and the second is disease; and when the first is disease and the second traumatic injury. In Evans v Oakdale Navigation Collieries Ltd (1939) 32 BWCC 51 a man who had been incapacitated by a rib injury was certified to be totally disabled by silicosis. The question was whether he was partially or totally incapacitated by the rib injury. Sir Wilfred Greene MR said that the result of a finding that he was totally incapacitated 'would have been, according to the decision of this Court in the case of Wheatley v Lambton, Hetton and Joicey Collieries Ltd (1937) 2 KB 426 that so long as the total incapacity from the first accident lasted, no compensation could be recovered in respect of the second' (notional) 'accident, although in respect of that second' (notional) 'accident a declaration of liability might properly have been made.'
…
In cases of this description a question will naturally present itself whether a continuing incapacity may not at one time be attributable to one disease as the dominant cause and at another time to another disease as a dominant cause. The effects of the first disease may gradually modify or disappear, so that, if it were not for the second disease, the man would not be totally incapacitated. Where the employer is liable in respect of one of the two diseases and not in respect of the other his liability may perhaps ensue from the replacement of one cause by another, but that question does not arise in the present case. The findings of fact make the case one in which a total incapacity attributable to a disease for which the employer was not liable continued unaffected by the progress of another disease for which he might have been liable, developing to a severity sufficient of itself to cause incapacity.
[62] Dawkins (187 - 188).
In our view, it is important to bear in mind that in Dawkins it had been found that:
(a)by July 1945, the worker had contracted two diseases, each of which rendered him totally unable to work, and that the two diseases were entirely separate and independent;[63] and
(b)the total incapacity due to the first disease continued unaffected by the progress of the second disease.[64]
[63] Dawkins (181 ‑ 182).
[64] Dawkins (188).
All of the judges in Dawkins referred with evident approval to the decision in Wheatley. In that case, the worker was totally incapacitated as a result of an accident arising out of, and in the course of, his employment. Subsequently, he was certified by a medical practitioner to be suffering from a disease caused by his employment. The worker brought proceedings for compensation for total incapacity from the disease while also receiving compensation for the total incapacity resulting from the accident. The Court of Appeal held that he was not entitled to compensation in respect of the disease while the total incapacity from the previous accident continued, because in such circumstances the disease did not result in any loss of his earning capacity. As Slesser LJ put it in Evans v Oakdale Navigation Collieries Ltd,[65] the effect of the decision in Wheatley was that, so long as the worker was totally incapacitated from the spinal injury he had received from the first accident, he could not be regarded as being incapacitated by the disease since he had no capacity left to lose.[66] However, in Wheatley, the court considered that should the worker recover from the injury caused by the first accident, or cease to be totally or partially incapacitated for work as a result of that accident, a declaration of liability in relation to the subsequent disease could be made.
[65] Evans v Oakdale Navigation Collieries Ltd [1940] 1 KB 702.
[66] Evans (707 - 708).
These principles seem to us to apply to the present case in the following way. If it were found that the worker's incapacity due to the knee injury would, without the back injury, have continued to render the worker totally incapacitated for work, then his incapacity could not be said to result from the back injury. If, on the other hand, that was not shown, and if the back injury was a material contributing cause of the incapacity, then the incapacity would result from the back injury. And that would be so even if the knee injury was also a material contributing cause of the incapacity.
The arbitrator proceeded consistently with this analysis. He found that it was sufficient that the back injury made a material contribution to the worker's incapacity, even if the knee injury also made a causal contribution.[67] Thus, we do not accept the appellant's first submission summarised in [48] above.
[67] Arbitrator's reasons [79], [96] ‑ [98].
The arbitrator then proceeded to determine, by reference to various medical reports, that the worker's back injury materially contributed to his incapacity.[68] Neither the employer's appeal to the District Court nor its appeal to this court impugns the arbitrator's analysis of the medical evidence. The requirement in the District Court appeal that the appeal involve a question of law and the requirement that the appeal to this court relates to a question of law may provide obstacles to any complaint of error in the arbitrator's analysis of the effect of the medical evidence. In any event, no such complaint is made.
[68] Arbitrator's reasons [99] ‑ [104].
The appellant's second submission must be rejected on the ground that it assumes a requirement to identify a single 'true cause' of the incapacity. As we have explained, demonstration that an incapacity results from a particular injury does not involve any conclusion that the injury was the primary or true cause above any other possible cause(s). Rather, it is enough if the injury materially contributed to the incapacity, even if another injury or other cause also did so.[69]
[69] See the legal principles set out at [52] ‑ [53] above.
The appellant's fifth submission suffers from the same flaw. It asserts a need to identify which injury caused the incapacity. That assumes or asserts a need to identify a single cause for the incapacity. For the reasons given, there is no such need.
We do not accept the appellant's fourth submission. The arbitrator referred to and distinguished Dawkins. As we have explained, in our view the arbitrator's reasoning was consistent with the principles that emerge from Dawkins. The arbitrator's reasons for distinguishing this case from Dawkins involve matters of fact which depend on his analysis of the medical evidence. No error is asserted or demonstrated in that regard.
The appellant's third submission appears to be an aspect of the fourth submission. To the extent that it is not, it does not assist the appellant. While there can only be one total incapacity, whether an earlier injury continues to be the sole cause of the incapacity, so that a later injury does not result in the incapacity, will depend on the precise findings of fact. As we have said, there is no challenge to the arbitrator's findings of fact.
For these reasons there is no merit in ground 1.
Ground 2
Ground 2 alleges that the primary judge erred in holding that weekly payments should be paid from 16 April 2015 to 9 July 2015 and from 1 December 2015 onwards, when he should have held that the payments should have been made from the date of incapacity, namely 12 April 2011.
The appellant submits that compensation is 'either payable in respect of the first injury and ongoing from that or alternatively, if the second injury is the real cause of incapacity … the incapacity for which payments are to be made should run from the time that that injury caused the incapacity' (emphasis added).[70] The appellant further submits that if it was determined as a matter of common sense that the second accident was 'the cause' of the incapacity, then payments in respect of the first accident should have ceased.[71] The argument advanced proceeds from the premise that it is necessary, in a case where there are two contributing causes, to identify the 'sole' or 'real' cause of the worker's ongoing incapacity in order to determine when payments should have commenced.[72]
[70] Appellant's submissions [18]; appeal ts 5.
[71] Appellant's submissions [19]; appeal ts 5.
[72] Appeal ts 4-6.
These submissions cannot be accepted. Like many of the appellant's submissions in relation to ground 1, these submissions suffer from the flaw of assuming or asserting that an incapacity can have only one cause, the 'real cause'[73] or 'the cause'.[74] As has already been explained, and as is acknowledged elsewhere in the appellant's submissions,[75] more than one cause, including more than one injury, may contribute to an incapacity.
[73] Appellant's submissions [18]; appeal ts 5.
[74] Appellant's submissions [19].
[75] Appellant's submissions [12], [17]; appeal ts 2.
Further, ground 2 alleges that the judge erred in holding that payments should be made from 2015, rather than from the date of incapacity, namely 12 April 2011. The primary judge did not so hold. The arbitrator did, but no ground of appeal before, or submission to, the primary judge challenged that aspect of the arbitrator's decision. In those circumstances, it cannot be said that the judge made any decision, much less erred, as to the day from which the payments should be made.
For these reasons, there is no merit in ground 2.
Both before the primary judge and in this appeal, the employer did not impugn the arbitrator's construction and application of cl 7(3) of sch 1 to the circumstances of this case. For the purposes of cl 7(3), where an incapacity results from two injuries, there may be a question whether the weekly payments made in respect of that incapacity should be treated as payments only for the first of those injuries, as the arbitrator found, or for both injuries. Any such question does not arise in this appeal and, consequently, we express no view on it.
Conclusion
For the reasons we have given, we would refuse leave to appeal and would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH30 APRIL 2018
18
13
1