Florescu v Australian Meat Company
[2018] VCC 2004
•29 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02448
| Peter Florescu | Plaintiff |
| v | |
| Australian Meat Company | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 November 2018 | |
DATE OF JUDGMENT: | 29 November 2018 | |
CASE MAY BE CITED AS: | Florescu v Australian Meat Company | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2004 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Causation
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Murdoch QC and Mr B Hill | Shine Lawyers |
| For the Defendant | Mr J Plunkett | Minter Ellison |
HIS HONOUR:
1 In this application it is conceded by the defendant that the plaintiff presents with a mental impairment of such significance that meets the definition of “severe” employed by the Act which governs the application and that my only task is to determine the issue as to whether the plaintiff has made good his obligation to establish causation.
The approach to be taken in determining causation
2 I am satisfied that in deciding the issue which arises as to causation in this proceeding, I must examine all of the evidence which has been adduced by the parties and make findings on the basis of a reasoned analysis of the evidence as to the facts which I am satisfied the plaintiff has established on the balance of probabilities.
3 It is well established that proof by expert opinion is not required to establish the causal connection between an act and an injury.[1] In this respect, the appropriate approach to the analysis required was set out by the Victorian Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir,[2] wherein Tadgell JA stated:
[1] See Dahl v Grice [1981] VR 513
[2] [1997] 1 VR 125
“… The evidence is to be evaluated as a whole in order to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”
4 I am also guided by the approach taken by the High Court in Adelaide Stevedoring Co Ltd v Forst,[3] in which Rich ACJ, when commenting upon the factual circumstances of that case, said:
[3] (1940) 64 CLR 538 at 563
“I am greatly impressed by the sequence of events. … I do not see why a court should not begin its investigation, ie before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sensed person uninstructed in pathology”
and MacTiernan J emphasised the impossibility of framing a formula to measure probability and the need to give due weight to the facts of the case as distinct from medical opinion.[4]
[4] See Adelaide Stevedoring Co Ltd v Forst (supra) at 573; see also Dahl v Grice (supra) and Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262
5 This approach to the analysis of causation is entirely consistent with that taken by the High Court in Tubemakers of Australia Ltd v Fernandez[5] and the New South Wales Court of Appeal in Bendix Mintex Pty Ltd and Ors v Barnes,[6] where Mason P, in discussing the approach the common law takes as to causation, said:
[5] (1976) 10 ALR 303
[6] (1997) 42 NSWLR 307 at 318
“… the trier of fact is entitled (indeed encouraged) to take a ‘robust and pragmatic approach’ to proof of causation. The inability to call lay or expert evidence that shows the precise way that something has happened is not fatal.”
6 Employing this approach to the analysis required of me, I bear in mind that whilst the plaintiff has the onus of satisfying me on the balance of probabilities that the conduct of the defendant was a cause of the injury suffered by him, the plaintiff need only establish that the workplace injury the subject of this application materially contributed to the cause of his injury, and not that it was the sole cause of the injury.
7 In considering the issue of causation, I also bear in mind the fact that the analysis which is to be applied in determining whether causation has been established to the requisite legal standard may well be different to that applied by a medical practitioner when considering causation in a medical setting, where immediate attention may be focussed upon an obvious precipitating cause and not events which materially contributed to the eventual outcome to a greater or lesser degree.
8 My approach to the analysis required on the issue of causation which arises in this case is further guided by the following authoritative statements:
· In Tabet v Gett,[7] Kiefel J observed:
[7] (2010) 240 CLR 537
“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”[8]
[8] at paragraph [11]
· In ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook,[9] the High Court observed that the field of debate in that proceeding, namely causation:
[9] (2009) 237 CLR 656 (“ACQ v Cook”) at paragraph [14]
“… is one of the most difficult in the law, and one about which abstract discussion is seldom valuable for courts … ”[10]
[10] Ibid
· In the course of its judgment in that case, the Court referred to the judgment in March v E & MH Stramare Pty Ltd[11] and commented that a principal and uncontroversial point established by the Court in March was:
[11] (1991) 171 CLR 506
“… the proposition that there can be multiple causes of the damage suffered by a plaintiff. Further, the context of the passage quoted from Mason CJ’s reasons for judgment in March v Stramare reveals that Mason CJ was concerned merely to reject the ‘but for’ test as an exclusive criterion of causation.”[12]
[12]ACQ Pty Ltd v Cook at paragraph [27]
and confirmed that the relevant test with respect to causation is that as stated by the Court in Wardley Australia Ltd v State of Western Australia,[13] namely:
[13] (1992) 175 CLR 514
“… 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. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.”
9 In Roads and Traffic Authority v Royal & Anor,[14] Kirby J listed the common-law principles that have been accepted by the High Court:
[14] (2008) 245 ALR 653
“… as governing decisions on contested issues of causation in relation to claims framed in negligence.”[15]
[15] at paragraph [79]. Whilst his Honour was in the minority, no issue arises as to this statement of general principle
10 Insofar as they are relevant to the present proceeding, the principles are as follows:
(i) “causation is essentially a question of fact … the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience.”[16];
[16] at paragraph [81]
(ii) “the burden of proving causation-in-fact … is on the claimant. The standard of proof that must be met is the balance of probabilities.”[17];
[17] at paragraph [82]
(iii) “whilst the ‘but for’ test may be useful in defining the outer limits of liability where causation is contested, it is “not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations”.”[18];
[18] at paragraph [83]
(iv) “where … several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant’s damage, the resolution of the contest presents a question of fact that is itself to be decided by reference” to the following considerations:
· The search is not confined to ‘the’ cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage; and
· If a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have “materially contributed” to the result, and in this sense if one activity is found to have materially contributed to the loss and damage suffered, it is a cause of the loss and damage despite other factors having played an even more significant role in producing that loss and damage.[19]
(v) “The way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts.”[20]
[19] at paragraph [85]
[20] at paragraph [88]
11 Finally, in Pledge v Roads and Traffic Authority,[21] Hayne J considered the many factors which might be said to be the cause of an event, and commented:
“The distinction is not to be found by attempting to identify the cause of the event. Examination will usually reveal that the event came about as the result of a complex mixture of acts or omissions. It may be right to say of each of those acts or omissions that, but for its happening, the accident would not have happened as it did. It would be wrong, however, to argue from that observation to a conclusion that one or other of those acts or omissions (for example, the driver's failure to keep a proper lookout) is to be given special significance. Equally, it would be wrong to argue from the identification of every act or omission which played a role in the accident happening as it did to the conclusion that legal responsibility attaches to all of those responsible for every one of those acts or omissions. As Windeyer J said in Faulkner v Keffalinos,[22] ‘lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence.’
[21] (2004) 205 ALR 56
[22] (1971) 45 ALJR 80 at 86
12 In assessing the issue of causation, I apply the approach to my analysis of the evidence as set out in the authorities to which I have referred.
13 Essentially it is the position of the defendant that causation is not made out for three reasons:
(i) first, the plaintiff presented with a pre-existing psychiatric condition which requires disentangling;
(ii) second, the delay in the plaintiff seeking treatment with respect to the condition with which he now presents suggests the relationship between the condition and the compensable injury which he has suffered in this instance is tenuous; and
(iii) third, the presence of a number of factors identified in the report of Cara Charmers[23] which include:
[23] PCB p 40.
a) the breakup of his family and his denial of access to a number of his children;
b) the serious illness of his daughter;
c) the fact that he has been charged with offences involving assault upon his neighbour and has been the subject of intervention orders; and
d) financial difficulties associated with his WorkCover claim
are such that they significantly impact upon the issue of causation.
14 When pressed upon the issue in closing address, however, Counsel for the defendant did not assert that the plaintiff did not suffer the compensable injury the consequences of which continued to be a cause in the material sense of his current incapacity.
15 It was asserted by Mr Plunkett of Counsel who appeared on behalf of the defendant that, notwithstanding my satisfaction that the plaintiff’s work place injury, when considered in the absence of any other factor, continues to materially contribute to his agreed incapacity, I am required to disentangle the influence of any other cause of that incapacity. I am satisfied that this position is devoid of merit and involves a misstatement of the law which I am to apply.
16 It is clear that the approach which I should take upon the issue of causation is that described by the Court of Appeal in Zlateska v Consolidated Cleaning Services Pty Ltd NRMA Workers Compensation (Vic) Ltd[24] in which Aims J commented:
[24] Unreported [2006] VSCA 141, [8]-[9]
“Where it can be shown on the balance of probabilities that the act or omission of the employer was a cause of the injury, the worker will have established a sufficient connection to their employment to characterise the injury as “arising out of” their employment.
…
The question of causation is a matter of common sense. It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury… “
17 In my opinion, should the evidence satisfy me that the compensable psychiatric injury suffered by the plaintiff continues to cause in a material way the disability with which he currently presents (the severity of which, as I have said, is not put in issue by the defendant ), the plaintiff is entitled to the leave which he seeks in this instance.
18 Adopting this approach to the analysis of the three positions put on behalf of the defendant my findings are as follows:
(i) There is no issue that, in the course of his employment with Southern Meats before he commenced his employment with the defendant, the plaintiff presented to his general practitioner on 5 March 2013 with a history of being bullied at work. In the course of his evidence the plaintiff explained that that issue arose by reason of his wish to attend the medical treatment required by his daughter and his supervisor’s attitude to that wish.
There is no issue:
· that the plaintiff’s general practitioner provided him with a letter for his employer and that in the plaintiff’s opinion “that issue got rectified;
· the plaintiff subsequently continued in his employment with Southern Meats, and subsequently commenced his employment with the defendant which he maintained until the development of the compensable injury the subject of this application;
· there is an absence of any evidence that the plaintiff was suffering from any symptoms or disability associated with an emotional injury or illness during the period between March 2013 and 28 April 2015. Further there is no evidence that the plaintiff developed any symptoms which could be diagnosed as being consistent with the presence of a psychiatric injury in or about March 2013.
In the above circumstances I am satisfied that the plaintiff was not presenting with any symptomatic pre-existing condition the consequences of which require any aspect of “disentangling” in this instance.
(ii) As to the position put on behalf of the defendant that there was some delay between his cessation of work on 28 April 2015 and his presentation to a medical practitioner for treatment of the psychiatric illness, in my opinion there is no merit in that position for the following reasons:
· the plaintiff presented to Ms Chambers, a clinical neuropsychologist, in June 2015 for treatment with respect to the workplace bullying the subject of this application;
· there is a complete absence of any medical opinion which supports the defendant’s argument on this point; and
· it is the unanimous position of every doctor who has opined in this instance, including the Medical Panel, that the plaintiff suffered a compensable injury. which the Medical Panel described in its decision of 24 May 2017 as involving an “adjustment disorder with mixed disturbance of mood and behaviour“.
(iii) Finally as to whether the psychiatric injury suffered by the plaintiff in the course of his employment with the defendant currently operates such as to materially contribute to the incapacity with which the plaintiff presents it is my opinion that the medical evidence in support of that position is overwhelming.
For the sake of avoiding doubt that evidence can be found in the opinions expressed by:
· the plaintiff’s treating psychiatrist at PCB 34;
· the plaintiff’s treating psychologist at PCB 53;
· the Medical Panel at PCB 70;
· Dr Kaplan at PCB 92;
· Dr Grant at PCB 101;
· Dr Paoletti at PCB 136;
· Dr Sendipathy at DCB 11.
In reality the lone voice in support of the defendant’s position is that of Dr Mendelson. I find his position to be unpersuasive not only for the reason that he has no support and is contrary to all the other medical opinions to which I have referred above, but also by reason of the fact that I find the plaintiff’s treating psychiatrist and psychologist to be far better placed to opine on that issue given their long-term relationship with the plaintiff.
19 Finally, although there is no necessity for me to determine this issue, taking the approach to causation to which I have referred above it seems likely to me on the balance of probabilities that the majority of the so-called independent stressors which the defendant has identified in the course of closing submissions have arisen as a consequence of the compensable injury with which he presents I make that statement taking into account:
(i) the relative stability of the plaintiff’s employment and life;
(ii) the fact that the emotional pressure to which the plaintiff was exposed by reason of the illness of his daughter did not impact upon his ability to work for either Southern Meats or the defendant.
20 For these reasons I am satisfied that the plaintiff is entitled to the relief sought in this instance.
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