Hart v Comcare

[2005] HCATrans 1028

[2005] HCATrans 1028

IN THE HIGH COURT OF AUSTRALIA

Registry  No C8 of 2005

B e t w e e n -

OLGA HART

Applicant

and

COMCARE AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 DECEMBER 2005, AT 9.37 AM

Copyright in the High Court of Australia

MR J L. GLISSAN, QC:   If the Court please, I appear with my learned friend, MR A. ANFORTH, for the applicant.  (instructed by Elrington Boardman Allport)

MR G.M. WATSON:   May it please the Court, I appear with, MR B.H.J. DUBE, for the respondent.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Glissan.

MR GLISSAN:   If the Court please, your Honours, we say that this very narrow issue on the interpretation and proper construction of section 4 of what I might term if I can the SRC Act is a matter which requires special leave.  It is both important.  It is of very broad application in the Commonwealth generally, not only this Act but a number of other statutes adopt the same definition of “injury”, and that this case is peculiarly an appropriate vehicle for the determination of the important issue that is raised.

Perhaps if I can deal with that latter point first, the vehicle point, your Honours, is that the issue is starkly thrown up by the findings of fact by the AAT Member, Member Mowbray, between pages 24 and 25 of the application book.  I do not ask your Honours to go to it but in essence what was determined was that the illness or disease – depending on how it is described – from which the applicant suffered was brought about by a number of contributing causations, a number of which were clearly injuries within the meaning of section 4, however it is read.

Indeed, the way the section is structured all of them were injuries within the meaning of the section subject to the exemption clause or the privative clause or the proviso, however one likes to describe it, that appears at the end.  It was determined by the Tribunal member that that was made good, that one of those causes fell within the proviso to section 4 and that notwithstanding that because there were some causal elements which were clearly compensable the applicant was entitled to succeed.

GLEESON CJ:   What do you say about paragraph 11 in the judgment of Justice Whitlam on page 44 of the application book?

MR GLISSAN:   Yes, thank you, your Honour.  That was resolved in our favour in the Full Court of the Federal Court from which there is no appeal.  The so‑called spurious distinction to which his Honour referred was picking up an expression that had occurred in earlier cases but the Full Court of the Federal Court in this case – if I can take your Honours to it quickly – determined that at paragraph 26, at the bottom of page 59 of the book ‑ ‑ ‑

GLEESON CJ:   Yes.

MR GLISSAN:   So not necessarily inappropriate, disposes of Justice Whitlam’s spurious distinction, and they go on to deal with it in terms further on, so that that really answers, I trust, your Honour the Chief Justice’s question.

GUMMOW J:   But one has to bear in mind what they had earlier said in the Full Court at paragraph 21, do you not, on page 59, paragraphs 21 and 22?

MR GLISSAN:   Yes, one does.

GUMMOW J:   That is the reasoning.

MR GLISSAN:   Indeed, that is really the thrust of the argument, your Honour, because the proviso is expressed in terms of causation or in terms of the commonly used “in causation”, “something which results from” is the term that is used in the proviso to section 4.  It is quite clear – and this is one of the reasons we say it is important – that minds who have given this close attention can differ and differ substantially.  Your Honours have been referred to Justice Drummond in Mooi, to that of Justice Heerey in the case of Trewin and to that of Justice Priestley in the collateral but very similar provision in the Northern Territory legislation in Rivard.  Each of those judges took the view that where there were multiple causations and one of those would bring the worker properly within the provisions of section 4 in the definition of “injury”, that was sufficient.

Now, your Honour, if I may say, that is consistent with the general approach that the law in Australia takes to causation.  Where there are multiple competing causations – I do not mean to take your Honours to something that is neither on the list nor even current law, but I had occasion when I preparing this case to look at the 1966 edition of Glass and McHugh, and in a slightly different context because there they were talking about multiple defendants, but if you substitute “causal factors” what was there expressed to be the law and has remained the law ever since, the factors causally relevant to the plaintiff’s damage will often be multiple.

Normally, the acts of both combine to produce the damage so that the contribution of each is necessarily a sine qua non in the production of damage.  As responsibility for part of the cause is sufficient to attract liability each is severally responsible for the whole.  Now, if that general proposition is applied to the statute ‑ ‑ ‑

GUMMOW J:   The Full Court was aware of those cases and said at the end of paragraph 22 ‑ ‑ ‑

MR GLISSAN:   Indeed, and so was Justice Drummond and Justice Heerey and Justice Priestley.  We do not say that the interpretation taken by the Full Court was not an interpretation that was open.  It is a case where minds can differ.  It is a case where the Full Court has pronounced in a way which deprives large numbers of workers of the opportunity of obtaining compensation in circumstances where the major part of their injury may flow from compensable causes, but a minor but materially contributing part may be said to be something from which the injury results, and they are deprived then of the opportunity to obtain compensation.

In those circumstances, we say first of all, the Full Court’s reasoning is neither a purposive construction of the statute, nor is it consistent with the general policy of the law or the general policy of the statute.  We say that this is matter which should be fully ventilated in this Court so that the matter can be put finally to rest.  If the interpretation taken by the Full Court is correct then, with respect, we say let this Court say so.  If it is not, we say, this is a vehicle which is an appropriate one for this Court to determine that issue.

Really, I know, 20 minutes is a long time when one is making a special leave application but in one as short as this one would almost say the whole appeal could be argued in 20 minutes.  It is a very, very narrow point.  That is the point we make.  Now, beyond urging that the review of the law is necessary, beyond telling your Honours anecdotally that we made inquiries and that there are somewhere between 10 and a dozen cases pending determination in the AAT just in the Canberra registry based on the result of these proceedings, it can be readily seen that this is not a small matter.  It is a matter which has profound effects across the community and it is one which needs resolution, in our submission.  Your Honours understand the point.  There is nothing more I can say.

GLEESON CJ:   Thank you, Mr Glissan.  We do not need to hear you, Mr Watson.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is dismissed with costs.

AT 9.46 AM THE MATTER WAS CONCLUDED