Kaiser v Burswood Resort (Management) Ltd

[1999] WASCA 292

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   KAISER -v- BURSWOOD RESORT (MANAGEMENT) LTD [1999] WASCA 292

CORAM:   PIDGEON J

WALLWORK J
MURRAY J

HEARD:   24 NOVEMBER 1999

DELIVERED          :   17 DECEMBER 1999

FILE NO/S:   CIV 1890 of 1999

BETWEEN:   KATJA KAISER

Applicant

AND

BURSWOOD RESORT (MANAGEMENT) LTD
Respondent

Catchwords:

Application for leave to appeal - Decision of Compensation Magistrate under Workers' Compensation and Rehabilitation Act 1981 (WA) - No arguable error of law by Magistrate in respect of the sufficiency of the reasons of the review officer - Decision in which reliance was placed upon some expert evidence in preference to other such evidence involved no error of law

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA) s 5, s 84ZW

Result:

Application for leave to appeal refused

Representation:

Counsel:

Applicant:     Mr M T Ritter

Respondent:     No appearance

Solicitors:

Applicant:     Chapmans

Respondent:     No appearance

Case(s) referred to in judgment(s):

Charleston v Smith [1999] WASCA 261

Hughes v Gales (1995) 14 WAR 434

Case(s) also cited:

Nil

1. JUDGMENT OF THE COURT:  The applicant has made an application under the Workers' Compensation and Rehabilitation Act 1981 (WA) against the respondent. She seeks a determination of liability and weekly payments of compensation for total incapacity from 10 July 1998 and continuing. A dispute has arisen as to the respondent's liability to make weekly payments of compensation and to pay statutory allowances. The dispute is as to whether the disability of the applicant, a back injury or condition, is compensable under the Act in that, although there is a degenerative condition of the spine, her employment by the respondent was a contributing factor to the recurrence, aggravation or acceleration of her condition to a significant degree as required by par (d) of the definition of "disability" in the Act, s 5(1).

2. Under s 5(5), in determining whether the employment contributed or contributed to a significant degree to the recurrence, aggravation or acceleration of the condition said to constitute the disability, the following are to be "taken into account":

   "(a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment;

   (d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease;

   (e)matters affecting the worker's health generally; and

   (f)activities of the worker not related to the employment."

3. In accordance with the provisions of the Act the matter in dispute went before a review officer who on 19 March 1999 dismissed the application for compensation. Under the Act, s 84ZN there is a right of appeal from that decision to a Compensation Magistrate's court "where a question of law is involved". The applicant did appeal to a Compensation Magistrate, but on 21 July 1999 her appeal was dismissed. She now seeks leave to appeal to the Full Court against that decision under s 84ZW which provides for an appeal by leave "on a question of law".

4. As a general guide, for this Court to exercise its discretion to grant leave, it must be shown that the decision of the Compensation Magistrate was wrong or at least attended by sufficient doubt to justify the grant of leave and in addition, it must be shown that substantial injustice would be done by leaving the decision unreversed:  Hughes v Gales (1995) 14 WAR 434 per Malcolm CJ at 439.

5. The first ground upon which leave is sought is that the Compensation Magistrate erred in law in holding that the review officer complied with s 5(5) of the Act in the way he dealt with the matters enumerated there. Specifically, the contention is that the review officer "failed to provide any analysis of each of the requirements" of s 5(5) in his reasons for decision.

6. The review officer correctly set out the matter in dispute and he referred to the relevant statutory provisions. He then reviewed the evidence, touching upon, and making findings about, each of the matters referred to in s 5(5) to the extent that they were the subject of evidence. He said that having regard to her evidence and the medical opinions which he accepted and preferred, the applicant was unable to satisfy him that her employment had significantly contributed to the aggravation, recurrence or exacerbation of her lower back condition. He therefore dismissed the application.

7. The learned Magistrate referred himself to a decision of another Compensation Magistrate in a case called Main Roads of Western Australia v Latta, given on 4 February 1997, in which there was a discussion about the extent to which reasons were to be provided. It was there held that it was insufficient to simply list the matters set out in s 5(5) and then state that they had been considered. It was said that more detailed reasons were required to enable the parties to ascertain why the review officer reached the conclusion about causation which he did. His Worship held:

   "The review officer has clearly set out the provisions and all of the provisions, where relevant, have been considered in the review officer's decision.  The review officer refers to the duration of the employment and to the times when the back pain developed.  He has set out in some detail the nature of the particular tasks involved in the employment and the applicant's evidence as to her duties, the number of hours involved and the breaks that were given.  The likelihood of the condition occurring despite the employment was an essential issue in the medical evidence considered by the review officer.  There was no suggestion that there were any hereditary factors other than the identification of her pre‑existing degenerative state.  The matters affecting the worker's health generally were again considered by the review officer in his consideration of the pre‑existing condition.  In relation to activities of the worker not related to the employment there does not appear to have been any evidence of any relevant activity save the effects of the smoking which were considered by the medical practitioners.  Given that the review officer has addressed these issues within the body of his decision and that it is clearly apparent from his decision as to why he has found that the employment has not contributed to a recurrence, aggravation or acceleration of her low back condition the appellant has not established any error of law."

8. For our part we are unconvinced that there is any arguable case that in so holding the learned Magistrate himself committed any error of law. The review officer did far more than merely list the factors to be taken into account as specified in s 5(5), and he did not merely say that he had considered these matters. He discussed these factual issues on his way to the conclusion that causation had not been established and he did so in the context of his consideration of the medical evidence.

9. This Court has very recently said in Charleston v Smith [1999] WASCA 261, delivered on 19 November 1999, that it may be an error of law if the judgment of a court fails to sufficiently expose the reasoning which leads to all relevant and necessary findings. That will not be accomplished if all that is done is to set out the evidence of the various witnesses and then proceed to make findings without any substantial analysis of the process of reasoning leading from the recitation of the evidence to the conclusions expressed by way of findings. The test is whether the reasons are so deficient as to fail to expose the reasoning of the court in such a way as will enable a party having a right of appeal conferred by statute to challenge the reasoning on appeal. If that is the result, then the deficiency in the reasons itself constitutes an appellable error of law in that the result is effectively to deprive the party of the right of appeal: per Malcolm CJ at par [36] and par [37].

10. In our opinion, applying that test to this case, it is not arguable that the learned Compensation Magistrate erred in law by holding that the reasons of the review officer met that test by sufficiently exposing his reasoning.

11. The other two grounds upon which it is said that the learned Magistrate erred in law may be taken together.  They amount to the contention that an error of law was made in that the whole of the medical evidence was not considered by the review officer who excluded from his consideration certain reports, and only had regard to others.  The error of law alleged to have been made by the learned Magistrate is his failure to recognise the error of law on the part of the review officer. 

12. The matter arises in this way.  The review officer considered the evidence of the applicant.  He said that she offered no particular trauma at work as causative, but said that her condition had arisen from standing on her feet and from the bending and twisting involved in the performance of her duties as a croupier.  The review officer said that in considering causation he gave "relatively little weight" to the medical opinions of doctors who were not aware of the applicant's pre‑existing condition. 

13. In addition, it is clear that he found unpersuasive the reports of the applicant's general practitioner, Dr de Kauwe, who reported that she had first treated the applicant for low back pain in September 1994, in the latter part of that year and early in the following year, last seeing her on 21 February 1995 following which there was no complaint of back pain until 18 July 1996 when the applicant complained that she had hurt her back on the previous day: "Presumably work related.  She did not describe what specific action at work caused her pain.  I presume that her work as a croupier which involves long hours of stretching and bending could have caused this pain."  Dr de Kauwe then described that after an exercise programme was prescribed to strengthen the applicant's back muscles, she did not present for treatment for back pain from August 1996 until December 1997 when Dr de Kauwe referred her to a specialist.  Against that background Dr de Kauwe made a further report that the applicant's ultimate incapacity "has resulted from her work‑related accident of 16/7/97 whilst employed by Burswood Casino."  The review officer considered this evidence, but clearly did not find it persuasive. 

14. In making his ultimate findings of fact he again said that, "I have discounted the views on causation of doctors unaware of the previously symptomatic lower back.  Having so culled I was left with the views of Mr Lee and Doctors Connaughton and Gillett."  Mr Lee supported the applicant's case in relation to causation.  The review officer explained why he was not prepared to rely upon Mr Lee's opinion and why he preferred the evidence of Doctors Connaughton and Gillett who were occupational physicians.  He said he accepted the views of those doctors as the "most informed opinions, both in terms of the biomechanics of the workplace and in terms of their understanding of the medical history of the worker." 

15. The learned Magistrate thought that process of reasoning involved no error of law.  We think, with respect, that that is correct.  As the learned Magistrate put it, all that had occurred was that the review officer, not being bound to accept all the evidence, had determined to reject a portion of the medical evidence and had given his reasons for doing so.  If those reasons were arguably wrong, about which we express no opinion, then that is a contention that an error of fact was made.  That could not be a ground of appeal from the review officer to the Compensation Magistrate and it may not be a ground upon which leave to appeal to this Court from the Compensation Magistrate may be granted.

16. In our opinion, for those reasons, the application for leave should be refused.