Kanowna Belle Goldmines v Feierabend

[2003] WASCA 246

KANOWNA BELLE GOLDMINES -v- FEIERABEND [2003] WASCA 246

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 246
Court:	THE FULL COURT (WA)
Case No:	FUL:165/2001	Heard:	14 MAY 2003
Coram:	MURRAY J PARKER J WHEELER J	Delivered:	14/10/03
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	KANOWNA BELLE GOLDMINES RONALD WARREN FEIERABEND
Catchwords:	Workers' compensation Appeal from Compensation Magistrate's Court Multiple contributing causes of worker's psychiatric condition Whether psychiatric condition 'results from' work-related injury Legal test of causation Disability , whether psychiatric condition which is a disease may be within par (a) of the definition of disability
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, definition of "disability", s 5(4)
Case References:	Cole v P & O Ports Ltd [2002] WASCA 157 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Harwood v Wyken Colliery Co [1913] 2 KB 158 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KANOWNA BELLE GOLDMINES -v- FEIERABEND [2003] WASCA 246 CORAM : MURRAY J

PARKER J
WHEELER J

HEARD : 14 MAY 2003 DELIVERED : 14 OCTOBER 2003 FILE NO/S : FUL 165 of 2001 BETWEEN : KANOWNA BELLE GOLDMINES

Appellant (Respondent)

AND

RONALD WARREN FEIERABEND
Respondent (Appellant)

Catchwords:

Workers' compensation - Appeal from Compensation Magistrate's Court - Multiple contributing causes of worker's psychiatric condition - Whether psychiatric condition 'results from' work-related injury - Legal test of causation - Disability , whether psychiatric condition which is a disease may be within par (a) of the definition of disability

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, definition of "disability", s 5(4)

(Page 2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant (Respondent) : Mr D R Clyne
Respondent (Appellant) : Mr B L Nugawela

Solicitors:

Appellant (Respondent) : McAuliffe Williams & Partners
Respondent (Appellant) : D'Angelo & Partners

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

Cole v P & O Ports Ltd [2002] WASCA 157
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Harwood v Wyken Colliery Co [1913] 2 KB 158
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212

Case(s) also cited:

Nil


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1 MURRAY J: I respectfully agree with Parker J that, for the reasons given by his Honour, this appeal should be dismissed. I have nothing to add.

2 PARKER J: This is an appeal from a decision of a Compensation Magistrate, Mr J R Packington SM which was given in the Compensation Magistrate's Court on 11 September 2001. By his decision the learned Magistrate allowed an appeal from a review officer and remitted the matter to the review officer for further consideration.

3 The decision of the review officer was in respect of an application of the respondent which was dated 16 November 1999 and filed with the conciliation and review directorate on 19 November 1999. It sought a reference of a dispute between the respondent and the appellant for conciliation. This dispute arose in respect of what was an acknowledged injury to the right knee of the respondent in the course of his work with the appellant on 21 May 1997. At that time the respondent had been employed as a process technician by the respondent.

4 Conciliation was unsuccessful so that the respondent's application was referred to review and after a preliminary hearing a review hearing was conducted by the review officer on 13 February 2001. The review officer, Mr D K Spivey, published detailed and extensive reasons on 19 February 2001.

5 It is not in dispute that the respondent injured his right knee on 21 March 1997 whilst at work and that this was a personal injury by accident arising out of or in the course of his employment with the appellant and, as such, a disability giving rise to liability in the respondent to make weekly payments of compensation pursuant to the Workers' Compensation and Rehabilitation Act 1981 ("the Act") during any resulting period of incapacity. As indicated in par 5 of the reasons of the review officer the respondent suffered ongoing knee pain following the injury in March 1997 which pain became so severe in July 1997 that he sought further medical treatment and was subsequently referred to an orthopaedic surgeon. This led to arthroscopic surgery in July 1988 which resulted in an improvement to his condition. However, it is contended that in March 1999 the pain reappeared and has generally persisted since, though fluctuating in severity from day to day.

6 Critical to this matter is the respondent's claim that as a result of the pain he developed depression. It appears that he had suffered from

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depression in 1990, but he says this was successfully treated over a period of a few months. The existence of the depression following March 1999 is the subject of conflicting specialist medical reports. There is considerable divergence in the psychiatric and psychological reports that were before the review officer as to the cause of the claimed depressive condition. In these reasons it will be convenient to refer to the depression as a "psychiatric condition" although the evidence may variously support the view that it is a psychiatric or psychological condition.

7 It was the claim of the respondent before the review officer that he suffered the psychiatric condition as the result of his knee disability and that the psychiatric condition resulted in his being totally incapacitated for work from 15 November 1999. He therefore claimed weekly payments of compensation together with statutory allowances. That claim was disputed by the appellant on the basis that the psychiatric condition was not causally related to the right knee disability. After a very thorough review of the medical evidence that was placed before him the review officer dismissed the respondent's application. In the words of the review officer in his written reasons:

"38 …In my view the evidence suggested there were many factors identified as the cause of the applicant's psychiatric condition such that I am unable to accept that this condition resulted from this painful knee disability as contend (sic contended) by him. The application of the applicant therefore fails and his application is dismissed."

8 A number of issues were raised before the learned Compensation Magistrate in respect of the decision of the review officer. For present purposes, however, the essential point of decision of the Magistrate was that in dismissing the application the review officer had applied an erroneous test of causation.

9 Before this Court it is also argued that the learned Magistrate ought to have dismissed the appeal from the review officer because the notice of appeal to the Magistrate did not raise a question of law as required by s 84ZN(2) of the Act. The learned Magistrate recognised this deficiency but was persuaded, as a matter of discretion, to allow an amendment to add words to overcome the deficiency, in particular because the present appellant had not been embarrassed by the originalground. I am not persuaded by the arguments that the Magistrate erred in allowing this amendment, nor by the consequent argument that even

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the ground as amended failed to disclose a question of law. I readily accept that the amended ground is less than elegant in its formulation but its intent and the point of law which it seeks to agitate are clearly enough revealed.

10 The real point of substance, both before the Magistrate and before this Court, is the question whether the review officer applied the wrong test of causation in rejecting the claim of the respondent founded in the psychiatric condition. In his reasons the review officer said:

"36 It is clear from all this evidence that the doctors and psychologists identified many causes of the applicant's psychiatric condition. Indeed most of those causes did not relate to the right knee injury or pain from that injury, but included his difficulty in relation to his rehabilitation, increasing conflict with his employer, hospitalisation for a chest condition, staffing and communication problems at his employment, the stress created and existing in his workplace, problems with the company being bought out, having to apply for a new position and difficulties he was experiencing in getting financial assistance to continue treatment.'

37. It seems to me that for the applicant to be successful in this application he was required to demonstrate that the cause of his psychiatric condition was as a direct consequence of his physical right knee injury, that is to say the psychiatric condition was a sequelae of that knee injury."

38. The weight of the evidence simply does not support that proposition. …"

The balance of par 38 of the review officer's reasons have been set out earlier.

11 In the context of the Act, the issue for the review officer to determine was whether the psychiatric condition, which had prevented the respondent from working since 15 November 1999, resulted from the disability suffered by the respondent by virtue of the injury to his right knee on 21 May 1997. This is an issue of causation. The Act describes this causal connection by the phrase "results from"; see thedefinition of "disability" in s 5, s 18, s 21 and cl 7(1) and (2) of Schedule 1 to the Act.
(Page 6)

12 The nature of this causal connection and the test to be applied was considered by this Court in Cole v P & O Ports Ltd [2002] WASCA 157, in particular in the joint reasons of Murray and Wheeler JJ at [20] – [23]. It is sufficient to note the following extracts from what their Honours said:

"[21] At one time it was thought that the use of the phrase 'results from' confined the relevant question of causation to the ascertainment of a direct or proximate cause of incapacity, but that notion was finally set to rest, at least by the persuasive decision of the Court of Appeal of NSW in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as his Honour then was) said, with the agreement of Sheller JA and Powell JA at 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.'

…

[22] To return workers' compensation law in relation to causation to that state is to place it on all fours with the general law of causation stated in relation to negligence cases by the High Court in the leading authority of March v Stramare Pty Ltd (1991) 171 CLR 506. The headnote of that case accurately summarises the effect of the judgments of the majority by saying that, 'causation is essentially a question of fact to be answered by reference to commonsense and experience and one into which considerations of policy and value judgments necessarily enter. The 'but for' or causa sinequa non is not a definitive test of causation.' That approach to the question has since been adopted in

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many cases concerned, not only with the question whether a plaintiff's injury was caused by a defendant's negligence, but also with the question whether damages claimed were caused by a plaintiff's injury.

[23] This approach to the question of causation under workers' compensation legislation has been adopted by this Court recently in Leggett v Argyle Diamonds Pty Ltd [2000] WASCA 182 … which was concerned with the question whether incapacity was caused by a number of injuries or disabilities, including some which were compensable, and in which it was held that provided work-related injury was a material contributing cause to the incapacity, it would be proper to conclude that the incapacity resulted from the compensable disability. In other words, that was a case where there might be found to be a number of contributing causes to an incapacity for work. …"

The third member of the Court, Wallwork J, in separate reasons expressed similar views, in particular, at [4] – [6]. At [5] his Honour relied on the statement of Bray CJ in Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212 at 215 that:

"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 …"

In support of that last proposition, which Bray CJ regarded as "established" in the field of compensation law, the learned Chief Justice cited, in particular, Harwood v Wyken Colliery Co [1913] 2 KB 158 and Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 per Taylor J at 635.

13 Thus, where there is more than one possible cause of an incapacity it is sufficient for the purposes of the Act that the disability resulting from the work injury be a material contributing cause. That issue is to be determined as a matter of fact in light of the circumstances of the particular case when those circumstances are assessed by a process of commonsense evaluation of the causal chain. It follows, of course, that there may be more than one cause contributing to an incapacity.
14 It is apparent from the reasons of the review officer that the medical evidence he had to consider supported the view that more than one matter was a contributing cause to the incapacity of the respondent

(Page 8)

which he was considering. This was well recognised by the review officer. It was therefore necessary for him to determine whether the disability resulting from the 21 March 1997 injury to the right knee was a material contributing cause in the sense indicated. The relevant passages from his reasons have been quoted earlier. In the course of submissions more than one possible interpretation of the review officer's reasons was advanced. Even so, the more probable effect of what he said in [37] is that he was applying a test which reflected the notion of a direct or proximate cause, and that his attention was focussed primarily on discerning what was the one cause of the psychiatric condition and its resulting incapacity for work. In this respect I would refer, in particular, to his words that it was for the present respondent "… to demonstrate that the cause of his psychiatric condition was as a direct consequence of his physical right knee injury …" (emphasis added). Further, in [38] the review officer said "… there were many factors identified as the cause of the applicant's psychiatric condition …". The use of the definite article in the two passages cited is strongly suggestive of the view that the review officer was seeking to determine whether the injury to the right knee was demonstrated by the evidence to be the single cause of the respondent's psychiatric condition. Given the nature of the evidence, which he had carefully recited, it is clear that that was not the position. Hence, the review officer concluded in [38] that he was unable to accept that the psychiatric condition resulted from the injury to the right knee.

15 While the issue may be one of expression rather than substance, I am unable to be satisfied that the review officer posed the correct legal question. Rather, his reasons indicate to me that he has, in fact, applied an incorrect legal test to the critical issue.

16 This was the view reached by the learned Compensation Magistrate on appeal from the review officer. I respectfully agree with the conclusion of the learned Magistrate. For this reason, alone, it is my view that the matter must be remitted to the review officer for further consideration in light of these reasons. The decision of the learned Magistrate was correct in this result.

17 Ground 3 of the grounds of appeal raises, however, a more fundamental issue in respect of the approach of the Compensation Magistrate. This ground draws attention to the definition of disabilityin s 5 and the provisions of s 5(4) of the Act. In s 5 "disability" is defined to mean:

(Page 9)

"(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;

(b) a disabling disease to which Part III Division 3 applies;

(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;

(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 disabling loss of function to which Part III Division 4 applies,

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,"

Subsection (4) of s 5 provides:

"For the purposes of the definition of 'disability', the matters are as follows –

(a) the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment;

(b) the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and

(c) the worker's expectation of


(i) a matter, or

(ii) a decision by the employer in relation to a matter,

referred to in paragraph (a) or (b)."

Also material is the further definition in s 5 –

(Page 10)

"'disease' includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development."

18 The submission of the appellant, in essence, is that, to approach the relevant incapacity of the respondent for work by posing the question whether the disability arising from the 21 March 1997 accident to his right knee was a material contributing cause of that incapacity, is to misconstrue or overlook relevant provisions of the Act, in particular the meaning of "disease". And further that to do so circumvents the concluding provisions of the definition of disability in respect of "a disease caused by stress", and the effect of s 5(4) of the Act. In short, it is submitted that the psychiatric condition of the respondent should properly be characterised as a disease caused by stress for relevant purposes, and that it is therefore first necessary that s 5(4) be considered and satisfied before the psychiatric condition may properly be treated as a disability. The appellant submits that this was not adverted to by the review officer or the learned Compensation Magistrate and, further, that if this were done the psychiatric condition relied on by the respondent would not be established to be a disability for the purposes of the Act. At the least, it is submitted, it is necessary for the review officer to follow this process on any further consideration of the respondent's application.

19 The circumstances of this case do not involve either Part III Division 3 or Part III Division 4 of the Act, so that par (b) and par (e) of the definition of disability in s 5 may be put aside. The appellant's submission requires the view that, to be compensable, the respondent's psychiatric condition must come within the scope of par (c) or par (d) of the definition of disability, and not be a disease caused by stress within the concluding provisions of that definition when read with s 5(4). This approach, requires that for a disease within the meaning of the Act to be compensable as a disability, it must come within the scope of one of the paragraphs of the definition of disability that make express provision in respect of a disease, ie par (b), par (c) and par (d), and is not caught by the exclusion. On this approach the incapacity of the respondent for work from November 1999 must be approached as a fresh disability which, if established, gives rise, in itself, to an entirely new liability in the appellant employer to pay compensation.

20 In a case where the medical evidence supports such an approach, it would appear open to a worker who, for the first time, suffered or contracted a disease, being a mental ailment, disorder, defect, or morbid condition to which the employment was a "contributing factor and

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contributed to a significant degree", to claim, pursuant to par (c) of the definition of disability, that a disability within the meaning of the Act had occurred by virtue of his suffering or contracting that disease and to seek compensation from the employer as a consequence. Paragraph (d) would be applicable in the case of a recurrence, aggravation or acceleration of such a pre-existing disease.

21 It does not necessarily follow, however, that this is the only way in which a disease, being a mental ailment, disorder, defect, or morbid condition or a recurrence, aggravation or acceleration of such a disease, can be claimed pursuant to the Act. The submission of the appellant appears to treat the paragraphs of the definition of disability in s 5 as conjunctive, so that if a disability is a disease within the meaning of the Act it must come within one of the paragraphs which deal specifically with disease. A material difficulty with that approach to the construction of the definition of disability is the disjunctive "or" which is the concluding word of par (d). The effect of the use of the disjunctive is to indicate that each of the paragraphs (a) – (e) are intended to have separate and independent operation; they are to be read disjunctively. On that reading, if an incapacity for work of an employee is shown to "result from" a personal injury by accident within the meaning of par (a), in the sense that the personal injury by accident is a material contributing cause as indicated in these reasons, then that disability would be compensable by virtue of par (a), notwithstanding that it was also a disease as defined in s 5.

22 The independent and disjunctive quality of each of the paragraphs of the definition of disability in s 5 appears to have been the point of the reasons expressed by Fitzgerald AJ, Malcolm CJ, Wallwork J and Templeman J concurring, in Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253. That case concerned a worker who accidentally injured his right foot and lower leg at work for which he had been paid compensation. Prior to that accidental injury his right hip was subject to a "disease", as defined in s 5 of the Act. In subsequent proceedings for common law damages the worker included a claim for damages for an alleged aggravation of the disease in his right hip from the injury that he sustained in the accident; ie a disability within par (d) of the definition provided that the employment was a contributing factor to a significant degree. In his reasons, Fitzgerald AJ said:

"[62] The injury to Mr Santos' foot constituted a 'disability' under par (a) of the definition. The 'disease' to which his hip was subject prior to the injury to his foot did not constitute a disability under pars (c) or (d) unless his

(Page 12)

employment had contributed to his contracting the disease, or to the recurrence, aggravation or acceleration of the disease, 'to a significant degree'. United Construction submitted that, on the proper construction of the definition of 'disability' in s 5, the Review Officer was bound, when determining the degree of Mr Santos' disability as a result of his accident, to disregard his hip problems, including any hip problems that resulted from his accident, unless his employment, including his accident, had contributed to his hip problems 'to a significant degree'. That argument erroneously treats both the definition of 'disability' in s 5 and Mr Santos' hip problems compendiously.

[63] While there might be cases in which a worker's total disability is to be determined by reference to more than one paragraph of the definition of 'disability', Mr Santos' damages claim is based solely on his accident, which he alleges was caused by United Construction's tort, not on his accident combined with other circumstances of his employment that he does not allege were tortious. The disability for which Mr Santos claims damages is solely referable to par (a) of the definition of 'disability', which is separate and self-contained. The Review Officer was required to determine what disability Mr Santos has as a result of his accident. Any hip problems that he has as a result of his accident form part of that disability and Mr Santos' employment was the cause of those hip problems. Any hip problems that he has that do not result from his accident are not part of his disability for the purposes of his damages claim irrespective of whether or not his employment contributed to those hip problems significantly or at all."

23 In the present case the respondent's application is founded solely in the injury of 21 March 1997. That is the disability which he pursues. This is a disability within the meaning of par (a) of the definition of disability. He has not sought to found an entitlement to payments of compensation separately from that personal injury by accident in March 1997. In particular, it is not his case that a fresh disability has arisen founded in a disease, being his psychiatric condition, to which his
(Page 13)

employment was a contributing factor to a significant degree, or on any other recurrence, aggravation or acceleration of such a disease. He has not purported to found a separate claim to compensation on either par (c) or par (d) of the definition of disability.

24 For these reasons it appears to me open to the respondent in this case, if he can do so, to demonstrate that his psychiatric condition is an aspect of his disability resulting from his 21 March 1997 injury, pursuant to par (a) of the definition of disability. For the reasons indicated, this will require that the respondent satisfy the review officer that the injury to his right knee in March 1997 was a material contributing cause of his psychiatric condition. In my view, on a proper construction of the definition of disability, it does not matter that the psychiatric condition be the product of a disease within the meaning of the Act, or also result from a disability within the meaning of another paragraph than (a) of the definition of disability. In these respects, in my view, the decision of the learned Compensation Magistrate was correct and ground 3 is not made out.

25 I should not be taken, from these comments, to be suggesting that this is a clear case within par (a) of the definition of disability. The evidence as outlined by the review officer would suggest that there may well be significant difficulties in the way of the respondent succeeding before the review officer. That is not a matter upon which I am in a position to comment and it would not be appropriate for me to do so. It is for the review officer to evaluate the evidence presented to him, applying the correct legal test, to determine whether or not the respondent has established the claim which he seeks to pursue.

26 I would mention that in the course of argument we were referred to the position in some other Australian jurisdictions. In each case, however, the applicable workers' compensation legislation was, in material respects, drafted differently from the definition of disability and s 5(4) of the Act. We can only seek to construe and apply the provisions as enacted by the parliament of this State.

27 By ground 4 the appellant sought to agitate yet another factual issue which may or may not arise in the course of the review officer's reconsideration of this matter in light of these reasons. The point of the ground was to seek to distinguish between a material contributing cause, as understood in accordance with these reasons, and a psychiatric condition which is in fact attributable to the respondent's worry or anxiety. In my view, it is premature to give consideration to this issue at the present time. It is first necessary for the relevant material facts to

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be determined by the review officer. They have not been determined at the present time. Only then will it be apparent whether or not this issue presents itself, and only then will it be apparent whether any question as to the appropriateness of the approach of the review officer arises for further consideration on appeal.

28 The fifth ground of appeal contended that the learned Compensation Magistrate had failed to give adequate reasons. The essence of the argument in support of this ground is that in truth the review officer did apply the correct test when determining whether the incapacity resulted from the March 1997 disability, and that any difficulty arises because his reasons are unclear or incomplete in this regard, not because the wrong test was applied. It is submitted that given these circumstances the respondent ought to have sought written reasons for the review officer's decision pursuant to s 84ZI to overcome this supposed deficiency in the reasons. It is contended that, in the absence of a request pursuant to s 84ZI, the reasons published by the review officer should not be taken to be full or adequate reasons. In my view, there are two short answers to this ground. First, for the reasons given earlier, I am not able to accept that the review officer did apply the correct legal test. Secondly, in this case, a week after conducting the review hearing the review officer gave his decision and at that time published his written reasons. These extended over 17 pages. Both the length and the content of those reasons confirm that they were full reasons for decision. In my view, there was, in truth, no basis on which the respondent ought reasonably and properly to have sought any further written reasons pursuant to s 84ZI.

Conclusion

29 For these reasons the appeal from the decision of the learned Compensation Magistrate should be dismissed. It was the order of the Magistrate that this matter be remitted to the review officer for further consideration. In my view that is necessary and appropriate. The order should stand. No doubt the further consideration given to the matter by the review officer will be undertaken in light of the reasons of this Court. In the circumstances I see no need to make any express order to that effect.

30 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Parker J, with which I agree. I would therefore dismiss this appeal.