Kelly v Glenroc Pastoral Co Pty Limited
[1994] HCATrans 67
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S71 of 1994
B e t w e e n -
MERV JAMES KELLY
Applicant
and
GLENROC PASTORAL CO PTY
LIMITED
Respondent
Application for special leave
to appeal
MASON CJ
DEANE J
TOOHEY J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 14 OCTOBER 1994, AT 11.25 AM
Copyright in the High Court of Australia
MR B.J. GROSS, QC: May it please the Court, I appear with MR R.I. HARRINGTON for the applicant. (instructed by Carroll & O’Dea)
MR P. WEBB, QC: May it please the Court, I appear with my learned friend, MS P.M. KAVANAGH for the respondent. (instructed by Leigh Virtue & Collins)
MASON CJ: Mr Gross.
MR GROSS: Your Honours, we submit that the Court of Appeal decision involves fundamental legal errors in the construction of disease of gradual onset provisions, that is section 15 of the New South Wales Workers Compensation Act and leaves workers’ rights and employers’ obligations in a state of profound uncertainty.
Your Honours, the judgments of Justice Meagher and Justice Powell were both influenced factually by a particular error that Her Honour had found that the lumbar spondylosis was congenital. In fact, it is plain that Her Honour made no such finding and, Your Honours, that alone is a fundamental error of a factual kind but, of course, that is not sufficient for this Court.
Notwithstanding this particular error, the court fell into a series of errors involving questions of general principle which regards that the facts in this case will have a persisting effect.
DEANE J: Mr Gross, notwithstanding Justice Meagher’s difficulty in understanding the trial judge’s judgment, as I read Her Honour’s judgment, did it not turn upon the fact that she found that the condition had fully come about before employment with either of the last two employees?
MR GROSS: Yes, Your Honour.
DEANE J: Now, if that is so, was Her Honour not correct on the ground that she disposed of the case?
MR GROSS: No, Your Honour. There were two heads of entitlement, sections 15 and 16. I do not know whether Your Honours have the text for those sections. I have extra copies here which I can hand up.
DEANE J: One never knows whether the Acts are out of date or too modern, in these cases. They seem to change all the time.
MR GROSS: Yes. It is the 1987 Act which remains the same for all relevant purposes. Now, section 15 is concerned with the situation where there is a disease of gradual onset and the worker relies, in effect, upon a general correlation between the nature of the disease and the nature of his work, not having to prove a specific causal connection at all, and asserts that the particular employer was the last employer of that kind. Under such a regime you do not have to inquire about specific causation or whether, in effect, the worker was incapacitated or disabled before he reached the last employer.
Under section 16 - that is a provision concerning aggravation and exacerbation of diseases, however caused, whether they be community diseases or a work‑related disease and for that you do have to attend to the matter Your Honour Justice Deane mentioned, namely, proving the causal nexus.
DEANE J: Under 15(1)(b) you need to identify a time frame.
MR GROSS: Yes.
DEANE J: Why is not the time frame the employer, at the time of or last before the incapacity becomes fully about?
MR GROSS: Your Honour, this was not an issue before Her Honour or before the Court of Appeal, and it is not an issue because that is read as meaning, not the first commencement of any form of incapacity in the history of the person’s working life. In other words, it is not a single date that you select which governs his rights forever and a day after that. Rather, it is an ambulatory date which is relevant to the particular incapacity on a week‑by‑week basis he is suffering.
DEANE J: What I was putting to you is, as I read section 15, once the relevant incapacity has become fully developed and established, that is the cut‑off period and you cannot, as it were, have the incapacity fully developed and say, “I’ll take employment with another employer, either to land him with liability or to work out whether I can work notwithstanding the incapacity.”
MR GROSS: Your Honour, the Act does work in the former way for this reason: it is designed as a provision so as to prevent workers being sent from pillar to post looking for the relevant employer, either the last employer or the employer who caused the injury or the many employers who caused individual injuries which led to the ultimate period of work. It works in a fairly ruthless fashion: that once one has an incapacity in a given week, one asks the question in respect of that incapacity, “Who is the last employer of the relevant kind?” Otherwise, of course, you would have a situation where a man who had first established some form of entitlement in a disease situation, that last employer at that time would be fixed with liability thereafter. Yet, if he has further incapacity, the last employer then would be a candidate or the employer with whom he had a specific aggravation because the nature of the work would be a candidate.
So to avoid this problem, you take the last employer at any given time in respect of any incapacity and then there is a provision in section 15(2) for a contribution to be obtained from previous employers but only in the 12 months preceding the particular incapacity. So you go back so far but only to a limited extent. That is to avoid having a situation where you can have dozens of employers sitting there as candidates for sharing a compensation award.
DEANE J: Is that not contrary to what Justice Dixon said in Smith v Mann?
MR GROSS: Your Honour, Justice Dixon in Smith v Mann said that a generic risk relationship is sufficient between the natureof the employment and the disease and, thereafter, no further requirement as to causation exists. None of the courts have said that, in effect, you only get one date of incapacity for the rest of your working life in relation to a given disease.
DEANE J: What I had in mind was this sentence in Justice Dixon’s judgment, page 449:
The expression in the first paragraph “in whose employment the worker is or who last employed the worker” implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of, or last before, the incapacity is made primarily liable.
MR GROSS: Yes. Your Honour, that describes how the Act operates. It does not - - -
DEANE J: In most cases.
MR GROSS: Yes. Of course, in some cases you have an evenly developing disease which reaches to the point where the man just stops work and goes no further. But, of course, with some diseases they can wax or wane in their severity, the incapacity can be partial of varying degrees from time to time; improving followed by total incapacity followed by resolution; followed by partial incapacity, and you do have that particular problem with a lot of diseases.
DEANE J: I will stop interrupting you, but on the trial judge’s findings that is not this case. Her Honour found that the incapacity was fully developed and that the last two periods of employment neither aggravated it or had anything to do with it.
MR GROSS: Yes, Your Honour, aned that is why we were not a section 16 case. We were a section 15 case where we had to rely on the bare fact of being the last employer - this, of course, is in the context of compulsory insurance - and that that resolved the difficulty.
Now, Her Honour did not really apply herself to section 15, we said in the Court of Appeal, and the problem is that the Court of Appeal then constructed its own section 15 legal scheme which is totally in defiance of the established principles. Can I move to those errors if I may, Your Honours? The first error was that Justice Meagher, at page 33 point 15, said this:
However, the argument is, in my opinion, of no relevance.
The reason is that, as Mr Webb QC, senior counsel for the first respondent, submitted, s.15 is limited to “diseases” of gradual process which were wholly contracted in the employment in question. In other words, if spondylosis, the principal disease from which Mr Kelly suffered, had been contracted because of shearing, ie because of “the nature of his employment”, s.15 would be satisfied. But Her Honour found as a fact, and all the medical evidence supported her, that Mr Kelly’s spondylosis was congenital. It is not like the asbestosis which I have mentioned. The statute talks of an “employment to the nature of which the disease was due”. In my view, in this context “due” means “solely due”. When a statute indicates a remedy.....the prima facie meaning of “due” is “solely due”.
I will just pass over, if I may, to more of the same on page 34 line 6:
Applying this analysis to the facts of the present case, it is clear that Mr Kelly’s spondylosis was not solely “due” to his occupation of shearing. It was congenital. It existed, no doubt in an embryonic form, before he even started shearing for anyone.
And then His Honour goes on with other remarks.
Now, Your Honours, if in fact section 15 does not require an inquiry into specific causation, one should not undermine the scheme based on generic risk by requiring a particular type of causation, and a sole one at that, to be proven in order to establish entitlement. Of course, the requirement for sole causation, that is sole factual causation, is totally at odds with the way in which causation is dealt with elsewhere under the Workers Compensation Act and, indeed, in negligence law.
TOOHEY J: What role does the causation play, Mr Gross, in section 15?
MR GROSS: Your Honour, we have formulated the answer to that particular problem in, I think, ground 1 of the draft grounds of appeal. But, Your Honour, in short, the question that must be asked is whether there was a general exposure to work conditions or circumstances of the type which, ordinarily, tend to cause the disease from which he suffered in the sense that it is a property of that form of employment to produce that disease. So that if you have that disease that could be seen as a natural risk of being engaged in that type of employment. You do not have to prove a distinctive or exclusive connection but you have to have that generic association between that kind of problem and that kind of work.
TOOHEY J: How does that tie in with the definition of “injury” in the Workers Compensation Act?
MR GROSS: Your Honour, before this case it had been held in New South Wales that section 15 is itself, or its predecessor, is a separate source of entitlement under the Workers Compensation Act or, alternatively, that “injury” is not defined in a disease of gradual onset situation by reference to the same restrictions in section 4.
If Your Honours would just go to section 4, Your Honours will see the definition of “injury” in section 4:
“injury”-
(a) means personal injury arising out of or in the course of employment;
(b) includes -
and then there is a reference to a number of disease characteristics. Now, of course, that is an inclusive definition and we would submit that section 15 is itself a separate source of entitlement qua injury but in any event - - -
TOOHEY J: On that basis, then “injury” really - the word does not have any particular significance, does it, in section 15? It might as well not be there.
MR GROSS: Your Honour, Justice Powell thought that section 15 only had an adjectival or procedural effect and you have to go to section 4. If that is so, make that assumption, we would argue that the way the Act operates is that it finds the causation requirement established by the bare existence of the generic risk relationship, that is the special risk and, secondly, it attributes to the last employer all of the consequences which are deemed to have been caused by all of the employments in that particular occupation.
In any event, Your Honours, if in fact one has to prove a specific cause through that particular employment, that is the last employer, it defies the philosophy which section 15 reflects, namely - - -
TOOHEY J: I am not saying that that has to be proved. I am simply seeking to understand what role the word “injury” plays in section 15 on your argument.
MR GROSS: Your Honour, I would respond that section 4 still defines “injury”, meaning personal injury, and perhaps it comes into (a) because (b), the inclusive definition in relation to disease, does not purport to state completely or exclusively the circumstances in which a disease can qualify as being an injury and, as Your Honour will see, (b) is really concerned with certain types of diseases where essentially you are looking for a given contributing factor and, Your Honours, these provisions which have operation in relation to community diseases which are aggravated, like heart attacks and strokes, have never been held to affect disease of gradual onset provisions where you have got that generic relationship between work and disease.
Your Honours, can I then pass on to the second error if I may. Justice Sheller, at page 38, excluded from diseases of gradual onset diseases which are degenerative diseases. His Honour gave no reason for doing so but one guesses that it was because he saw those as falling into some different medical category from diseases like asbestosis or pneumoconiosis, those being characteristic, in fact, signature diseases, of persons who work with asbestos or in coal mines.
At page 38, Your Honours will see, line 12:
I note that Her Honour had also before her a report of Dr Gonski, a consultant neurosurgeon, and of Dr Luba Eikens, a rehabilitation physician, which as I read them support the conclusion of Dr Eagleton that the conditions were degenerative in nature accelerated or exacerbated by the appellant’s work as a shearer. However on either of the views to which Her Honour refers it does not seem to me that the appellant can bring his case within s15. That section is concerned with an occupational or industrial disease contracted by a gradual process. Dr Eagleton, as I understand him, would accept that both lumbar spondylosis and disc protrusion are gradual process diseases. But they are degenerative diseases and as such not shown to be due to shearing -
Now, it is a bit unclear what His Honour means by “and as such not shown to be due to shearing.” His Honour may mean exclusively or distinctively due. His Honour may be talking about specific causation in the individual case, in which he is offending the Smith v Mann philosophy of how you deal with a disease of gradual onset case. But, Your Honours, there may be a further clue over on page 39 where, after referring to Fisher v Hebburn, at the top of page 39, His Honour says:
In Fisher v Hebburn the worker suffered from pneumoconiosis, a gradual process disease, which was certified to be due to the effects of dust inhaled at his work in coal mines. Such is to be contrasted with Dr Eagleton’s description of lumbar spondylosis and disc protrusion as degenerative diseases.
Now, His Honour then passes on to the third error, which no other judge appears to repeat:
On the other hand if the opinion of Dr Newcombe that the lumbar disc protrusion was a specific incident which occurred during the course of shearing is to be preferred it is not a disease which is of such a nature as to be contracted by a gradual process.
So that having excluded degenerative diseases, for some odd reason, because they are after all diseases, presumably because of the manner of causation or because of something perceived to be distinctive in degenerative diseases, His Honour then passed on to a related error, if in fact you can show that the incapacity is caused by a specific incident, which may be part of the natural history of having that disease, once again section 15 does not apply.
We would submit that Justice Sheller is repeating the same errors as Justice Meagher but in a different form. The argument appears to be that the incapacity has to be solely due to a particular disease or, alternatively, that the disease referred to has to be one which is exclusively or distinctly, as compared to all other occupations, a property of having this kind of job. Or, alternatively, there is a suspicion that Smith v Mann was not followed appropriately and that His Honour is really finding that the evidence does not show a specific factual causal link in the given case.
TOOHEY J: Mr Gross, could I just ask you this? If the appropriate test is the one expressed in paragraph 1 of the draft notice of appeal, do you say there is evidence that is sufficient to meet that test in the present case?
MR GROSS: Yes, Your Honour, and in fact we have summarised that evidence I think in our outline of written argument and also in the affidavit.
TOOHEY J: I am not asking you to take us to that, just to get your answer.
MR GROSS: A short yes.
TOOHEY J: Yes, thank you.
MASON CJ: Mr Gross, when was section 15(1)(b) introduced so as to provide that “compensation is payable by the employer in whose employment the worker is”, because that seems to be a little different from the section that was under consideration in Smith v Mann and perhaps Williams v Metropolitan Coal and Fisher v Hebburn as well?
MR GROSS: Your Honours, it seems to be just part of the original 1987 Act which involved a wholesale replacement rearrangement of sections. Your Honour, if there is some minor variation in wording, it is a type of wording which is found in the original English legislation - - -
DEANE J: Except it is not a minor variation in that if anything is going to get you out of what I was putting to you at the commencement of your submissions it would seem to be that.
MR GROSS: But Your Honour is referring to section 15(1)(b). I am sorry, is that - - -
DEANE J: The alteration from the Smith v Mann section to the current section.
MR GROSS: Your Honours, I think that what has happened there has been more a textual rearrangement but one still finds the relevant ingredients there. I am sorry, Your Honours, I have not got the text of the old sections 7(4). Is that in Smith v Mann? I am just trying to find it.
DEANE J: The equivalent of 15(1)(b) in Smith v Mann did not have anything like “in whose employment the worker is”. It had “who last employed the worker” as I understand it.
MR GROSS: Your Honour, it does not make a difference because if you are in that employment, that is, “in whose employment the worker is”, it has to be your last employer. The alternatives are proposed - - -
DEANE J: You are missing the point, and this is if, when it is “who last employed the worker”, the reference point is when the incapacity became complete, this case fails, but when you bring in “in whose employment the worker is” it is a basis for arguing that it cannot be the reference point of total incapacity. Whether that is right or wrong I would not know.
MR GROSS: Your Honours, we would submit that the alternatives are there to cover the worker whose employment has ceased at the time when the injury is deemed to happen. Your Honour, I think the legislation follows that form because there was one case, and I forget the name of it, where you had the last employer, you had the injury deemed to happen at the time of the incapacity but the disease had worsened after he had left that place of employment, as can happen with some diseases. But then at the time when he has the injury that is not his employer and so you do not have an injury in the course of that employment, or an injury which attaches to that particular employer.
DEANE J: Is there any case that says that an employer is liable under section 15 notwithstanding that the injury was fully developed and known before employment with that employer commenced and was not in any way aggravated by employment with that employer?
MR GROSS: Your Honour, I cannot give Your Honour the name of the case, but all of the cases have proceeded on that basis, that it is irrelevant to inquire about any further causal contribution made by the last employer.
DEANE J: I follow that but what I was saying is an employer, after the injury or incapacity is fully known, fully developed, in the circumstances where it is in no way aggravated. I fully understand what you say in terms of ordinarily you do not inquire into the last employer beyond the nature of the employment.
MR GROSS: Your Honour, the answer is that Justice Dixon’s statement in - I am sorry, Smith v Mann itself provides the answer that after one has shown the connection between nature of occupation and nature of disease and once one has identified a last employer of that category no further inquiry as to causation is necessary, and that is the core proposition in Smith v Mann.
Now, it flows from that, Your Honour, that one does not have to ask what the last employers did or did not do or what was the state of the incapacity at an earlier stage.
DEANE J: But you are not addressing the question where the incapacity is known and fully developed before employment with the last employer commences, which was in Smith v Mann.
MR GROSS: Your Honour, I am reminded the industrial deafness cases involve that situation where you have a gradually developing deafness. The man stays in employment and the Act ultimately enables him to pick a last employer, even though everyone has known and it is testable that he has the deafness and, for simplicity, he goes to the last employer in that situation.
Your Honours, may I say there is a problem inherent in the formulation of the question and that is that it involves this central proposition: that there is the incapacity which is fully known and fully developed. Of course, there is never any such thing as a fixed concept of “the incapacity”. Whether it be known or not by the doctors is neither here nor there. On the question of whether it is fully developed, an incapacity can increase and then diminish. The fluctuation process makes it irrelevant to inquire at what point a doctor would call an incapacity which, of course, is an economic concept, fully developed.
The Workers Compensation Act assumes that you look at the compensible effects of incapacity on a week‑by‑week basis dependent upon how the man is. So that the Workers Compensation Act never asks such a question, whether as a matter of medicine or as a matter of law, or legal entitlement, “When is the incapacity fully developed?” and as for whether it is known or not, that is entirely a chance matter dependent upon astuteness of doctors or whether the worker attends a doctor. It can have no bearing upon selection of the correct point in the time frame in a disease of gradual onset situation.
Your Honours, I think that had completed my submissions except for one matter. Justice Powell appears to have added additional error at page 43. Justice Powell, having embarked upon a review of legislative history, which is really a history in relation to disease provisions as they affected aggravations of underlying community diseases, found at page 45 point 21:
his application will fail unless he is able to demonstrate that the relevant employment contributed to his contracting the disease which is alleged to have caused incapacity.
Now, His Honour probably means the occupation rather than the particular employment with the last employer. But on either analysis His Honour is requiring specific causation when, in fact, the philosophy - ‑ ‑
MASON CJ: Mr Gross, your time has expired.
MR GROSS: I am sorry. May it please Your Honours.
MASON CJ: Yes, Mr Webb.
MR WEBB: Your Honour Justice Deane asked Mr Gross about the relative positions of the statute. I have not a print copy of old section 7(4) but it appears at the bottom of page 427 of the Smith v Mann report and, as far as I can see, Your Honour, it is in the same terms as the relevant portion of the modern section.
MASON CJ: That seems to be so from the judgment in Fisher v Hebburn as well.
MR WEBB: Yes, and from the substance of that portion of Mr Justice Dixon’s judgment which His Honour Justice Deane referred to. Your Honour, I would say that is an answer to the query that Your Honour put.
Your Honours, we say basically that this case was a case in which, on the findings made by the trial judge, the assistive framework which should have been sought and, indeed, was sought at the trial by the worker, was that of section 16 and not section 15, and that is the point of what Mr Justice Sheller was making in his decision when he was comparing degenerative disease with diseases which were due in the nature of contraction to the employment conditions and because the wrong employer was selected at trial that case failed. That is reported upon by Mr Justice Meagher, there is no doubt about that.
So that what this appeal represents is an attempt to jam into the framework of section 15 what is factually a case which should be being brought against a different employer under the framework of section 16. On the findings in this case, the worker was suffering a disease and his injury consisted in the aggravation, acceleration, exacerbation or deterioration of that disease, and the case should have been conducted upon the basis of finding an employer who was someone who had, in terms of the framework of section 16, contributed to the aggravation, acceleration, exacerbation of the disease. Once the facts found did not enable that determination to be made against this employer, that was the end of this case.
Mr Gross has put to Your Honour a number of formulations of what he says is the construction of section 15. He speaks, Your Honours, in the language of policy not the language of construction. To talk about generic risk and to attempt to elevate what Mr Justice Sheller said about degenerative disease, is to talk about the effect of the proper construction upon the facts and this argument cannot be elevated in that fashion so as to be said to represent the proper construction of the section.
Mr Gross was asked a question by Justice Deane about the question of cases of a particular type, and he was answered by reference to boilermakers’ deafness cases. Your Honours will see that both section 15 and section 16 specifically exclude from their operation an injury to which section 17 applies. Section 17 represents the hearing loss section in this area and it is a quite different structure to sections 15 and 16. So deafness cases can play no part in anything to do with section 15 and section 16. Your Honours, I do not see that I can add anything further to - - -
TOOHEY J: I am not sure what you are saying about section 15, Mr Webb. Are you saying that it was not really before the court?
MR WEBB: No, Your Honour.
TOOHEY J: No, you are not saying that because it clearly was.
MR WEBB: What I am saying is that the factual - I am sorry if I am not making myself clear - was that the factual situation, as was found by the trial judge, indicated that this case was one in which refuge could only be sought under the framework of section 16.
TOOHEY J: What is it that makes section 15 inapplicable?
MR WEBB: Because of the finding that the disease was not a disease to the nature of which the disease was due, the employment was not that. It was a degenerative disease which was likely to be aggravated by - - -
DEANE J: Was it not just an ordinary shearer’s back?
MR WEBB: Yes, Your Honour, but a shearer’s back lies under section 16, not under section 15. These two sections provide a code. They operate in two different situations. Section 15 operates in relation to a disease which is contracted in the employment. Section 16 - I am not saying - - -
TOOHEY J: So you say that - - -
MR WEBB: I am not saying that it needs to be fitted home to a particular employment.
TOOHEY J: What is it that requires the link between the contraction of the disease and employment?
MR WEBB: Your Honour, I am not suggesting there is any causal link called for by the section but in order that section 15 operates, the employment must be one to the nature of which the disease was due and the Court of Appeal have said that means ”solely due contracted by”, for example, in the Fisher v Hebburn situation. Now, what section 16 does is to enable the operation of this framework where there is the aggravation of a disease by the employment.
DEANE J: Can I ask you this: would your argument be that a shearer’s bad back, contracted over 30 years working as a shearer, does not come within section 15 because, as it were, everybody’s back degenerates as they get older?
MR WEBB: Your Honour, I am not sure that that can emerge from the evidence in this case but in broad terms I think Your Honour is right.
DEANE J: I was putting to you on the basis that it was wrong.
MR WEBB: This is a case of aggravated disease, if I can put it that way.
TOOHEY J: You say it is but the argument seems to be because the applicant cannot bring himself within section 16 that is the end of the matter.
MR WEBB: No, Your Honour.
TOOHEY J: But you still have to face up to section 15.
MR WEBB: Against this employer, that is the point that we are making. This does not foreclose this man’s rights. In fact, there is a factual finding in Her Honour’s decision which indicates that there is a period of actual injury which is available to this worker. We do not say that it is the end of his rights at all. We simply say that the wrong employer has been chosen. That accentuates the factual nature of this case. There is no foreclosure of his rights, Your Honour.
All these sections do is to enable a worker, who undoubtedly has an injury which is a disease, to more easily find a particular employer who is liable, where there is an area of vagueness about who might be an actual employer, but that does not take his rights away.
DEANE J: Mr Webb, can I ask you one final question and that is this: if, against your submission, one were of the view that the injury in this case of its nature came within section 15 - and I am not suggesting that is right, I am just asking you on that basis - would you still contend that the decision of the Court of Appeal was correct?
MR WEBB: Ms Kavanagh wants to say something. I think the answer is no, Your Honour.
DEANE J: Thank you.
MR WEBB: Your Honour, in case Justice Toohey wants the reference to that, at page 9 of the book Your Honour will see that the trial judge made a finding about a specific change in pathology at 30 to 35, made a finding about frank injury. So that there is available on that finding to this employer a very much more simplified way of achieving his compensation. Your Honour, Mr Gross has not referred in his submissions to the Connair case, perhaps because of what we put in our submissions, but that section was an entirely different section which was a composite of section 15 and section 16 and, indeed, it no longer has any prominence in the Northern Territory legislation in any event.
There is no equivalent in any other State to the way in which “disease” is dealt in section 15 and section 16 in the New South Wales Act, it is purely a local statute, and we have the statutes here if Your Honours want to see them.
MASON CJ: Mr Webb, my recollection may be mistaken but I have some recollection of a much more recent case than any of the cases that are referred to in the judgments that deal with this provision or a like provision. You are not aware of it?
MR WEBB: No, I am not, Your Honour. I am sure that if Mr Gross was aware of it he would tell you too.
MASON CJ: My recollection may be mistaken.
MR WEBB: There has been a very recent decision of the New South Wales Court of Appeal in which they referred with approval to this decision but nothing else that I know of, Your Honour. I do not know what that can be. May it please the Court.
MASON CJ: Yes, Mr Gross.
MR GROSS: Your Honours, we ourselves cannot think of the case Your Honour is thinking of. However, that recent Court of Appeal decision, which I appeared, was also an appeal against the same judge where two of the judges on the Court of Appeal were the same as were on this particular Court and the matter was, in fact, sent back to the Compensation Court because the learned judge had not dealt properly with section 15.
Your Honours, could I just deal with one matter, and that concerns my learned friend’s interesting submission that really it does not matter anyway because we have got a frank injury and we can go back to the Compensation Court and run that. Your Honours, that is a reference to page 7 of the judgment; a passage in Dr Newcombe’s evidence, line 40:
“...the predominant cause of lumbar spondylosis was (the applicant’s) work as a shearer over the years. On the balance of probabilities the cause of the lumbar disc protrusion at L5‑S1 level was a specific incident, perhaps unremembered, during the course of shearing against the background of lumbar spondylosis and intervertebral disc degeneration previously induced”.
That is at the bottom of page 7. So where, at page 9, as my learned friend quotes, according to Her Honour, in litigation with these particular parties, felt there had been a disc protrusion some time “between September 1985 and May 1987”. Let us put aside the fact there is probably 20 employers during that grouping of time. Your Honours, the cause of that protrusion may even be an injury earlier than that period but given the fact you have disruption of a disc followed by subsequent protrusion which can be delayed by many years.
Of course, my learned friend is really saying that any rights we would have would not be against his client - he is not conceding that gratuitously - but rather we should go somewhere else against some other party who is not bound by these judicial comments or by Dr Newcombe’s evidence. In our submission it is ingenuous to suggest that we can.
Your Honours, just one final matter. My learned friend said the other legislation does not deal with the problem in this particular way. However, Your Honours, although we have not extracted the legislation, it is a very common way of dealing with this problem in other States, that there is a separate source of entitlement where there is said to be injury due to the nature of the employment and, in our submission, this case raises issues concerning causation, nature of disease, disqualifying features of individual instance within the natural history of a disease which must apply well outside New South Wales. Thank you.
MASON CJ: Thank you, Mr Gross. The Court will take a short adjournment to consider this matter.
AT 12.11 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.17 PM
MASON CJ: The Court has come to the conclusion that it requires further assistance on the question whether the injury referred to is of a kind that falls within section 15 of the Act and to that end the Court requires the parties to file and serve written submissions directed solely to that question.
Now, can you suggest a timetable, Mr Gross? We ought to have the written submissions as soon as possible.
MR GROSS: Yes, we can do ours today, Your Honour. But perhaps by 4.00 pm tomorrow.
MASON CJ: Well, 4.00 pm on Monday for the applicant.
MR GROSS: Yes, by Monday 4.00 pm.
MASON CJ: And how long do you want, Mr Webb?
MR WEBB: The following day, Your Honour?
MASON CJ: The respondent’s submissions to be filed and served on or before 4.00 pm next Tuesday.
MR WEBB: Your Honour, while this opportunity exists - - -
MASON CJ: What opportunity?
MR WEBB: Your Honours have come back and said something more. I appreciate the impertinence of it, but there was some discussion about the legislation throughout the country on this point and I would like the opportunity to put that before you.
MASON CJ: You have no objection to that, Mr Gross?
MR GROSS: We do not object, no, Your Honour.
MASON CJ: You can do that, Mr Webb.
MR WEBB: Thank you.
AT 12.19 PM THE MATTER WAS ADJOURNED SINE DIE
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