Kennedy Cleaning Services Pty Ltd v Petkoska

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

KENNEDY CLEANING SERVICES PTY LIMITED  APPELLANT

AND

VESELA PETKOSKA  RESPONDENT

Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45
31 August 2000
C16/1999

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

D F Jackson QC with D J C Mossop for the appellant (instructed by Hunt & Hunt)

F X Costigan QC with G J Lunney for the respondent (instructed by Romano & Co)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ AND KIRBY J.   This is an appeal from the Full Court of the Federal Court of Australia[1].  It concerns the conclusion of that Court that a worker who had suffered a stroke in the course of her employment was entitled to benefits under the Workers' Compensation Act 1951 (ACT) ("the Act") because she had suffered a "personal injury" as provided by s 7(1) of the Act.  The Full Court applied the reasoning of the majority of this Court in Zickar v MGH Plastic Industries Pty Ltd[2].  In our view, the Full Court was correct to do so and the appeal should be dismissed.

    [1]Petkoska v Kennedy Cleaning Services Pty Ltd (1998) 87 FCR 526.

    [2](1996) 187 CLR 310 ("Zickar").

    The facts

  2. Mrs Vesela Petkoska (the respondent) was employed by Kennedy Cleaning Services Pty Ltd (the appellant).  On 9 September 1992, in the course of her employment, she was cleaning rooms at the Australian National University in Canberra.  Her husband was working with her but on another level of the same building.  He went looking for her and discovered her sitting in a chair, crying and unable to speak.  She was taken to hospital by ambulance and underwent various tests.  She was incapacitated for work.  When she made a claim for compensation under the Act, liability was declined.  In February 1994, she brought proceedings in the Magistrates Court at Canberra.

  3. Because, at the time of the hearing, the respondent was still unable to communicate, the sole evidence in the Magistrates Court comprised that of her husband, deposing to the uncontested circumstances of her collapse whilst working and various medical reports which were received into evidence without objection. The main issue for determination was whether the respondent was entitled to compensation under the Act in respect of her undisputed incapacity. To succeed, the respondent had to show that such incapacity resulted from a "personal injury" within s 7(1) of the Act or from her contracting or suffering an aggravation or acceleration of a disease to which her employment was a contributing factor within s 9(1) of the Act.

  4. The medical reports provided a description of the pathological events that preceded the condition suffered by the respondent which was described, in general terms, as a "stroke".

  5. For some years before September 1992, the respondent had been diagnosed as…

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Details
Case
[2000] HCA 45
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning a claim for workers' compensation. The appellant, Kennedy Cleaning Services Pty Ltd, appealed a decision of the Full Court of the Federal Court of Australia which had found in favour of the respondent, Mrs Vesela Petkoska. Mrs Petkoska, an employee, had suffered a stroke while cleaning rooms in the course of her employment. The central dispute was whether her incapacity resulting from the stroke constituted a "personal injury" under the relevant legislation.

The legal issues before the High Court were whether the respondent's stroke, which arose from a pre-existing heart condition (rheumatic mitral valve disease) and the formation and release of a blood clot, qualified as a "personal injury" under section 7(1) of the *Workers' Compensation Act 1951* (ACT). The court was required to consider whether this statutory regime for "personal injury" was mutually exclusive with the provisions relating to contracting or suffering an aggravation or acceleration of a disease under section 9(1) of the Act, and whether the Full Court had correctly applied the principles established in *Zickar v MGH Plastic Industries Pty Ltd*.

The High Court reasoned that the Full Court had correctly applied the majority decision in *Zickar v MGH Plastic Industries Pty Ltd*. The court noted that historical workers' compensation legislation often presented difficulties in compensating for diseases, particularly due to requirements for injury to arise "out of" and "in the course of" employment, and the need to prove "personal injury by accident". However, the legislation had evolved, with these requirements being modified or removed. The court emphasised the importance of applying the precise language of the applicable legislation to the facts of each case, rather than relying on generalities. In this instance, the court found that the respondent's stroke, precipitated by a paroxysm of atrial fibrillation in the context of her pre-existing mitral valve disease, constituted a "personal injury" within the meaning of section 7(1) of the Act, consistent with the reasoning in *Zickar*.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

AND This is an appeal from the Full Court of the Federal Court of Australia[1]. It concerns the conclusion of that Court that a worker who had suffered a stroke in the course of her employment was entitled to benefits under the Workers' Compensation Act 1951 (ACT) ("the Act") because she had suffered a "personal injury" as provided by s 7(1) of the Act. The Full Court applied the reasoning of the majority of this Court in Zickar v MGH Plastic Industries Pty Ltd[2]. In our view, the Full Court was correct to do so and the appeal should be dismissed.[1]Petkoska v Kennedy Cleaning Services Pty Ltd (1998) 87 FCR 526.[2](1996) 187 CLR 310 ("Zickar").The facts Mrs Vesela Petkoska (the respondent) was employed by Kennedy Cleaning Services Pty Ltd (the appellant). On 9 September 1992, in the course of her employment, she was cleaning rooms at the Australian National University in Canberra. Her husband was working with her but on another level of the same building. He went looking for her and discovered her sitting in a chair, crying and unable to speak. She was taken to hospital by ambulance and underwent various tests. She was incapacitated for work. When she made a claim for compensation under the Act, liability was declined. In February 1994, she brought proceedings in the Magistrates Court at Canberra. Because, at the time of the hearing, the respondent was still unable to communicate, the sole evidence in the Magistrates Court comprised that of her husband, deposing to the uncontested circumstances of her collapse whilst working and various medical reports which were received into evidence without objection. The main issue for determination was whether the respondent was entitled to compensation under the Act in respect of her undisputed incapacity. To succeed, the respondent had to show that such incapacity resulted from a "personal injury" within s 7(1) of the Act or from her contracting or suffering an aggravation or acceleration of a disease to which her employment was a contributing factor within s 9(1) of the Act. The medical reports provided a description of the pathological events that preceded the condition suffered by the respondent which was described, in general terms, as a "stroke". For some years before September 1992, the respondent had been diagnosed as suffering from rheumatic mitral valve disease. This is a condition of the heart that, in some cases, manifests itself with bouts of quivering (fibrillation) that may lead to the release of a clot (embolism) into the bloodstream. According to Dr R M McCredie, the rhythm of atrial fibrillation carries a significant risk of emboli release, even in an otherwise normal heart. Dr McCredie considered that the respondent had moderately severe mitral stenosis as a result of previous exposure to rheumatic fever. However, the first serious manifestation of her illness was when the embolus was produced which caused her stroke. The doctor described what had happened: "[A] blood clot ... [formed] in the left atrium and [broke] off, and on this occasion happened to pass directly to the left [temporo-parietal] region of her brain." Dr McCredie was of the opinion that this process was "precipitated by her paroxysm of atrial fibrillation". Dr McCredie stated that it was "a common phenomenon for the onset of atrial fibrillation to produce the first recognisable symptoms of mitral stenosis, either by producing shortness of breath, or, in fact, by producing an embolus, as in this case".

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ KIRBY J GAUDRON J (dissent) HUGH, GUMMOW AND HAYNE JJ CALLINAN J
The appellant submitted that the provisions of the New South Wales Act were materially different from the provisions of the Act applicable in this case. The respondent agreed that there were differences but submitted that these reinforced, and did not detract from, the applicability of Zickar to her claim.The earlier decisions of this Court Problems of the kind presented in this appeal have a long history in the decisions of this Court. Initially, under United Kingdom and Australian workers' compensation legislation, recovery of compensation in the case of a disease was commonly excluded, in effect, by two provisions[16]. The first was the requirement, in most of the legislation as originally expressed, to show that the incapacity complained of by the worker had arisen both "out of" and "in the course of" employment with the employer. More significantly perhaps, as Latham CJ pointed out in Hume Steel Ltd v Peart[17]:"[D]iseases are excluded from the English Act, not because they are not injuries, but because the onset and development of such a disease cannot be brought within the conception of the word 'accident'".[16]A comprehensive history of the comparable provisions in United Kingdom and New South Wales workers' compensation legislation appears in Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 at 60-77 per Powell JA.[17](1947) 75 CLR 242 at 252. The second provision which operated to exclude compensation for disease was that most early workers' compensation legislation required proof of "personal injury by accident". This was the language of s 9(1) of the Commonwealth Employees' Compensation Act 1930 (Cth) when Kavanagh v The Commonwealth[18] was decided. Gradually, over the space of several decades, these provisions in workers' compensation legislation were changed. The words of connection to the employment were rendered disjunctive ("arising out of or in the course of the employment")[19]. The words "by accident" were deleted altogether. Particular provisions in relation to recovery in the case of diseases were later added. It is important to keep these statutory changes in mind when considering earlier authority. Indeed, as the Court emphasised in Zickar[20], it is essential to measure any particular claim against the precise language of the applicable legislation. Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case.[18](1960) 103 CLR 547.[19]cf Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 at 75.[20](1996) 187 CLR 310 at 328 per Toohey, McHugh and Gummow JJ. Because of the recent review of past authority in Zickar, it would be pointless to trace the earlier decisions once again. The only basis for undertaking such a review would be if the appellant's case were that Zickar had been wrongly decided and should now be reversed by this Court. Although the appellant ultimately indicated a willingness to ask the Court to take that step, its primary submissions, to the very end of the appeal, were that this course was not necessary. It contended that Zickar was distinguishable and that, on the true construction of the Act applicable here, the respondent's claim fell outside the confines of an "injury" in s 7(1) of the Act.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, KIRBY J, HUGH, GUMMOW AND HAYNE JJ, CALLINAN J

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