Kennedy Cleaning Services v Petkoska
[1999] HCATrans 228
IN THE HIGH COURT OF AUSTRALIA
Registry No C20 of 1998
B e t w e e n -
KENNEDY CLEANING SERVICES PTY LIMITED
Applicant
and
VESELA PETKOSKA
Respondent
Application for special leave to appeal
GAUDRON J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 6 AUGUST 1999, AT 9.31 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.J.C. MOSSOP, for the applicant. (instructed by Hunt & Hunt)
MR G.J. LUNNEY: If the Court pleases, I appear for the respondent. (Romano & Co)
GAUDRON J: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. The application is concerned with a short issue which, in our submission, is not resolved by the Court’s decision in Zickar v MGH Plastic Industries Pty Ltd 187 CLR 310. The issue is whether a stroke occurring at work, not caused by work but caused by the progression of mitral stenosis, is a personal injury in terms of section 71 of the Workers’ Compensation Act 1951 of the Australian Capital Territory and the issue ‑ ‑ ‑
GAUDRON J: That is in the same terms as the New South Wales Act, is it?
MR JACKSON: No, your Honour, not quite.
GAUDRON J: Not quite.
MR JACKSON: No. The issue, for the reasons which we have set out at page 48 in paragraph 4.2 is, in our submission, of importance and really goes beyond the Australian Capital Territory. Could I take your Honours for just one moment to the structure of the Act. The structure is that section 7(1) – your Honours should have that with the papers - of the Act provides that:
Where a worker suffers personal injury arising out of or in the course of the worker’s employment, the employer is liable to pay compensation –
Only a temporal connection with work is required. On the other hand, if:
a worker contracts a disease or suffers an aggravation, acceleration or recurrence of –
it, it is necessary to establish that the employment contributed:
to the contraction or acceleration of the disease or the aggravation, acceleration …..the disease –
That is provided for by section 9(1). In Zickar, a majority of the Court held in relation to the New South Wales’ provisions that a rupture of a cerebral aneurism resulting from a congenital weakness was an injury in terms of that Act. The relevant definition in that case, if I could take your Honours to it, appears at page 314. Halfway down the page your Honours will see that it was expressed to mean “personal injury arising out of”, et cetera, and to include, and then your Honours will see paragraph (b)(i) and (ii) of that definition.
Now, three members of the Court, the minority, in the result, regarded the position as no different from that of the Queensland legislation which had been in question in the earlier case of Hockey v Yelland where it had been held that if the rupture was the result of progression of the disease it was not an injury. If your Honours go to page 326 your Honours will see there set out about point 3, on the page after the reference to Hockey v Yelland, the summary of the reasons of the majority, going towards the bottom of the page.
GAUDRON J: You do not seek, if leave is granted, to reopen Zickar? You seek to distinguish it, I take it?
MR JACKSON: Yes, your Honour.
GAUDRON J: And that would be your position throughout?
MR JACKSON: Yes, your Honour.
GAUDRON J: Yes, thank you.
MR JACKSON: Now, your Honours, what I was going to say that if one goes then to the majority – the majority consisted of four members of the Court, of course, Justice Toohey, McHugh and Gummow, the joint judgment, and your Honour Justice Kirby the separate judgment. Could I go first to the reasons of the three members of the Court. Their Honours laid stress upon the arrangement of the definition in that Act. That that is so your Honours will see from page 328 at about point 6 on the page the paragraph commencing:
A the forefront of the appeal is a question of construction of s 4.
Your Honours will see the remainder of that paragraph, and then at the bottom of the page their Honours refer to the proper construction of section 4 being the first question and then at the bottom of page 329, about point 8, the last paragraph, their Honours say:
The layout of the definition…..certainly suggests that the first inquiry is whether there has been personal injury, a term which itself is not defined…..For present purposes par (c) can be put to one side.
Then your Honours will see the last two lines:
That par (a) begins with the word “means” and par (b) begins with the word “includes” –
et cetera. I will not read it out but if your Honours would go to the remainder of that paragraph at the top of the next page.
GAUDRON J: In a sentence, Mr Jackson, what do you say is the difference between a stroke and a rupture? A stroke necessarily involves injury, does it, at least to some part of the anatomy?
MR JACKSON: In the very broadest sense, I suppose that is correct in the sense that anything that happens to the body, in one sense, one can describe as being ‑ ‑ ‑
GAUDRON J: Well, it results in a pathology, does it not - some pathology?
MR JACKSON: What occurs, of course, or what occurred in this case was that because of the blood clot that had developed as part of the progression of the disease, another part of the progression of the disease was simply that the blood supply to part of the brain ‑ ‑ ‑
GAUDRON J: Resulting in brain injury, as that expression is commonly understood, would it not?
MR JACKSON: Your Honour, that is really putting it in a loose way, with respect, but what one ‑ ‑ ‑
KIRBY J: Why is it a loose way? It is a pathological change and usually, as I understand it, quite dramatic. One moment a person does not have a stroke and the next moment the person has the stroke. The pathological change would in ordinary parlance be called an injury. It is not a question of whether the structure of this definition takes it out of what ordinary parlance would require.
MR JACKSON: I was referring, first of all, to the way in which the definition played a part in the reasons for judgment of those three members. The thing I was going to say, your Honours, was that their Honours then dealt with the question rather more generally and it is apparent enough, in our submission, that the reason for taking the view that the particular case in Zickar was one where there was an injury was that there had been some rupture.
KIRBY J: But it was not the rupture, as such, that made it an injury. There is nothing in the Act about rupture. It is the fact that that was a dramatic and sudden pathological change.
MR JACKSON: With respect, I am conscious your Honour took that view but the other three members of the majority did not go so far, with respect, and ‑ ‑ ‑
KIRBY J: But how can you possibly say where there is no mention of rupture in the Act that somehow some magic applies to rupture? That is a completely non-conceptual way to define injury, that an injury includes a rupture but does not include a stroke. It seems a very strange result.
MR JACKSON: One does have the situation, of course, that if one is speaking about the two provisions of the Act, the two provisions of the Act are ones where there is a distinction drawn between, on the one hand, injury and, on the other hand, disease. The distinction is drawn for reasons of endeavouring to demonstrate that if there is something caused by disease, then a condition, in addition to those which would apply otherwise, has to be satisfied. Now, your Honour, one could say that in almost every case of disease, particularly if the result of the disease is a death which occurs, then there has been, in one broad sense of the term of the term, some injury. The point I was seeking to make about it was, if one looks at the present Act ‑ ‑ ‑
KIRBY J: Not necessarily. You can have diseases, dermatological diseases, for example. It is a very slow process, whereas what we are talking about here is one of the most dramatic things that can happen in medical history, a stroke.
MR JACKSON: Yes, your Honour.
KIRBY J: It is very dramatic. It is what you would normally call an internal injury or, as Justice Gaudron said, an injury to the brain by the leakage of blood.
MR JACKSON: Well, by the prevention of blood getting there, in effect, I suppose.
KIRBY J: In this case it may be. Sometimes a stroke is a leakage of blood in the brain.
MR JACKSON: Yes. Well, if that were the case, then one would think that every case of death occurring at work would be something that inevitably fell within the injury rather than the disease case.
KIRBY J: It would depend whether it fits within the word “injury” or whether it is that kind of occurrence which does not fit within “injury” and therefore has to try to scramble into a slow process of disease. This is dramatic.
MR JACKSON: I do not mean to be facetious about it, your Honour, but nothing, one would think, could be more dramatic than a death occurring at work and it is plain, of course, that ‑ ‑ ‑
KIRBY J: If it is a death from a rupture, it is compensable under Zickar.
MR JACKSON: Yes, your Honour, I accept that. That is true, if one is speaking out legislation in the form of Zickar. That is not quite the case in the present case where the distinction is obviously drawn. Now, what I was going to say that if one looks at the reasons of the three members of the majority, one sees at page 331 where their Honours are discussing the earlier cases. Your Honours will see a reference at about point 4 on the page to The Commonwealth v Hornsby where it was said:
The Court there held that the stroke which incapacitated the respondent was a result solely of the natural progression of a pre‑existing morbid condition and did not constitute injury by accident.
Their Honours then go on to draw, in effect, the distinction. I should pause to say, in that passage in The Commonwealth v Hornsby Justice Fullagar is referring to three classes of case, one of them being a case like the present where it is said that is not an injury. The requirement in that case was injury by accident but his Honour was at the particular time speaking of what was injury. The distinction seems to be drawn in that paragraph and if one goes on to the facts of the particular case, what was held by the three members of the Court was that – and this particularly at page 332 – after referring to what is at the bottom of 331 and the top of 332 their Honours go on to say at about point 3 on the page:
The personal injury upon which the appellant relies is the rupture of the arterial wall.
That is in the ‑ ‑ ‑
KIRBY J: Can you just tell me what is the distinction in terms of pathology between a rupture of an arterial wall and a stroke that would be founded in the evidence in this case?
MR JACKSON: If one looks at what the evidence was in Zickar – you will see it at the bottom of page 331 – where what there was was the swelling:
“The weakness of the blood vessel balloons out…..becomes thinner and thinner until –
it ruptures. That is the problem that arises. In the present case your Honours will see – I think it is referred ‑ ‑ ‑
KIRBY J: So, it is the fact that it is a swelling that leads to a blockage as distinct from a swelling that leads to the burst‑out of the blood, is that the distinction you are arguing for?
MR JACKSON: Yes, your Honour. You will see at ‑ ‑ ‑
GAUDRON J: A stenosis is a narrowing, is it not, in any event?
MR JACKSON: Yes, your Honour. You will see that it is discussed at the bottom of page 7. At the bottom of page 7 is the extract from the cardiologist. A slightly fuller version of the evidence appears, in fact, in my learned friend’s submissions at the bottom of page 50, paragraph 2.3.
KIRBY J: Well, that sudden development of “rhythm” disturbances and “the risk of blood clots forming” causing the stroke sounds very difficult to distinguish from a rupture to me.
MR JACKSON: Well, the magistrate ‑ ‑ ‑
KIRBY J: It is an internal catastrophe that happens at a particular and specific point of time.
MR JACKSON: Well, your Honour, of course, but the question is whether the fact that that happens does not mean that something cannot relevantly be a disease. The definition of “disease” in the Act includes something which may be of:
sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease –
All those terms are ones that are entirely apt to describe something which occurs suddenly, in effect, as your Honour has put it, and ‑ ‑ ‑
KIRBY J: Now, Mr Jackson, I want to be fair to your client because I had a view and the other Justices had a slightly different view. Would you explain to me what the difference is because if there is a difference, I do not think the fact that I hold one view should stop your client having the matter considered by the Court, so, how would you describe the difference between the view which the three members of the Court held and the view that I held?
MR JACKSON: The view that your Honour held was one whereby your Honour said, to put it shortly, that if one looks at, first of all, the arrangement of the definition, the first question is whether there was personal injury and then it does not matter and if something happens to be a disease as well, it does not matter. If it falls within “personal injury” that is it. In arriving at that view I think it is right that your Honour has said that something which was a sudden occurrence could be something which was described as an injury. Your Honour’s observations I think may be seen at page 351, about point 8.
KIRBY J: Was the view in the joint reasons that because the Act contains a specific and different definition of “injury” in the nature of aggravation of a disease that you have to read down the general definition of “injury” and if it happens to be a disease you have to fit it within the disease category to succeed?
MR JACKSON: The view of the minority, your Honour?
KIRBY J: No, the view of the three in the majority.
MR JACKSON: The view of the three in the majority ‑ ‑ ‑
KIRBY J: I am just trying to understand why a rupture is different from a stroke because it does not seem to me to be pathologically different.
MR JACKSON: Yes. Could I just say one more thing about what your Honour said, first of all.
KIRBY J: Yes.
MR JACKSON: Your Honour said at the top of page 352:
The word “injury” should not be given a narrow meaning -
Then, in the first new paragraph on that page:
The approach…..does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of “personal injury”…..Where, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a “personal injury” can be left to determination on a case by case basis.
That is what your Honour said. Now, it is not, with respect, clear from that – and I do not mean this in any way adversely critically – why a case like this would particularly be in rather than outside your Honour’s view. If one goes to the other members of the majority, what I was going to say was that if one goes to page 333 their Honours said in the last paragraph on the page, speaking about what Chief Justice Gibbs had said in Hockey v Yelland which you will see immediately above it:
If nothing more appeared than that the haemorrhage was merely the culmination or climax of a progressive disease, it could not be said that the rejection of the claim by reference to the opening words of the definition disclosed an error on the face of the record.
Their Honours then said at page 334, halfway down the page:
But the present case is not one of an autogenous disease.
I invite your Honours to read the next couple of sentences. It was then said:
It may be accepted that the aneurism was an autogenous disease but the appellant’s claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening’s evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor…..If there was no rupture there would be no event answering the description –
et cetera. That seems to leave open, with respect, the possibility that things that occur in the ordinary progression of the disease, albeit ones, as the Act contemplates that occur with some drama, are not within the concept of “personal injury”. The matter remains unclear and, in our submission, it is an appropriate case for the Court to reconsider the matter.
KIRBY J: Did you tell Justice Gaudron at the outset that the structure and language of this Act is similar to that of other jurisdictions?
MR JACKSON: Your Honour, they vary from jurisdiction to jurisdiction. What I said was that the issue is one which – the underlying issue of what constitutes “injury” is one of more general importance than just ‑ ‑ ‑
GAUDRON J: That will apply in every case where the word “injury” is used?
MR JACKSON: Yes, your Honour.
GAUDRON J: You are looking for the natural and ordinary meaning of the word “injury” in this case?
MR JACKSON: Yes, your Honour.
KIRBY J: So that rupture is an injury but stenosis is not?
MR JACKSON: Rupture has been held to be an injury, your Honour, yes.
KIRBY J: Would you be seeking to reargue Zickar then?
GAUDRON J: I thought that you said “No”.
MR JACKSON: I said “No”, your Honour. It may be that on particular ‑ ‑ ‑
GAUDRON J: You would seek only to distinguish it?
MR JACKSON: We would seek to distinguish it. I suppose I should say - and, your Honour, may I have one second to say this in – that it may be that in the course of developing an argument it became apparent, as happened in Zickar, that it would be necessary for the Court to reconsider that. If so, then we would have to seek leave in our written submissions if that were the case.
GAUDRON J: Yes, thank you, Mr Jackson. Yes, Mr Lunney.
MR LUNNEY: Your Honours, in the applicant’s submission the applicant has sought to characterise the event as being the result of an autogenous disease and otherwise saying that in paragraph 3.1 on page 47 of the application book:
The respondent suffered from a long standing disease which caused the stroke.
And, again at page 48 of the application book the event :
was merely the culmination of an autogenous disease not contributed to by her employment –
My learned friend has already referred to the factual background of the case and that was that a defect in the respondent’s heart caused recirculation of the blood in the area of the heart and caused a situation in which it was possible for clots to form. The clot that was formed in this area was then washed by the circulation to the brain, by chance - it could have been washed by the circulation of the blood to any other portion of the body – and there it occluded a cerebral artery causing an event which meant that a portion of the brain was not supplied with nutrients and died. In those circumstances, it is the respondent’s submission that the factual background to the case is much more similar to the background that provoked the issues in Kavanagh’s Case rather than the events ‑ ‑ ‑
GAUDRON J: That may be so but there is some difficulty in reconciling the decisions in this area, is there not?
MR LUNNEY: There is, your Honour, yes.
GAUDRON J: And would not that ordinarily indicate it is a matter of importance sufficient to attract the grant of special leave?
MR LUNNEY: Yes, your Honour, that is correct. The respondent, however, seeks to distinguish the circumstances of this particular case from the circumstances which gave rise to the issues in Zickar’s Case by virtue of the remoteness of the causation of the diseased portion of the body, being the mitral valve in the heart, to the event which occurred in the brain which was the lodgment of a clot which had been formed ‑ ‑ ‑
KIRBY J: But what are trial judges - I mean, this is a big turnover jurisdiction, still. I dimly recall it. What are trial judges doing? They have sort of three theories. One is the old theory that you have to read down “injury” because of the definition of “disease” and that special definition. The other is my theory that if it falls within the primary definition of “injury” that is enough, and the third is the majority theory which may mean that you allow ruptures but you do not allow strokes. I mean, what is a trial judge doing in the meantime, until this Court one way or the other tries to sort it out? I would not want to be a trial judge working out how to apply these Acts.
MR LUNNEY: We were successful at first instance, your Honour, and that takes me to the legislation which has already been referred to, and, in my submission, there is a significant difference between the legislation that was considered in Zickar’s Case and the legislation in this particular case.
GAUDRON J: But does not this case depend on the ordinary and natural meaning of the word “injury”?
MR LUNNEY: It depends, with respect, your Honour, on the definitions that are contained in the legislation. The legislation, however, is fairly vague about what exactly an injury is, so that one is driven back to ‑ ‑ ‑
GAUDRON J: At the forefront of it?
MR LUNNEY: Yes, it is and one is driven back to what is commonly understood by the word “injury”, yes.
KIRBY J: Now, it is not suggested, is it, that injuries cannot be internal?
MR LUNNEY: No, it is not suggested that, your Honour. I think that Kavanagh’s Case ‑ ‑ ‑
KIRBY J: It is accepted, at least for the present application, that you can have an injury which is an internal rupture.
MR LUNNEY: Yes.
KIRBY J: So, the question is whether or not this incident that occurred to your client falls within whatever it was that attracted rupture to injury.
MR LUNNEY: Yes, your Honour.
KIRBY J: But it cannot be the fact that this Court has laid down a high principle of law that all ruptures are injuries. I mean, that would be an absurd suggestion – and only ruptures are injuries as part of the process of disease.
MR LUNNEY: Yes, your Honour.
KIRBY J: So that the question is whether Zickar, because of the way the Court’s decision fell out, needs revisiting in order to try to find something which would be clearer for trial judges. It is just unfortunate that your client has got caught up in this but it may have consequences for any costs orders that were made if special leave were granted.
MR LUNNEY: Yes, your Honour. I supposed distilled in this way the issue becomes whether or not the occlusion of the artery is the equivalent of the rupture of an artery and, of course, our submission would be simply that ‑ ‑ ‑
GAUDRON J: Not necessarily. In the case of an occlusion you might look to the next step. I mean, it is not the occlusion itself that causes the problem in a case such as the present, it is the impact on the brain.
MR LUNNEY: It is the loss of blood supply, your Honour, as a result of the occlusion.
GAUDRON J: Well, the loss of blood supply itself does not matter, it is what happens thereafter, is it not?
MR LUNNEY: Yes, it is.
KIRBY J: I suppose the brain starts to crumble and all sorts of terrible things happen to it, and pretty quickly too.
MR LUNNEY: It loses its nutrition, your Honour. In this case we were, and we are, submitting that the lodgment of the clot in the lumen of the artery is an event which can be described as an injury in itself. Of course, there are physical consequences of that which lead to the actual death of brain cells which could also be seen as being an injury in themselves. But, importantly, for my submission, the lodgment of the clot in the cerebral artery can be viewed as an event in the same way as the Court took the view in Zickar’s Case that the extravasation of the blood as a result of the rupture was an event and therefore could be categorised as an injury.
Could I go on to one further matter, and that is that in the judgments in the Federal Court, his Honour Mr Justice Higgins at page 27 in the application book referred to a case which must have been heard by the Full Court of the Federal Court at about the same time as the present case. At paragraph 28 his Honour says:
Recently, in Australian Postal Corporation v Burch (1998) 156 ALR 482, a Full Court of this Court considered whether a cerebral artery occlusion resulting in a stroke could be regarded as “injury” within the meaning of s4(1) of the –
Commonwealth legislation.
KIRBY J: So, occlusion is blockage and therefore rather similar to this case?
MR LUNNEY: Yes, it is identical, your Honour. That is what happened in this case, occlusion of a cerebral artery, and the result was that the injured worker succeeded. His Honour goes on to quote from the judgments in that case and says that he agrees with them. There was a joint judgment of their Honours Justices Finn and Merkel and they, likewise, refer to the same case, Australian Postal Corporation v Burch. At the outset of their judgment which appears at page 38 of the application book they say:
We would preface what we have to say by noting that ss 7 and 9 of the Workers Compensation Act 1951 (ACT) (“the Act”) and the s 6 definitions of “disease” and “injury” are, insofar as presently relevant, similar to ss 27 and 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”)and to its s 5 definitions of “injury” and “disease”. The latter statute and its successor – the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) have been the subject of several recent decisions in this Court, including the Full Court, that are germane to the central issues of this appeal.
Their Honours go on to distil three principles from the decisions in the Federal Court relating to the Commonwealth legislation. The case of Australian Postal Corporation v Burch came before this Court in February this year in an application for special leave and that application was dismissed. I think it was 12 February this year.
GAUDRON J: The question there though was somewhat different, if I recollect it. The question was whether it was open on the evidence to make the finding that was made, that being a matter which proceeded under the law relating to judicial review of administrative decisions.
MR LUNNEY: I have unfortunately very little access to what actually happened on that occasion, your Honour, I am afraid. Could I return very briefly to my submission that the legislation in the Australian Capital Territory is significantly differently to that in New South Wales. It, in my submission, is quite clear ‑ ‑ ‑
KIRBY J: Could I just follow up Justice Gaudron’s question? This was a decision originally by the magistrate and it went up to a Full Court of the Federal Court on an error of law. Was that the suggestion?
MR LUNNEY: No, your Honour, the matter proceeded ‑ ‑ ‑
KIRBY J: Or was it a full appeal?
MR LUNNEY: It proceeded in the Magistrates Court with a magistrate as an arbitrator under the Workers’ Compensation Act in the Territory. The appeal from that jurisdiction is to a single judge of the Supreme Court of the Australian Capital Territory. It then goes on appeal to the Full Court of the Federal Court and the issues are not confined to solely issues of law.
KIRBY J: I see.
MR LUNNEY: So, to conclude my submissions, I do submit that the separate treatment of “disease” and “injury” in sections 7 and 9 of the ACT Ordinance provoke a dissimilarity between the issues in this case and in Zickar’s Case and the ACT legislation makes it much clearer that the event in this case can be seen as simply an injury without any need to go further to ask the question whether or not it is a disease and whether it qualifies by arising out of the actual duties in order to qualify as a deemed injury. If the Court pleases.
GAUDRON J: Thank you, Mr Lunney. Mr Jackson, were the Court minded to grant leave, would you be in the position to give undertakings that your client would not seek to disturb the costs orders made in the Full Federal Court and that it would pay the respondent’s costs in this Court in any event?
MR JACKSON: Your Honour, I have endeavoured to obtain instructions along those lines. I am not able to give your Honour an answer to that immediately. May I say, however, if the Court were minded to make that a condition of the grant of special leave that an undertaking to that effect be filed within a short time.
GAUDRON J: Yes. Subject to notification to the Registrar of this Court within seven days of an undertaking by the applicant that it would not seek to disturb the costs orders made in this case by the Full Federal Court and that it would pay the respondent’s costs in this Court in any event, there will be a grant of special leave. The Court will adjourn briefly to reconstitute.
AT 10.06 AM THE MATTER WAS CONCLUDED
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