McMahon v Lagana and Lavella trading as the Vessel Nimble Ii

[2005] HCATrans 145

[2005] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S229 of 2004

B e t w e e n -

CHRISTOPHER MICHAEL McMAHON

Applicant

and

ANTHONY LAGANA AND JOSEPH LAVELLA T/A THE VESSEL “NIMBLE II”

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 11.29 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR R.I. HARRINGTON, for the applicant.  (instructed by Lee Sames Egan)

MR J.E. SEXTON:   May it please the Court, I appear for the respondent.  (instructed by Lee & Lyons)

GLEESON CJ:   Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honours.  Your Honours, central to our case at all stages through the appellate process was the idea that findings of fact which satisfied the principle established by this Court in Hatzimanolis necessarily imbued those facts with elements of causation sufficient to satisfy the test of causation introduced into the Workers Compensation Act by the enactment of section 9A after Hatzimanolis was decided.

GLEESON CJ:   Where is the most convenient place for us to see the section?

MR CAMPBELL:   Your Honours, we have handed it up in our bundle your Honour, and it is the second document in our bundle of material, but it is set out in the decision of the Court of Appeal in Mercer v ANZ Banking Group [2000] 48 NSWLR 740, which is the other case referred to in our bundle. On page 742, the President of the Court of Appeal sets out the section in full and your Honours will see subsection (1) which is the gravamen of the matter:

(1)      No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

GLEESON CJ:   Your client was assaulted by a person to whom he took a dislike in a pub.

MR CAMPBELL:   Perhaps the other way around, your Honour, the assailant took a dislike to our client.

GLEESON CJ:   It does not matter where the merits of that altercation lay.  In what respect was the employment a substantial contributing factor to the injury, except that if he had not been employed he would not have been in the town where the pub was.

MR CAMPBELL:   Your Honour, more specifically, if he had not been employed on the terms and conditions referable to his employment as a deckhand on a fishing boat, he would not have been in the exposed condition on the fishing vessel tied up at the wharf at Ulladulla, and therefore, susceptible or more susceptible to attack than he might have been, we submit certainly would have been, if he had been safe in his home unit at Evans Head.

GLEESON CJ:   Just let us understand the facts a little better.  He went into the pub at Ulladulla.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   Having had a rest during the afternoon.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And how much time did he spend there?

MR CAMPBELL:   He was there from about 8.30 to 2.00 am, your Honour.

GLEESON CJ:   Drinking steadily?

MR CAMPBELL:   Well, he said about the results of his drinking, your Honour, and he was accepted in this regard, that he was affected but not drunk.

GLEESON CJ:   And then he went back to the vessel?

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And his assailant came down looking for him.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And what happened then?

MR CAMPBELL:   Well, he was lured on to the wharf, as it was put, your Honour.

GLEESON CJ:   What do you mean by that?

MR CAMPBELL:   Things were said to him which encouraged him to come on to the wharf.  The findings of fact ‑ ‑ ‑

GLEESON CJ:   What, “Please come up to the wharf”?

MR CAMPBELL:   Well, your Honour, I think there was more an invitation to attend in more general terms, but in circumstances where it did not seem, according to the findings made and the finding he was lured, that he was not being invited up there to recommence any altercation.

GLEESON CJ:   The assailant came down and called him out.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   But he was not rendered vulnerable by reason of the fact that his employment put him in some circumstances where a man could break in, get in easily through a window or something like that.

MR CAMPBELL:   No, your Honour, he was on a fishing vessel which had an open deck and he could be seen, at the time the assailant came down, sitting on the deck with one of his colleagues, and it was in those circumstances that he was easily accessible to the assailant, who invited them up onto the wharf.  Nothing about that invitation or his conduct, according to the findings of fact which favour us in this regard, nothing about that alerted him to the idea that he was going to be set upon with a machete and suffer the injuries that he suffered.

GLEESON CJ:   Well, it was the fact that the person was armed with a machete that was the surprise to him, was it not?

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   He, no doubt, presumed he could handle himself otherwise.

MR CAMPBELL:   There had been earlier altercations as your Honours know, and he had not come off with any significant injury, but what we say about that, your Honour, is that both before the Deputy President in the Workers Compensation Commission and in the Court of Appeal, it was accepted that notwithstanding some of the interesting facts in this case, that the evidence did rise up to the necessary standards set down by this Court in Hatzimanolis.  So that at the time the injury occurred he was in the course of his employment or, the injury at least arose out of the course of his employment.  That being so, the only question then became for his entitlement to compensation to be established, there being no issue of injury or incapacity, whether the employment was a substantial contributing factor. 

The argument that we wish to make is that because the cover, if I can put it that way, provided by the Workers Compensation Act is extended by the principle in Hatzimanolis beyond actual hours of work or beyond actual performance of duty into intervals or interludes in overall periods or episodes of work, necessarily, once you say in facts like these, that he is covered by the Act, if I can use that loose expression for the moment, you are actually saying that he is covered because he has suffered an injury whilst he was doing something which the employer, impliedly or expressly, encouraged or authorised him to do.  Now, in this particular case, that is reside on the boat at the wharf at Ulladulla.

Once you look at the facts, unusual as they may seem, perhaps, to your Honours, in the context of the legal test that is required to be applied, the decisions of this Court, we submit you necessarily see, as the Court of Appeal recognised, that there is a causal link between the injury he suffered and his employment.  We submit your Honours, once you have that, the causal link between the injury and the employment, you have brought yourself within section 9A.

Now, true enough, the learned Deputy President thought that the contributing factor was minor rather than substantial in this case but, with respect, her decision, again as the Court of Appeal recognised, was tainted by a misdirection as to law inasmuch as she considered that her finding that the applicant had satisfied the Hatzimanolis principle only meant that he was in the course of his employment, that is to say, it only provided a temporal connection, but again if I can repeat myself, the Court of Appeal recognised, your Honours, and I will take you to that, that it went beyond that.  The passage, your Honours, is at page 56 of the application book and paragraph 37 in the decision of Justice Hodgson.  Your Honours will see:

There was one statement by the Deputy President which in my opinion was not strictly correct as a matter of law . . . In fact, that circumstance showed that the employment had some causal relevance to the injury, which is not present in every case where injury occurs in the course of employment. 

CALLINAN J:   I just simply do not agree with that.

MR CAMPBELL:   Your Honour, can I take ‑ ‑ ‑

CALLINAN J:   I think you are very, very lucky to get that finding.

MR CAMPBELL:   Your Honour, it was a finding of fact that we got ‑ ‑ ‑

CALLINAN J:   I do not care, I mean, the actual basic facts were uncontradicted.  It is an inference from the facts, and no doubt about the facts.  You have no greater sanctity than any other inference.

MR CAMPBELL:   Could I say this, with respect to your Honour, as your Honour will recall from workers compensation cases, the traditional test is set down in section 4 of the New South Wales Act, albeit since 1942, was that there was a disjunctive test as to liability in respect of injury, injury in the course of employment or arising out of.  What this Court, with respect, did in Hatzimanolis in providing that extended meaning to those provisions, was to incorporate in the cases to which the decision applied, that is interlude or interval cases in the overall period ‑ ‑ ‑

CALLINAN J:   This is in the course of a long argument which was interrupted from time to time, an argument that had absolutely nothing to do with his employment.

MR CAMPBELL:   True enough, your Honour, the argument had nothing to do with his employment, but if one accepts as one must, that the findings of fact were made in our favour in that regard and that both at the arbitration level and before the Deputy President ‑ ‑ ‑

CALLINAN J:   They were inferences from facts.  They are not facts.  There is no dispute about the facts.

MR CAMPBELL:   They are – I beg your Honour’s pardon, I did not mean to speak over you.

CALLINAN J:   The relevant facts are established, but whether on those facts the cause has been demonstrated or not is entirely a matter of inference.

MR CAMPBELL:   The inferences once drawn, your Honour, remain inferences of fact, and unless the process by which they are drawn is challenged successfully on appeal, then on a legal ground the Court of Appeal is bound by those inferences of fact as it is, with respect, by the primary facts.

CALLINAN J:   Well, you have Warren v Coombes and you have Fox v Percy.

MR CAMPBELL:   But the appeal to the Court of Appeal in this case, your Honour, was based on section 353 of the 1998 legislation, which allowed an appeal only on a point of law.

GLEESON CJ:   Yes, you had to demonstrate that there was a material error of law in that reasoning process of the Deputy President.

MR CAMPBELL:   Yes, your Honour.  We did, your Honour, that is so.  I just wish to submit, with the greatest of respect, that the decisions

Justice Callinan referred to were decisions which informed the powers of the Court of Appeal in relation to rehearings under section 75A of the Supreme Court Act.  So that we say once we demonstrated a material error of law, if I can adopt that expression from your Honour the Chief Justice, then we were entitled to success pursuant to section 353.  What his Honour found at paragraph 37, page 56 is that we had demonstrated a material error of law.

GLEESON CJ:   No, on the contrary, that you demonstrated a minor error that was not material.  What he said was, there is one statement that is not strictly correct as a matter of law, but that does not demonstrate that the decision was based on a material error of law.  That is what the rest of paragraph 37 says.

MR CAMPBELL:   Yes, your Honour, and may I say about that that we have acknowledged that that is what we have to overcome, and we are seeking to persuade this Court that, in fact, the misdirection that the Deputy President made, as identified by Justice Hodgson there, was a material misdirection because the Deputy President failed to recognise that on the facts as she found them to be, we had already established a causal link between the employment and the injury as I have probably said too many times already.

Now, in those circumstances, if there was a misdirection of that nature, then we submit that the Court of Appeal could not be satisfied that it did not make any difference.  If she had recognised, with respect to her, that having made the finding she did we were already in the relevant area under section 9A, that is, we had already satisfied part of it which showed a contributing factor, then having regard to the fact that she was in any event satisfied that there was some contribution albeit minor, if you add the two together, your Honours, as a process of judicial reasoning, then we were deprived of the opportunity of persuading her because of that misdirection, that we had made good all of the requirements set down by the statute to entitle the applicant to compensation.  May it please the Court.

GLEESON CJ:   Thank you, Mr Campbell.  We do not need to hear you, Mr Sexton.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

AT 11.44 AM THE MATTER WAS CONCLUDED