Mills v Return to Work Corporation of South Australia - [2019] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
MILLS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 56
Judgment of The Honourable Justice Hinton
12 April 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR - OTHER MATTERS
Application for permission to appeal a decision of the Full Bench of the South Australian Employment Tribunal to the Full Court of the Supreme Court.
In February 2015 the applicant suffered injuries in a car accident as he was driving home from work. The applicant made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) which was rejected by Return to Work SA. The matter proceeded to determination before a Deputy President in the South Australian Employment Tribunal who affirmed Return to Work SA’s decision.
The applicant appealed to the Full Bench on the basis that the Deputy President’s reasons did not adequately explain why the evidence of an expert called by the applicant had not been acted upon. The Full Bench rejected this contention and dismissed the appeal.
The applicant sought permission to appeal to the Full Court of the Supreme Court on the basis that the reasons provided by the Full Bench were inadequate in two respects: first, that the Full Bench misconstrued in the Tribunal’s reasons; and secondly, that the Full Bench was wrong to conclude that the Deputy President’s reasons were adequate.
Held, allowing the application, the proposed grounds of appeal are reasonably arguable and it is in the interests of justice to grant the applicant permission to appeal.
South Australian Employment Tribunal Act 2014 (SA) s 68; Supreme Court Civil Rules 2006 (SA) r 291(4); Workers Rehabilitation and Compensation Act 1986 (SA) s 30, referred to.
Carlson v King (1947) 64 WN (NSW) 65; Mills v Return to Work SA [2018] SAET 215; Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Resi Corporation v Munzer [2016] SASCFC 15; Wainohu v New South Wales (2011) 243 CLR 181, considered.

MILLS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2019] SASC 56
Application
HINTON J:

This is an application for permission to appeal.
Owen Mills suffered grave injuries in a car accident that occurred between 2.30 and 3.30 am on Saturday, 7 February 2015 as he was driving home from work. Believing that his accident occurred during the course of, or was substantially connected to, his employment, he made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (the Compensation Act). That claim was rejected by Return to Work SA and proceeded to determination in the South Australian Employment Tribunal. Two questions arose for determination:
i.Was the journey during which the accident occurred undertaken by Mr Mills in the course of him carrying out duties of employment? (the first issue).
ii.Was there a real and substantial connection between Mr Mills’ employment and the accident? (the second issue).
If the answer to either question was in the affirmative, Mr Mills would succeed on his claim.
As the application for permission to appeal concerns only the second of these two questions, no further mention is made of the first nor how either the Tribunal or the Full Bench dealt with that question.
At the time of the accident Mr Mills was working in a vineyard as a general hand. He lived in a house on a different property some 40 km away. Early in the same week as that in which the accident occurred the harvest had commenced at the vineyard where Mr Mills worked. This meant that Mr Mills ceased to work normal shift times. In fact, on Wednesday 4 February he worked from 4.00 pm to 11:30 am the following morning (Thursday 5 February), then from 7.30 pm that same day to 3.30 am on Friday 6 February, and then from 8.00 pm later that same Friday to 2.30 am on Saturday 7 February.
With respect to the second issue, Mr Mills’ case was that there existed a real and substantial connection between his employment and his accident because the accident occurred when he fell asleep at the wheel as he was driving home from work and that his falling asleep was contributed to by the length of the shift he had just completed (6.5 hours) in addition to the length and variability of the shifts he had worked in the days preceding.
In the Tribunal Mr Mills, who sustained a traumatic brain injury in the accident, gave evidence. He had no memory of the accident. As part of his case he also called a treating physician, an accident reconstructionist and a sleep expert. Return to Work SA called a number of people with whom Mr Mills worked at the vineyard in addition to a second sleep expert.
The Tribunal determined both issues adverse to Mr Mills and affirmed the rejection of his claim.
Mr Mills’ case in relation to the second issue is founded on his falling asleep at the wheel. If that fact was not proven he could not succeed. There being no witness to the accident, and Mr Mills having no memory of it, whether it occurred as a consequence of Mr Mills having fallen asleep could only be established circumstantially.
In his reasons under the subheading, “Consideration”, Deputy President Ardlie first dealt with the question of Mr Mills’ reliability as a witness, bearing in mind the impact upon his memory that the brain injury he sustained in the accident had occasioned. The Deputy President was “left with the overall impression that he [Mr Mills] was trying to do his best but there are real issues with his memory”.[1] He concluded that where Mr Mills’ evidence conflicted with the evidence of other witnesses he would “attach little weight to the version of events advanced by the worker”.[2] Importantly, the Deputy President determined that the “worker’s assertion that he could not sleep must be accorded little weight due to his memory difficulties together with his tendency when giving evidence to put the blame on the respondent”.[3]
[1]    Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [184].
[2]    Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [185].
[3]    Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [185].
After considering the evidence on the first issue the Deputy President turned to consider the evidence on how tired Mr Mills was at the end of the shift he worked immediately before undertaking the journey home during which the accident occurred. He concluded:[4]
The length and variability of the shifts caused the worker to be tired. Reference has been made above to the fact that this was the first week of harvest and only four shifts were involved. Whilst there was one long shift there was still significant breaks between shifts. Dr Vakulin and A/Prof. Thomas agreed that the shifts could only have resulted in ‘minor sleep deprivation’ or ‘mild sleep deprivation’ which were one in the same thing. I accept what A/Prof. Thomas said about the work schedule.
“It is my opinion that the work schedule itself should not be seen to have resulted in higher levels of sleep restriction which in turn would lead to high levels of fatigue related risk”.
The worker had time between the shifts for sleep opportunity. There is no information about non-work-related matters that could have caused him to not obtain sufficient sleep. There is also no information available as regards a range of common sleep disorders.
It is my view that there is not sufficient evidence for me to be satisfied that the worker was suffering from fatigue at the end of his shift and that he was fatigued because of his employment.
[footnote omitted]
[4] Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [191]-[193].
The Deputy President next considered the evidence of Professor Anderson, the accident reconstructionist. That evidence was to the effect that the circumstantial evidence regarding the accident suggested that Mr Mills did not lose control of his vehicle, but, rather, drifted off the road. This opinion was, however, qualified by the Professor’s dissatisfaction with the evidence gathered by the police who attended the accident. This dissatisfaction, or the inadequacy of the police investigation, meant that the Professor could not exclude the possibility that the accident was the product of inattention or distraction. The Deputy President then concluded:[5]
… Even if the accident was a result of the worker falling asleep at the wheel I do not consider that there is sufficient connection to his employment. The work schedule did not cause high levels of sleep restriction which in turn lead to high levels of fatigue. The legislation states that there must be ‘a real and substantial connection between the employment and the accident out of which the injury arises’.
[5] Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [194].
The Deputy President does not arrive at a final conclusion as to whether Mr Mills’ accident was the result of his having fallen asleep at the wheel. Rather, assuming without deciding that he did fall asleep, the Deputy President was not satisfied that there was a real and substantial connection between Mr Mills’ falling asleep and his employment. This conclusion is consistent with the findings made at [192]-[193] of Deputy President Ardlie’s judgment quoted above.
Mr Mills appealed to the Full Bench of the South Australian Employment Tribunal. He contended that Deputy President Ardlie’s reasons were inadequate in that they did not explain why the evidence of the accident reconstruction expert called by Mr Mills was not acted upon. In relation to the second issue more particularly, Mr Mills submitted:[6]
… that in the face of expert evidence from an accident reconstruction expert, that strongly supported a finding that the accident occurred because Mr Mills fell asleep, it was incumbent upon the Deputy President to explain why he was not prepared to act on that evidence. He submitted that the Deputy President’s failure to do so was an error of law.
… the Deputy President’s statement in his reasons that if Mr Mills fell asleep, that there was not a real and substantial connection between the employment and the accident, reflected an error of law. He said that the Deputy President could only have reached this conclusion if he thought that the subsection required a strong causal connection. He said that properly construed all that was required was an association or link that can fairly be regarded as real and substantial.
[6] Mills v Return to Work SA [2018] SAET 215 at [34]-[35] (Gilchrist DPJ and Kelly DPJ).
In their joint reasons, Deputy President Judges Gilchrist and Kelly note that on the second issue the force of the evidence of the sleep expert and accident reconstructionist diminished in cross-examination.[7] They then cautioned that this aspect of Mr Mills’ case being circumstantial, inferences could only be drawn if supported by facts and if it were established that the necessary foundational facts to support a desired inference were only proved to be a possibility, the trier of fact may not feel an actual persuasion to draw the inference.[8] On the second issue and the question of the adequacy of Deputy President Ardlie’s reasons in addressing it, they concluded:[9]
In this case, it is apparent from the cross examination of Dr Vakulin and Associate Professor Anderson, as discussed above, that many of the ‘facts’ that they based their opinions on, were no more than possibilities. Although it was unfortunate that the Deputy President spoke in terms of it ‘not being open for the Tribunal to find that the worker has established that he actually fell asleep’, when read as a whole, it is plain enough from his reasons as to what the Deputy President was actually saying. He had reservations about the quality of the ‘facts’ underlying of Dr Vakulin’s and Associate Professor Anderson’s conclusions. And, in the end, he did not feel an actual persuasion as to what caused the accident. He was not satisfied to the requisite degree that it occurred because Mr Mills fell asleep. On the state of the evidence, it was open for the Deputy President to reach that conclusion.
[7]    Mills v Return to Work SA [2018] SAET 215 at [42].
[8]    Mills v Return to Work SA [2018] SAET 215 at [44].
[9]    Mills v Return to Work SA [2018] SAET 215 at [45].
The third member of the Full Bench was Deputy President Lieschke. He agreed with the joint judgment that Deputy President Ardlie’s reasons for disposing of the second issue were adequate.[10] Deputy President Lieschke added:[11]
In the present matter the appellant submitted that s 30(5) required application of the concept of a real and substantial connection, rather than any higher test of causation as found in the Act. He submitted the Deputy President mistakenly equated the connection requirement to that of causation, and in doing so erred in law.
This submission is in addition to the Deputy President not giving adequate reasons for not finding that the cause of the accident was the appellant falling asleep. I agree with the reasons of my colleagues that this finding was open on the evidence and that adequate reasons were provided for this conclusion. Review of that finding on appeal is beyond the scope of an appeal limited to a question of law.
[10] Mills v Return to Work SA [2018] SAET 215 at [53].
[11] Mills v Return to Work SA [2018] SAET 215 at [54]-[55].
Deputy President Lieschke then analysed the meaning of the phrase “real and substantial connection” as contained in s 30(5) of the Compensation Act. He concluded that the “deliberate use of the general concept of ‘connection’ rather than ‘cause’ or ‘arise from’ amounted to a clear intention to not altogether exclude all journey accidents in circumstances where the journey was not a duty of employment, and the employment did not cause the injurious accident”.[12] Connection, he added, is not to be equated with a causal connection. The Deputy President then stated:[13]
Once it is accepted that the Deputy President made a valid finding that the cause of the accident was not the appellant falling asleep, (and irrespective of that remaining as a possibility), it follows that it was not open to make any further finding that fatigue from long hours of work and working until the early hours of the morning on the day of the accident had a real and substantial connection to the occurrence of the accident. Any connection had to be between two established events, rather than just between fatigue from employment and the possibility of falling asleep.
If my conclusion is wrong regarding no error of law in rejecting falling asleep as the cause of the accident, new findings would need to be made. Only if a positive finding of crashing due to falling asleep is made, would there be a need to apply the ‘real and substantial connection’ test. If so, the alternate finding that was made, namely that ‘the work schedule did not cause high levels of sleep restriction which in turn lead to high levels of fatigue,’ could not stand as sufficient.
[footnote omitted]
[12] Mills v Return to Work SA [2018] SAET 215 at [59].
[13] Mills v Return to Work SA [2018] SAET 215 at [60]-[61].
Mr Mills now seeks permission to appeal against the judgment of the Full Bench to the Full Court of the Supreme Court under s 68(2) of the South Australian Employment Tribunal Act 2014 (SA).
Before the Full Court Mr Mills seeks to argue that the reasons provided by the Full Bench were inadequate in two respects:
i.First, the Full Bench misconstrued the Tribunal’s reasons by treating as findings of fact Deputy President Ardlie’s recitation of submissions in circumstances where, before the Full Bench, Mr Mills did not accept nor adopt those submissions; and
ii.Second, the Full Bench was wrong to conclude that the Tribunal’s reasons were adequate.
Rule 291(4) of the Supreme Court Civil Rules 2006 (SA) allows for an application for permission to appeal to be heard by a single judge in private without hearing from either party. I followed such course.
The requirement that permission be obtained is discretionary; it is not enough then that an appeal may concern a question of law. The discretion is not fettered save by the purpose it serves. Obviously, the requirement that permission must be obtained is intended as a means whereby this Court may control the flow of business from the Full Bench. In addition, the appellate jurisdiction conferred on this Court by s 68 of the South Australian Employment Tribunal Act 2014 (SA) being confined to questions of law is intended to permit this Court to superintend the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) in the discernment and application of the law. The discretion whether to grant permission to appeal must be exercised with this in mind. Merit review forms no part of this Court’s function. It follows that generally a grant of permission cannot be expected unless the question of law raised is one of wider importance, or concerns conflicting authority, or it is otherwise in the interests of justice that it be considered. It is to be expected that the factual context in which the question arises must provide a suitable vehicle for its consideration and determination and that the appeal is reasonably arguable and enjoys some prospects of success.
It is also important to observe that the right of appeal and correlative appellate jurisdiction conferred by s 68(1) is “on a question of law against a decision of the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court)”. It is not a right or jurisdiction extending to a ground of appeal “involving a question of law”. It is unnecessary to deal with the authorities analysing what is and is not a question of law. It may be accepted as established that a failure to provide reasons is an error or law[14] and likewise a failure to provide adequate reasons.[15] The duty to provide reasons is an incident of the exercise of judicial power and is constitutionally entrenched.[16] That said, the duty is not absolute, applying only to final decisions and important interlocutory rulings.[17] In the present case the reasons attacked are reasons given for a final determination and there can be no suggestion that the duty does not apply.
[14] R v Keyte (2000) 78 SASR 68.
[15] Papps v Police (2000) 77 SASR 210.
[16] Wainohu v New South Wales (2011) 243 CLR 181.
[17] Wainohu v New South Wales (2011) 243 CLR 181 at [56] (French CJ and Kiefel J), [98] (Gummow, Hayne, Crennan and Bell JJ).
In Carlson v King Jordan CJ said:[18]
... It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter, and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch.

[18] (1947) 64 WN (NSW) 65 at 66.
[citations omitted]

The applicable principles were more recently summarised by the Full Court in Resi Corporation v Munzer:[19]
[19] [2016] SASCFC 15 at [71]-[72] (Lovell J, Sulan and Stanley JJ agreeing).
Of more recent times there have been many decisions on the question of the adequacy of judicial reasons. Many cases turn upon the facts in issue in the particular case. However, a number of general principles relating to the duty to give adequate or proper reasons may be extracted from the cases:
1.“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.
2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.
3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient. A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.
4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.
5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.
6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.
It is important in this case to read the Judge’s reasons in their entirety and in the context of the manner in which the cases were presented at trial.
[footnotes omitted]
In written submissions filed in support of his application, Mr Mills contends that in the Full Bench the joint reasons at [45] (reproduced above at [15] as adopted by Deputy President Lieschke) have misconstrued Deputy President Ardlie’s reasons. Nowhere in his reasons did Deputy President Ardlie expressly or implicitly arrive at a conclusion on the question of whether Mr Mills fell asleep at the wheel. Paragraph [194] is consistent with no ultimate finding being made. Deputy President Ardlie reasoned to his conclusion on the assumed basis that Mr Mills did fall asleep.
In my view, it is reasonably arguable that the joint reasons misconceive Deputy President Ardlie’s process of reasoning. As indicated earlier in these reasons, it is open to conclude that Deputy President Ardlie determined it was unnecessary to make a finding on the intermediate question (whether Mr Mills fell asleep at the wheel) because even if a finding were made that was favourable to Mr Mills the balance of the evidence did not establish a real and substantial connection between the accident and Mr Mills’ employment. If this is correct, the view expressed at [45] of the joint reasons (reproduced above at [15]), as adopted by Deputy President Lieschke, cannot be sustained — Deputy President Ardlie’s statement on “the issue of compensability”[20] (i.e. that there was not a real and substantial connection between Mr Mills’ employment and the accident) was not obiter, it was the basis upon which he determined the controversy. And if that is correct, it becomes arguable that the compensability issue, being an argument as to the capacity of the evidence to satisfy a statutory test (and thus a question of law including a question of construction, which is also a question of law) had to be dealt with unless the Full Bench first determined that it could decide the question of whether or not Mr Mills fell asleep at the wheel.
[20] Mills v Return to Work SA [2018] SAET 215 at [46] (Gilchrist DPJ and Kelly DPJ).
For these reasons, in my view it is reasonably arguable that the Full Bench has misconstrued the reasons of Deputy President Ardlie. It may be said that such conclusion does not mean that the reasons are inadequate, but in fact, the contrary. If that is right, the question of law becomes one of whether the Full Bench was correct in its understanding of the legal basis upon which the judicial determination was made.
As indicated, a step in the contention that the Full Bench misconstrued Deputy President Ardlie’s reasons involves establishing that Deputy President Ardlie made no finding on the question of whether Mr Mills fell asleep at the wheel. If that step is accepted, there not only arises the question of the consequence for the Full Bench decision, but also the question of the consequence for Deputy President Ardlie’s decision. Why was it not open to him to reason as he did? The answer to this question is relevant to determining whether any appeal to the Full Court enjoys sufficient prospects of success, or, raises a wider question of importance. The approach that Deputy President Ardlie took to deciding the matter (on Mr Mills’ construction of his reasons) was logical, but legally could he avoid making a finding on the question of whether Mr Mills fell asleep at the wheel? The answer to that question may be informed by the breadth of the appeal to the Full Bench and then to this Court.
In all the circumstances I am satisfied that it is in the interests of justice to grant Mr Mills permission to appeal. If it transpires that Mr Mills’ grounds of appeal are questions of mixed law and fact, I would refer the question of permission to appeal to the Full Court for that issue along with the question of whether permission should be granted to be determined.