Parmalat Australia Ltd v Cheadle
[2008] NSWWCCPD 39
•28 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Parmalat Australia Limited v Cheadle [2008] NSWWCCPD 39
APPELLANT: Parmalat Australia Limited
RESPONDENT: Jason Christopher Cheadle
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC6677-07
DATE OF ARBITRATOR’S DECISION: 13 November 2007
DATE OF APPEAL DECISION: 28 March 2008
SUBJECT MATTER OF DECISION: Causation; application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; whether the consequences of a second non work-related incident can be said to have ‘resulted from’ the first work-related injury
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Bussoletti Lawyers
ORDERS MADE ON APPEAL: For the reasons given in this decision, the Arbitrator’s findings and determination dated 13 November 2007 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND
Jason Cheadle (‘the Respondent Worker/Mr Cheadle’) is currently 22 years old. He started work for Parmalat Australia Limited (‘the Appellant Employer/Parmalat’) as a packer at their St Paul’s depot at Corrimal in June 2003. On 19 August 2003 he dislocated his right shoulder when he lifted a crate in the course of his employment. Parmalat accepted liability for this injury and paid voluntary weekly compensation and medical expenses.
After a period of treatment, his doctor declared him fit for work on 3 October 2003. Parmalat terminated his employment three days later. His work and medical history between then and 9 December 2006 is set out in detail below. On 9 December 2006 Mr Cheadle was involved in a physical altercation in which he again dislocated he right shoulder and was put off work.
Parmalat denied liability for the further treatment and Mr Cheadle filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 31 August 2007 claiming weekly compensation in the sum of $600.00 per week from 9 December 2006 to date and continuing, plus hospital and medical expenses. The matter could not resolve and proceeded to arbitration on 29 October 2007 when counsel appeared for each of the parties. It was agreed that the claim for weekly compensation would not proceed, but the Arbitrator heard and determined the claim for medical expenses.
The Arbitrator identified the issue to be whether the injury on 9 December 2006 had resulted from the original injury on 3 October 2003 or from the assault, which the Appellant Employer argued was a novus actus interveniens (T45.5). In an ex tempore decision the Arbitrator found in favour of Mr Cheadle. The Certificate of Determination issued on 13 November 2007 records the Arbitrator’s findings and orders as follows:
“Findings:
1.On 9 December 2006 the applicant, Jason Cheadle, dislocated his right shoulder when attempting to defend himself by throwing a punch at an unnamed assailant on that night.
2.The applicant sustained injury to his right shoulder on 19 August 2003 arising out of and in the course of his employment with the respondent.
3.The employment of the applicant with the respondent on 19 August 2003 was a substantial contributing factor to the injury.
4.The applicant’s incapacity for work resulting from injury to his right shoulder from 9 December 2006 to date and continuing results from the injury sustained on 19 August 2003.
5.The Section 60 expenses incurred by the applicant from 9 December 2006 resulted from the injury on 19 August 2003 and are reasonably necessary expenses.
Orders:
6.Parties are directed to confer and agree on the amounts of weekly compensation to be paid to the applicant from 9 December 2006 to the date of his proposed surgery to stabilise the injury to his right shoulder and thereafter until any reasonable rehabilitation period is complete.
7.In the event that agreement cannot be reached on the amount of weekly compensation to be paid to the applicant then the parties have liberty to apply for reconsideration of that issue under Section 350(3) of the Workplace Injury Management Act 1998.
8.Respondent is to pay the applicant’s costs as agreed or assessed. In any such agreement or assessment it is to be taken into account that the matter is certified as complex and is to have an uplift in costs to the extent of 20%.”
By an appeal filed on 5 December 2007, Parmalat seeks leave to appeal the above determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the quantum at issue on appeal meets the thresholds in section 352 of the 1998 Act.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Respondent Worker submits that an oral hearing is required because the transcript of the hearing is incomplete and there may be errors in the transcription. The Commission forwarded a full copy of the transcript to the parties on 12 February 2008. There are no obvious omissions from the transcript. In any event, the Arbitrator heard no oral evidence and the parties have each had every opportunity to make written submissions dealing with the legal and factual issues raised at the arbitration. If there are errors in the transcript, neither party has brought them to the Commission’s attention in their submissions. I believe that the transcript is adequate to allow the appeal to proceed without an oral hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Employer that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in finding that the need for medical treatment (and any incapacity) after 9 December 2006 resulted from the original injury on 19 August 2003.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
THE EVIDENCE
After the initial dislocation, Mr Cheadle came under the care of his general practitioner, Dr Byrne, and then Dr Haber, orthopaedic surgeon, who saw him on 28 August 2003 and recommended physiotherapy. After his employment was terminated, Mr Cheadle saw Dr Haber on 9 October 2003 and advised that his shoulder had improved.
In 2004 Mr Cheadle started work as a delivery driver in his father’s business known as Illawarra Leisure Foods. He coped with this work, as it did not require heavy lifting (Mr Cheadle’s statement 24 August 2007, paragraph 17). Notwithstanding that it did not require heavy lifting, his shoulder “would come out of its socket” and he pushed it back in (Mr Cheadle’s statement 24 August 2007, paragraph 18).
On 26 April 2005, Mr Cheadle returned to see Dr Haber who recorded the following history at page two of his report of 17 May 2007:
“Mr Cheadle was reviewed on 26 April 2005 having developed more episodes of right shoulder instability. He stated his shoulder had popped out a number of times but appeared to be significantly worse over the previous few months. He felt the shoulder would pop out for approximately 30 seconds and he felt a spontaneous relocation. It was painful following these episodes.”
In the course of making deliveries for Illawarra Leisure Foods on or about 13 May 2005, Mr Cheadle put his right arm up to regain his balance after he stumbled inside his truck and he again dislocated his shoulder. This time he attended on his general practitioner and was put off work and claimed compensation from Allianz Australia Workers Compensation (NSW) Limited (Parmalat’s workers compensation insurer), which was paid (Mr Cheadle’s statement 24 August 2007, paragraph 23).
An MRI scan of the right shoulder on 24 May 2005 revealed an “extensive labral tear”. Dr Haber recommended surgery, which was performed on 26 August 2005 and revealed a “bankart lesion extending to the superior labrum (SLAP) and posterior to the 3 o’clock position. Large Hill-Sachs lesion.” Dr Haber stated that it was imperative that no contact sport be played or “high risk” work-related activities be performed for “at least nine months following surgery”.
In late November 2005, Mr Cheadle returned to work performing office duties and received make up pay from Allianz. He resumed full duties by mid December 2005.
In March 2006, Mr Cheadle started work as a delivery driver with Illawarra Refrigeration Distributors. In respect of the period after the surgery until December 2006, Mr Cheadle said at paragraph 49 of his statement:
“Between surgery in August 2005 and the incident in December 2006 my shoulder had been okay. I was going easy on it. I was performing light delivery work and not playing any physical sport.”
On the evening of 9 December 2006, Mr Cheadle attended a party with some friends at Towradgi, near Wollongong, and was involved in two incidents. The first was at 60 Murranar Road, Towradgi where two males punched him on the left side of his head. He left the premises and a short time later was walking south on Pioneer Road, Towradgi when he came across a group of 15 to 20 people walking towards him. He passed this group and continued walking when some men from the group ran towards him from behind with broken bottles. One of the men tried to punch Mr Cheadle but missed. Mr Cheadle swung his right fist at the assailant and also missed. In throwing this punch, Mr Cheadle felt his right shoulder dislocate (Mr Cheadle’s police statement 18 December 2006, paragraph eight). Several men then assaulted him while he attempted to defend himself with his left arm, being unable to lift his right arm. He was ultimately taken to Wollongong hospital where he received treatment for extensive lacerations and a fractured nose.
Mr Cheadle attended on Dr Haber on 14 December 2006 and gave a history that he re-dislocated his right shoulder during the attack on 9 December 2006. A further MRI scan on 27 December 2006 revealed a complex labral tear “consistent with the Bankart lesion” and a prominent Hill-Sachs defect. Dr Haber recommended further surgery but Allanz declined approval for that procedure.
In his report of 17 May 2007, Dr Haber concluded at page four:
“It is also therefore very relevant that quite an extensive labral tear was noted on his MRI on the 24th May 2005. At arthroscopy on the 26th August 2005 an extensive labral tear was noted as well as a large Hill Sachs lesion.
Therefore these significant changes were noted at his arthroscopy in August 2005 and did place him at higher risk of recurrent instability. The re-dislocation therefore on the 14th December 2006 was an exacerbation of an underlying problem.
As it is with most cases of recurrent instability, the initial incident initiates the instability and with each subsequent dislocation further damage often occurs. Therefore the incident on the 19th August 2003 is a substantial contributing factor to his ongoing instability leaving his shoulder at an increased risk of re-dislocation as occurred in December 2006.”
Dr Limbers examined Mr Cheadle on 15 June 2007 (report 18 June 2007) and concluded that Allianz was not liable for the injury on 9 December 2006 because it was unrelated to the 2003 injury and should be regarded as a new incident because “clearly the shoulder had previously been stable”.
SUBMISSIONS
The Appellant Employer argues:
(a)the need for medical treatment (and any incapacity) after 9 December 2006 resulted from the injuries sustained on that day and not from the injuries sustained at work on 19 August 2003;
(b)the instability referred to by Dr Haber when he saw Mr Cheadle on 23 January 2007 is clearly a legacy of the injury on 9 December 2006;
(c)mere proof that certain events occurred which pre-disposed a worker to subsequent injury will not, of itself, be sufficient to establish that such incapacity “results from a work injury”. What is required is a commonsense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 (‘Kooragang’));
(d)the Arbitrator concluded that the need for medical treatment after 9 December 2006 was the result of the punch Mr Cheadle threw and erred in law by finding the Appellant Employer liable because:
(i)Mr Cheadle acted in self defence, and
(ii)it was foreseeable that Mr Cheadle might use his right arm to defend himself.
(e)the Arbitrator found that there was a novus actus interveniens, but it did not break the chain of causation because it occurred after Mr Cheadle injured his shoulder by throwing the punch;
(f)a defendant is not liable for a second injury for which its negligence has contributed when that injury was brought about by unreasonable conduct even though the unreasonable conduct was foreseeable as a likely result from the original negligence (per McHugh JA in Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 361 (‘Alexander’) referring to M’Kew v Holland [1963] 3 All ER 1621 at 1623 (‘M’Kew’);
(g)the worker fails because either the injury on 9 December 2006 was not reasonably foreseeable and/or because the chain of causation was broken by a novus actus interveniens (Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528 (‘Mahony’), and
(h)the Arbitrator made an “impermissible finding” when he said, “The worker’s attackers realised they were dealing with a one-armed man, as the worker had adopted a protective stance and was displaying his vulnerability when he was attacked” and erred in law to use such a finding to link the results of the assault on 9 December 2006 to the injury at work on 19 August 2003.
The Respondent Worker relies on March v E & H Stramare Pty Ltd and anor (1991) 171 CLR 506 at 515 (‘Stramare’) and argues:
(a)the Appellant Employer does not argue that the dislocations up to 2005 broke the chain of causation. As the Arbitrator accepted the opinion of Dr Haber, it was open to him to find that the dislocation on 9 December 2006 resulted from the injury on 19 August 2003;
(b)a common sense evaluation of the facts supports the Arbitrator’s conclusion. As a matter of “logic and common sense” (Stramare) it makes no sense to regard the actions of the worker on 9 December 2006 as breaking the chain of causation or as a novus actus interveniens. That chain was not terminated because the risk of recurrent dislocation was plainly foreseeable as a consequence of the injury on 19 August 2003;
(c)an injured worker must act “reasonably and carefully” and, if he or she does, then the second injury may be held to have resulted from the first (Kessey v Golledge (1999) 30 MVR 95; [1999]NSWCA 424 at [66] (‘Kessey’));
(d)the decision in M’Kew proceeded from the conclusion that the plaintiff’s injury was the consequence of his independent and unreasonable action (per Mason CJ in Stramare at 517);
(e)Mr Cheadle’s conduct was not unreasonable but was found by the Arbitrator to have been in reasonable self defence when he was caught in a life threatening situation not of his making;
(f)the Arbitrator questioned aspects of Dr Limbers’ report in a manner consistent with Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Mikita’) on the grounds of the adequacy of the questions posed to the doctor, the doctor’s failure to provide explanations for his opinion and his failure to accurately detail the assumed facts upon which he based his opinion;
(g)the Arbitrator accepted Dr Haber’s opinion over that of Dr Limbers’ on the question of causation, and
(h)the risk of recurrent dislocation was generated by the injury on 19 August 2003 and the chain of causation was not broken because the risk of recurrent dislocation was plainly foreseeable as a consequence of that injury.
THE ARBITRATOR’S FINDINGS
The Arbitrator found that:
(a)it is foreseeable that if somebody has an injury they will “take whatever steps they can to defend themselves” (T49.6);
(b)the dislocation on 9 December 2006 occurred because of the latent instability of the shoulder caused by the 2003 work injury (T49.10);
(c)Mr Cheadle was acting in reasonable self defence in “throwing the punch” (T50.1) and his actions were accordingly not unlawful (T50.27);
(d)the significant changes noted at the operation on 26 August 2005 placed Mr Cheadle at “higher risk of recurrent instability” (T50.49) and the re-dislocation on 9 December 2006 was an exacerbation of an underlying problem (T50.51);
(e)the initial incident initiated the instability and with each subsequent dislocation further damage occurs (T50.54);
(f)therefore, the incident on 19 August 2003 was a substantial contributing factor to Mr Cheadle’s instability, leaving his shoulder at increased risk of dislocation as occurred in December 2006 (T50.56);
(g)Dr Limbers provided no amplification of his conclusion, which was a bald statement that he did not believe the current shoulder problem was related to the workplace incident in 2003 (T51.51);
(h)he preferred the opinions of Dr Haber and Dr Meakin (T52.1) in support of Mr Cheadle’s condition being related to the workplace injury;
(i)the “subsequent injury” (in December 2006) was foreseeable and was not too remote (T54.50) and “the throwing of the punch” did not break the chain of causation (T54.53);
(j)the novus actus interveniens occurred when Mr Cheadle was assaulted after he threw the punch and dislocated his shoulder (T55.33), and
(k)he was satisfied that the outcome of the incident where Mr Cheadle threw his fist in self defence was a consequence of the original injury on 19 August 2003.
DISCUSSION AND FINDINGS
The references to the doctrine of remoteness and the authorities on foreseeability are misguided. The doctrine of remoteness has no place in workers compensation law (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at [15]) and the “question of foreseeability does not arise” (Bushby & Anor v Morris & Ors [1980] 1 NSWLR 81 at page 87E (‘Bushby v Morris’)). The test of causation under the workers compensation legislation is whether the incapacity or medical treatment has resulted from the injury. The relevant authority is Kooragang.
The principles discussed in Kooragang are best understood by considering the often-ignored facts in that case. Mr Bates developed pain in his back in 1981 when he had been climbing up and down from his truck excessively. Dr Furey diagnosed advanced discogenic disease aggravated by excessive movements up and down from his truck. Mr Bates was off work from August 1981 until May 1982. He initially coped well but in May 1983 he had been lifting bags of cement when the pain down his leg increased. He was certified fit for light duties but as none was available he ceased work and was paid workers compensation. His local doctor noted him to be distressed because of the delay in reaching a solution to his claim. In May 1986, Dr Furey found him to be “very severely depressed” because of the chronicity of his condition. This condition continued for several years and in March 1992 his compensation payments ceased. On 8 June 1992 Mr Bates died of a myocardial infarction. The trial judge found that the acceleration of Mr Bates’ cardiovascular disease and myocardial infarction resulted, in the relevant sense, from his back injury in 1981.
On appeal Kirby P, Sheller and Powell JJA agreeing, considered the principles of causation in workers compensation claims and noted at 462 that since English authority in 1909:
“…it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour added at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury...is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and ask the question whether the disputed inca or death ‘resulted from’ the work injury which is impugned.”
Applying the above principles, the Court was left with “an unbroken chain of undisputed evidence” (at 464) and his Honour had no difficulty in upholding the trial judge’s finding that Mr Bates’ death had resulted from his back injuries at work in 1981 and 1983. The question arises: can the same be said about Mr Cheadle’s claim?
The evidence comfortably establishes that the recurrent dislocations experienced in 2005 resulted from the initial injury in 2003. That led to the surgery on 26 August 2005, which was successful in stabilising the shoulder, but, I infer from Dr Haber’s evidence, did not leave Mr Cheadle with a normal shoulder. The evidence is particularly scant as to the demands Mr Cheadle’s work placed on his shoulder after he returned to normal duties in December 2005. Mr Cheadle says that his shoulder was “okay”, but he was “going easy on it”, “performing light delivery work”, and not playing any physical sport. Dr Haber observed that whilst Mr Cheadle achieved a good result from the operation on 26 August 2005, the changes noted in his shoulder at that time placed him at higher risk of recurrent instability. As he explained, the initial incident initiates the instability and each subsequent dislocation causes further damage. He considered the December 2006 incident to be an exacerbation of the underlying problem.
The temporal or proximate cause of Mr Cheadle’s dislocation in December 2006 was his attempt to throw a punch with his right fist to defend himself. It is, however, incorrect to suggest that “results from” imports an idea of causation limited to the immediate proximate cause of incapacity or death (Kooragang at 463F). Nor will it be sufficient that events occurred which predisposed a worker to a subsequent injury.
In my view, the injury in 2003 did not merely predispose Mr Cheadle to a subsequent injury. It caused damage to his shoulder in the form of an extensive labral tear and a large Hill-Sachs defect. That damage resulted in right shoulder instability and the need for surgery, liability for which Allianz accepted. That instability was not a ‘subsequent injury’, but was a manifestation of the damage (‘injury’) caused in the initial incident in 2003. Dr Meakin confirmed this view in his report to Allianz on 20 July 2005, where he concluded that the injury to Mr Cheadle’s glenoid labrum of his right shoulder was caused by the work incident on 19 August 2003. The surgery in 2005 helped to stabilise the shoulder, but he was always “at higher risk of recurrent instability” (Dr Haber 17 May 2007, page four). In other words, he had not fully recovered from the effect of the 2003 injury.
It follows that I do not accept the Appellant Employer’s submissions. Its submission that the need for medical treatment has resulted from the incident on 9 December 2006 relies on the most proximate cause, which test has been rejected by Kooragang and ignores the extensive damage done to Mr Cheadle’s shoulder in 2003, which left his shoulder ‘at risk’.
No suggestion of ‘unreasonable conduct’ arises in the present case, though its relevance to the present claim is doubtful in any event. The evidence accepted by the Arbitrator establishes that Mr Cheadle was set upon in an unprovoked attack and made an ‘air swing’ with his right fist/arm in an attempt to defend himself. In doing so he dislocated his vulnerable and previously injured shoulder. That dislocation was a manifestation of the pathology sustained in the 2003 work injury. It was not a ‘new injury’.
Further, it is not a question of whether Mr Cheadle’s conduct on 9 December 2006 was reasonably foreseeable, but whether his condition, for which he now requires further treatment, resulted from his work injury of 2003. The Arbitrator found, on the basis of Dr Haber’s evidence, that it did. He was entitled to do so and his acceptance of Dr Haber’s evidence discloses no error.
The Arbitrator’s reference to there being a novus actus interveniens was a reference to the assault that took place immediately after Mr Cheadle dislocated his shoulder. Assuming that the dislocation had already occurred before the assault, as the Arbitrator found, the finding that the subsequent assault was a novus actus interveniens was irrelevant and of no consequence to the claim.
The issue of a novus actus interveniens is referred to by C P Mills in Workers Compensation (NSW), second edition, 1979, where the author said at 236:
“The concept of an entirely new cause intervening to produce the ensuing incapacity involves the idea of the replacement of the injury, as the cause of the incapacity, by a second incident, again causing incapacity. Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist, and that the incapacity which does exist has resulted from the new cause as the sole cause.” (emphasis added)
The evidence does not establish that the consequences of the 2003 injury had ceased to exist. To the contrary, that injury, and the pathology caused by it, left Mr Cheadle with a higher risk of recurrent instability. That risk became a reality in the December 2006. The pathology revealed in the MRI scan of 27 December 2006 is almost identical to the pathology revealed in the May 2005 scan. Further, whilst Mr Cheadle was working full time at the time of the December 2006 incident, he was “going easy on it” and only “performing light delivery work”. Thus, there was “an underlying incapacity” in the sense that there was a continuing result, or effect, of the earlier injury, but “it need not at the time of the second injury be manifesting itself in the form of continuing economic loss” (per Jacobs in Pyrmont Publishing Co Pty Ltd v Peters [1972] 46 WCR (NSW) 27 at 32). In these circumstances, it is not open to find that the December 2006 incident is the sole cause of Mr Cheadle’s current condition.
Even if, contrary to the Arbitrator’s finding (with which I agree), Mr Cheadle’s current condition has resulted from both his 2003 injury and the 2006 incident that does not prevent the Appellant Employer from being liable for any resulting incapacity or reasonably necessary medical treatment.
In Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1972] 2 NSWLR 435 (‘Cluff’) Reynolds JA (Hope and Glass JJA agreeing) considered the situation where a worker had an injury with one employer which left him vulnerable to increased disability by the effects of further work with a second employer, and held at 439:
“It is well established, if a worker receives an injury in the course of his employment with A which renders him vulnerable to increased disability by the effects of further work; and then, in the employment of B, the work brings about those effects, that it is open to a tribunal of fact to hold that the ultimate incapacity has resulted from the first injury in the employment of A; and it is not to the point that, if the worker had in these circumstances proceeded against B, he might also have obtained an award in respect of the whole extent of his existing incapacity.
It is also not open to doubt that, if a worker receives a disability in the employment of A, and subsequently receives an injury in the employment of B which is causally related to the original disability, it is open to the tribunal to conclude that any incapacity arising after the second injury resulted from the first injury.”
The only difference between Cluff and the present matter is that the December 2006 incident is not employment related. Nevertheless, the principle is the same and applies to Mr Cheadle’s circumstances, thus rendering Parmalat liable for the consequences of the 2003 injury even if the 2006 incident has also contributed to Mr Cheadle current condition.
The High Court reached the same conclusion in Conkey & Sons Ltd v Miller [1977] 51 ALJR 583. In that matter, the deceased worker suffered a work caused myocardial infarction in 1974 from which he never fully recovered, though he did return to work. He ceased work in September 1975 and suffered another (non work-related) myocardial infarction on 13 October 1975, from which he died. Barwick CJ, with whom all other members of the Court agreed, said at 585F:
“Thus the effect of the medical evidence I have quoted would seem to be that the work-caused injury to the heart at the time of the first infarction was so great that, there being no recovery, another infarction, no matter what its immediate cause, would most probably, if indeed not certainly, be fatal. In my opinion, such a statement warrants the conclusion that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by [a] work-caused injury.”
The authorities of Alexander, Mahony, Kessey and M’Kew, were all claims for common law damages and, as a result, are of limited relevance to a claim for compensation under the 1987 Act. To the extent that they are relevant, they support the Arbitrator’s finding that the December 2006 dislocation resulted from the 2003 injury, because the Arbitrator found that Mr Cheadle acted “in reasonable self defence” (T50.1) and, in so doing, did not break the chain of causation. Moreover, the events on the evening of 9 December 2006 did not, in light of the Arbitrator’s finding that Mr Cheadle dislocated his shoulder when he swung his right arm in self defence, amount to a ‘new cause’ which disturbed the sequence of events and could “be described as either unreasonable or extraneous or extrinsic” (per McHugh JA in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428 quoting Lord Wright in The Oropesa [1934] P. at 39). The Arbitrator’s finding was open to him and discloses no error.
The Arbitrator’s allegedly “impermissible finding” (see [31(h)] above) that Mr Cheadle adopted a protective stance and was displaying his vulnerability is of no consequence as it was not relevant to the ultimate finding, namely, that the incident on 9 December 2006 did not break the chain of causation. That finding was open on the evidence and is consistent with accepted authority and discloses no error.
I do not accept that the Arbitrator based his ultimate conclusion on the fact that Mr Cheadle acted in self-defence and that it was foreseeable that Mr Cheadle might use his right arm to defend himself, though he clearly did make those findings. If he did, he erred because those issues were irrelevant to whether the Mr Cheadle’s condition, and his need for hospital and medical treatment, resulted from the 2003 injury. What is required is a commonsense evaluation of the casual chain with due regard to the statutory formula by asking the question: has the incapacity (or need for treatment) “resulted from” the work event in question? The Arbitrator conducted that evaluation and answered that question in the affirmative.
It follows that the Arbitrator’s finding that Mr Cheadle’s actions in throwing a punch did not break the chain of causation (T54.53) was open to him on the evidence and discloses no error. For the reasons outlined above, I agree with it.
DECISION
For the reasons given in this decision, the Arbitrator’s findings and determination dated 13 November 2007 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
28 March 2008
I, NING DONG, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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