Popovski v Ericsson

[2000] HCATrans 576

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M44 of 2000

B e t w e e n -

TATJANA POPOVSKI

Applicant

and

ERICSSON (AUSTRALIA) PTY LTD

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 11.45 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC:   If the Court pleases, I appear with my learned friend, MR M.J. WAUGH, for the applicant.  (instructed by Ryan Carlisle Thomas)

MR G.A.A. NETTLE, QC:   May it please the Court, I appear with my learned friend, MR N.R. BIRD, for the respondent.  (instructed by Mills Oakley Group)

McHUGH J:   Yes, Mr Gorton.

MR GORTON:   If the Court pleases, this matter does raise a question of general importance to the application of the Accident Compensation Act in Victoria and in respect of similar provisions in New South Wales, at least.

McHUGH J:   Well, it is a worrying matter.  Speaking for myself, I must say I think that your client should have succeeded, as a matter of fact, as did Justice Brooking.  But, it is another factor altogether to say that there was an error of law.

MR GORTON:   Well, it is our submission that there was an error of law and not an error of fact, and that the error of law is one which needs to be corrected, not only for the justice to this particular person, but so that there will be proper consideration and application of the question of significant contributing factor and entitlements to compensation and rights of employers, in all cases in Victoria, because the question of significant contributing factor is applicable to every compensation claim in Victoria.  It is something that needs to be established; it needs to be understood what the ‑ ‑ ‑

McHUGH J:   I understand the general importance of the point, but is there not a difference between cases where the facts having been found, they must come within a fairly definite term such as, say, “access” or “income” – and one can say as a matter of law whether the facts come within that – and cases where the facts are found but the question is whether they come within what I will call an “evaluative expression”, such as negligence, reasonableness or, as in this case, significant contributing factor, which may call for value judgments?  Would you accept there is a distinction between those cases?

MR GORTON:   No, your Honour.  We say that if you are looking at a word such as “income” or “business of farming” or whatever it might be, a word or a phrase, you have to find first the facta probanda, and they have been found in this case.  Then it is the same question each time – and it is always really a matter of judgment as to whether they are going to fall within the term – but its judgment must be ‑ ‑ ‑

McHUGH J:   But once you have an evaluative term, then one is in the area of degree, and minds may differ.  Whereas, with income, given the facts, minds cannot differ; they are either within or without, are they not?

MR GORTON:   Well, I do not know that I am willing to accept that proposition as simply as that.

HAYNE J:   Henceforth all tax cases will be decided unanimously, Mr Gorton.

MR GORTON:   It is really a question of law in the sort of way that it is dealt with in the Collector of Customs v Agfa-Gevaert and the cases referred to therein.  We would say that that case ‑ ‑ ‑

HAYNE J:   But at the end of the day, what is the principle of law that you would have the Court either establish or emphasise?

MR GORTON:   Well, the Court has to reach the conclusion as to whether the facts found by the magistrate compel a conclusion that something is a significant contributing factor to an injury.  It is necessary to determine what the possible scope of the phrase “significant contributing factor” is, and to give – what the law needs is direction as to how the “significant contributing factor” phrase is to be applied in terms of general causation principles.  Does it alter or does it not alter the provisions of causation such as spoken of in March v Stramare, and in a number of more recent cases.  I think your Honour, at least, has dealt with it in Chappel v Hart at some length.

Our argument is the only proper conclusion at law from the facts found, and that is from the relevant facts found, not the later facts that could not have had impact on this question, is that they must be a significant contributing factor within the proper meaning of that phrase.

HAYNE J:   Without seeking to define it exhaustively or absolutely, do you say that “significant contributing factor” is to be understood as positing simply a “but for” test?  Do you say that it is positing a different or more refined test?  What is the bottom line?

MR GORTON:   Can I come back at that in a slightly different way?

HAYNE J:   Yes.

MR GORTON:   The “but for” test is, of course, that, as far as tort and contract at least is concerned, not the exclusive test but a very important test and general considerations of common sense and so on are spoken of as being necessary for causation in the “but for” test.  So that at contract and tort, at least, a wider test than the “but for” test is required.  Our submission in this case is that because you are dealing with a compensation area, the “but for” test is the proper test and the broader, general causation questions, which are posed in a situation where fault is being inquired after rather than just “the fact” of contribution, you do not have to go beyond the “but for” test.

But if you do have to go beyond the “but for” test and apply common sense or the principles that are spoken of in the authorities, you still are required by the Act to take into account certain particular matters that must be considered by the Court.  It is important, also, to determine what the strength and importance of those matters is in determining the question of causation.  So, there is a comparison that needs to be made between “significant contributing factor” and causation generally, and the determination of how that question is to be approached in compensation cases.

HAYNE J:   If, once it is accepted that significant contributing factor involves an element of value judgment, then error of law may, may not, have to be demonstrated by showing taking account of irrelevant matters, failing to take account, or you might be in House v The King territory, I do not know.  But once you have taken the step of valuation of evaluative judgment, then I wonder about what this Court could usefully say beyond, “This case is in or out”.

MR GORTON:   I do not accept – and I hope I have not accepted – that it is an evaluative judgment as such, that falls within “significant contributing factor” ‑ ‑ ‑

HAYNE J:   No, I understand that.

MR GORTON:   That is a phrase which, of course, will apply differently in different cases.  But as a concept, it has boundaries that apply to it, and it is necessary to know what those boundaries are.  It will be a question of application of those boundaries to the found facts which is the question of law and the area in which the defining of the boundaries, or at least are pointing to the way in which the boundaries are to be looked for and found, is something that is of importance in general terms.  In this particular case to this particular person, all the judges, the four of the Supreme Court who have all said they would have found in her favour on the facts as found by the magistrate ‑ ‑ ‑

McHUGH J:   But now, talking about the facts found by the magistrate, the magistrate found this occurred in the course of the employment, which was plainly wrong.  There was no express finding that it arose out of the employment, was there?

MR GORTON:   No, your Honour, but the matter was ‑ ‑ ‑

McHUGH J:   Well, does that not create some problems in the case?

MR GORTON:   No, your Honour, because at the first level of appeal when the appeal from the magistrate was allowed in respect of “significant contributing factor” the matter was to be referred back to the magistrate for a determination of whether it arose out of employment.  That is something still to be resolved in the case.  Whatever happens, though, we would be pretty astonished if there was a finding that it was a significant contributing factor ‑ ‑ ‑

McHUGH J:   Well, there could not be, could there?  I mean, one could have a finding that arose out of and yet find it was not a significant contributing factor, but I do not see how you could go round vice versa.

MR GORTON:   We would endorse that approach, that once it is found this way, there is an inevitability about the finding of it arising out of employment.  That is a question that is still open to be resolved by the magistrate if “significant contributing factor” is compelled on the findings of fact that he has made.  One can see in the analysis by Justice Brooking and the other members of the Court of Appeal, they have taken into account as possible matters that the magistrate might have been directing his attention to facts which took place and affected the applicant’s mental condition and state and incapacity well after the time of onset of the injury.  In other words, she was working, she was exposed to lead, she had the erroneous test conducted on her blood, she then had the birth of the deformed child and the death following that.

From 1993 onwards she was receiving medical treatment for the condition that the magistrate accepted was a morbid grief condition and depression, so that the injury, on his findings of fact, has happened in 1993 and required treatment creating an entitlement to compensation in 1993.  To then look at facts about a subsequent miscarriage, or the subsequent variation in the severity of the condition, and the impact of the subsequent miscarriage on it continuing when she might otherwise have recovered from it, is necessarily taking into account facts which cannot be relevant to the determination of whether there was an injury suffered in 1993, that having been a finding already made by the magistrate that that is when the condition manifested itself.  So, in so far as it is necessary to point to error of approach by the Court of Appeal, and by the magistrate perhaps, they have taken into account factual matters which could not have a bearing on this question.

We thought we set out in our application the relevant factual material found by the magistrate for the determination of whether there was an injury in the first instance.  In the answer to our material, and in the facts set out by Justice Brooking in his judgment, many facts are set out which could not have a bearing on the proper decision-making process.  I refer, perhaps more easily, to page 84 of the application book, he has found at dot point four and five:

This result was erroneous.  The defendant was in no way responsible for the error.
The plaintiff was not aware that the result was erroneous.

Now, something that the plaintiff was not aware of, and something that was not the employer’s fault, are matters that could not be properly considered by a magistrate.  The facts exist but they are irrelevant to the question that he had to consider and appear to have been taken into account.  Then, the last five dot points on that page:

By June or July 1995 her mental state had improved –

includes implicitly a finding of fact that there was a mental state of injury before the improvement.  The question of whether the condition has improved or changed from 1995 onwards is, again, not material to the consideration of what the state was in 1993. 

Those facts are set out as some sort of justification for the magistrate not coming to the inevitable conclusion.  If the magistrate relied on those facts to not come to the inevitable conclusion, or to avoid the inevitable conclusion, he erred in taking into account improper things in so far as one is trying to look at it as a House‑type situation or a discretionary matter.  We do not say it is a discretionary matter, but the judge in the Court of Appeal has reached the state of saying at the end of his judgment:

I do not think it correct to say, either as a proposition of general application or as one confined to the facts of this case, that a finding that the injury would not have been caused to the worker if the employment had not taken place necessitates a finding of “significant contributing factor”.

Now, in that sentence his Honour understated the fact finding by the magistrate that the injury was caused by the work.

HAYNE J:   But that is the rejection simply of a “but for” test, is it not?

MR GORTON:   Yes.  But the rejection of a “but for” test in a situation like this case requires there to be some other postulated explanation to show some supervening or other factor which explains the condition without the causation which is found to be factually present.  In our submission, to say in this case that the “but for” test is not decisive is wrong because the facts found lead to a conclusion that there was a relationship between the employment and the work, and there is nothing else found which would exclude that or constitute some form of novus actus or other explanation.  We are not in the category of saying a person has a head and it gets cut off, therefore, but for the fact he had a head.  We are in a situation where there is a factual, direct relationship.

McHUGH J:   But to come back to the question that Justice Hayne asked you at the commencement of the argument, what is there about the case that warrants the grant of special leave?

MR GORTON:   Well, putting aside – and I do not want to put aside – the importance of the justice of the matter to this person, and that particular individual matter, the importance of this case is that there needs to be direction as to the proper method of consideration of the phrase “significant contributing factor”, for the broad application of compensation law in Victoria.  There is a very similar provision in New South Wales which is dealt with, in part in Mercer, one of the authorities that has been put forward.  Proper resolution of this case by this Court would, in our submission, involve statements as to the approach to be taken to the phrase “significant contributing factor” ‑ ‑ ‑

McHUGH J:   When learned counsel say it is a case requiring the Court to state what the approach should be, it is ‑ ‑ ‑

MR GORTON:   I am sorry, I will withdraw it quickly then.  To explain to us the meaning ‑ ‑ ‑

McHUGH J:   No, no, not to explain it.  The Court decides cases and lays down rules and principles, and special leave questions should be formulated with regard to the concrete, rather than is often the case, perhaps more generally the case, in some very abstract way which is usually quite divorced from the actual facts and circumstances of the case.

MR GORTON:   Well, I am being very clumsy in the way I express it, your Honour.  What we want is a decision in this case about the application of “significant contributing factor” and the “but for” test, or the causation tests in relation to compensation, and we perceive that a decision of that sort will be important, not only for this case, but also for every other compensation claim that is made.  It will not resolve every other claim, but it will be of importance in establishing what the law is in relation to this

matter.  And, knowing what the law is, is very important to both employers and workers in this State.

McHUGH J:   Well, your time is up, Mr Gorton.

MR GORTON:   Thank you, your Honour.

McHUGH J:   We need not hear you, Mr Nettle.

Having regard to the facts found in this case, the Court is of the view that it has insufficient prospects of success of succeeding in this Court to warrant the grant of appeal.  In those circumstances, the application for special leave to appeal is refused with costs.

AT 12.06 PM THE MATTER WAS CONCLUDED