Samoiloff v Grandiflora Nurseries Pty Ltd
[2018] VSC 765
•10 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01852
| MARGARET RUTH SAMOILOFF | Appellant |
| v | |
| GRANDIFLORA NURSERIES PTY LTD | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2018 |
DATE OF JUDGMENT: | 10 December 2018 |
CASE MAY BE CITED AS: | Samoiloff v Grandiflora Nurseries Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 765 |
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WORKERS’ COMPENSATION – Appeal from Magistrates’ Court against dismissal of claim for compensation under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Appellant’s disc prolapse an aggravation of pre-existing cervical spondylosis – Magistrate found appellant did not suffer a ‘work injury’ – Whether Magistrate erred by focusing on ‘significant contributing factor’ test in s 40(3) and not considering ‘arising out of employment’ test in s 39(1) – Tests are separate and distinct but may overlap – No discernible difference in this case – Magistrate’s approach reflected parties’ conduct of hearing – No error – Whether Magistrate’s finding that appellant ‘threw her head back while showering’ was open on the evidence or procedurally unfair – Finding not open – Finding not raised with appellant – Rule in Browne v Dunn – Appeal allowed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 39(1), 40(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S O’Meara QC with Mr A Coote | Slater & Gordon |
| For the Respondent | Mr JP Gorton QC with Mr MJ Hooper | Russell Kennedy |
HER HONOUR:
Grandiflora Nurseries Pty Ltd is a wholesaler of fresh flowers, mainly roses. Margaret Samoiloff worked for Grandiflora for at least 16 years, until she was made redundant in September 2015. She was a dedicated and reliable employee. Her work involved picking and packing orders of flowers and, every second Saturday and Tuesday, taking a truckload of flowers to the Footscray Market. It was mainly physical work that included, on some days, lifting up to 100 buckets, each quarter to half full of water, containing up to 10 bunches of flowers.
On Tuesday 4 August 2015, Ms Samoiloff was due to attend the Footscray Market. This involved an early start – arriving at work at 1.00 a.m. to collect the flowers, and then driving to the market to arrive by 1.30 a.m. At about 12.30 a.m., while she was in the shower at home, she put her head back to wash her hair and suffered severe pain at the back of her head – more severe than anything she had previously encountered. The cause of this pain was later diagnosed as a disc prolapse at C6/7, for which she underwent surgery on 20 October 2015.
Ms Samoiloff claimed compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Her claims were rejected by Grandiflora’s claims agent, and she applied to the Magistrates’ Court for review. The injuries for which she claimed compensation were aggravation of degenerative disc disease in the cervical spine, acute prolapse of the C6/7 disc and radiculopathy. Grandiflora relied on several defences. Two are relevant here:
(a) first, Grandiflora said that the claimed injuries did not arise out of or in the course of Ms Samoiloff’s employment; and
(b) second, it claimed that employment was not a significant contributing factor to the aggravation of her pre-existing condition.
After a hearing on 16 and 17 April 2018, Magistrate Ginnane dismissed the proceeding on 20 April 2018. His Honour gave written reasons for his decision,[1] in which he found that he was satisfied that Ms Samoiloff had not suffered a work injury.
[1]Samoiloff v Grandiflora Nurseries Pty Ltd [2018] VMC 4 (Reasons).
Ms Samoiloff has appealed that decision to this Court, under s 109 of the Magistrates’ Court Act 1989 (Vic). An appeal under s 109 lies on a question of law. Two questions of law, each with multiple parts, were identified in the amended notice of appeal. These were refined in written submissions and argument as follows:
(a) Did the Magistrate err in law by failing to identify and apply the legal test posed by s 39(1) of the WIRC Act (whether the injury arose out of the employment) and, therefore, fail to approach the determination of the question posed by s 40(3) of the WIRC Act (whether employment was a significant contributing factor to the injury) from a ‘working basis’ established by the answer to the question posed by s 39(1)?
(b) Did the Magistrate err in law by making a finding (that Ms Samoiloff threw her head back when showering on 4 August 2015) for which there was no basis in the evidence and which denied her procedural fairness?
For the reasons that follow I have determined that the answers to these questions are:
(a) No. The Magistrate did not err by focusing on the test in s 40(3), namely whether the employment was a significant contributing factor to the injury. This reflected the way in which the hearing was conducted before him.
(b) Yes. There was no evidence to support the Magistrate’s finding that Ms Samoiloff ‘threw her head back when showering on 4 August 2015’.[2] In addition, it was not fair to Ms Samoiloff to make this finding when it had not been raised with her at the hearing.
[2]Reasons, [75].
It follows from those conclusions that the appeal must be allowed.
Interaction between ss 39(1) and 40(3), WIRC Act
The first question of law identified in Ms Samoiloff’s amended notice of appeal is:
Whether, in determining that the appellant had not sustained an injury arising out of or in the course of employment, in that she had ‘not suffered a work injury’, and thereby concluding that the appellant had no entitlement to statutory compensation, the Magistrate –
(a)erred in his approach to s 39(1) of the WIRC Act by failing to ask and determine the general question whether the appellant’s neck condition arose out of or in the course of employment and, instead, focused upon immaterial events and incidents that did not determine the issue or contradict such a conclusion;
(b)erred in adopting the same approach in respect to the issues arising under s 40(3) of the WIRC Act;
(c)misapprehended or misapplied the evidence concerning these issues; and
(d)gave [in]adequate reasons for his determination.
The grounds advanced in support of this question were that the Magistrate erred in his approach to s 39(1) of the WIRC Act by failing to ask and determine the general question whether Ms Samoiloff’s aggravated neck condition arose out of or in the course of employment and, instead, focused upon unrelated and inconsequential events and incidents that did not contradict such a conclusion, and gave legally inadequate reasons for his determination. These errors meant, it was argued, that the Magistrate failed correctly to consider and determine whether employment was a significant contributing factor to the aggravation injury sustained by Ms Samoiloff. Put another way, the contention was that the Magistrate failed to pose and determine the correct sequence of legal tests.
Section 39 of the WIRC Act sets out the circumstances in which a worker is entitled to compensation under the Act. Relevantly here, s 39(1) provides:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
Section 40 then sets out several circumstances in which there is no entitlement to compensation. In this case, s 40(3)(c) is relevant:
There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury—
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
A determination of whether employment was a significant contributing factor to an injury is to be made taking into account the matters set out in item 25 of Schedule 1 to the WIRC Act, being:
(a) the duration of the worker’s current employment;
(b) the nature of the work performed;
(c) the particular tasks of the employment;
(d) the probable development of the injury occurring if that employment had not taken place;
(e) the existence of any hereditary risks;
(f) the life style of the worker;
(g) the activities of the worker outside the workplace.
Ms Samoiloff’s case was that her neck injury arose out of her employment with Grandiflora, and that the employment was a significant contributing factor to the injury, because the heavy and repetitive nature of her work was a cause of degeneration of her cervical spine. Although the aggravation of that condition that caused the disc prolapse occurred at home, the pre-existing condition was work related.
In his Reasons, the Magistrate set out the evidence as to Ms Samoiloff’s employment and work duties, and the onset of her injury on 4 August. He then summarised the medical evidence, in the form of reports tendered by both parties, and identified the competing opinions as to whether the injury was work related. His Honour then moved straight to considering whether employment was a significant contributing factor and the matters set out in Schedule 1, item 25. He did not separately consider whether the injury arose out of the employment, citing authority to the effect that the two tests are difficult to distinguish:[3]
[3]Reasons, [64]–[65].
In Hegedis v Carlton and United Breweries Ltd (2000) 4 VR 296 the worker was injured whilst peeling an apple during a paid break. Ashley J held that employment was a significant contributing factor to the worker’s injury and made the following observation at [51]:
… Nonetheless, save in pretty exceptional cases the causal requirement imported by the phrase ‘arising out of employment’ and that imported by the requirement that employment be a significant contributing factor to injury cover the same ground.
Ashley J’s decision concerning the ‘significant contributing factor’ test was upheld on appeal (Carlton and United Breweries & Anor v Hegedis [2002] VSCA 61) and later endorsed by the Victorian Court of Appeal in Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141. In doing so the Court observed (Maxwell ACJ, Eames and Redlich JJ) at [80]:
If it can be shown that employment was a significant contributing factor, that will usually be sufficient to show that the injury was one ‘arising out of the employment’ … If there is a distinction between the two concepts, it is more theoretical than real in such circumstances. …
As noted, his Honour found that Ms Samoiloff ‘has not suffered a work injury’.[4]
[4]Reasons, [83].
Ms Samoiloff submitted that the Magistrate erred by not considering and determining, under s 39(1), whether her injury arose out of her employment. The WIRC Act poses the two questions sequentially, and they are neither coextensive nor identical.[5] The phrase ‘significant contributing factor’ is not to be treated as a proxy or substitute for the statutory ‘arising out of’ test.[6] A finding as to whether an injury arises out of employment provides ‘a working basis upon which to determine the presence or absence of the required causal connection with employment in most cases.’[7] Hence, it was submitted, his Honour failed to pose and determine the question required by s 39(1) and so misdirected himself. There was also a complaint that the Reasons are legally inadequate because they do not disclose a complete path of reasoning in respect of the issues that the WIRC Act required be addressed.
[5]Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296, [83], [87] (Hegedis).
[6]Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141, [81] (Zlateska).
[7]Hegedis, [87].
It may be accepted that ‘arising out of employment’ and ‘significant contributing factor’ are separate and distinct tests that serve different purposes in the scheme of the WIRC Act. There is, however, a very substantial overlap between the two tests and, in many cases, there will be no discernible difference between them.[8] This is such a case.
[8]Zlateska, [10], [78], [80].
The submissions for Ms Samoiloff did not identify how the application of the two tests sequentially might have led to a different result in this case. She submitted that the question under s 39(1) was whether the aggravation arose out of the heavy and repetitive system of work she performed for Grandiflora. Section 40(3)(c) posed the same questions. She submitted that it did not matter that her acute symptoms had come on at home, because an injury can arise out of employment even though a worker is not working at the time of onset. The same is true of the significant contributing factor test under s 40(3)(c), taking into account the matters set out in item 25 of Schedule 1. Both tests pose questions of factual causation, to be answered using common sense. Neither test requires that employment is the sole cause of an injury.
One possible difference between the two tests may concern the onus of proof. It is the worker who must establish an entitlement to compensation under s 39. It may be that it is for the employer to prove disentitling circumstances under s 40. It is accepted that an employer bears the onus in relation to the defence of reasonable management action in s 40(1).[9] There is apparently no authority as to where the onus lies in relation to the ‘significant contributing factor’ test in s 40(3) or its predecessor, s 82(2C) of the Accident Compensation Act 1985 (Vic). I need not determine that issue, however, because the outcome here did not turn on onus of proof – the Magistrate was satisfied by the evidence adduced by Grandiflora that Ms Samoiloff did not suffer a work injury.
[9]See Pulling v Yarra Ranges Shire Council [2018] VSC 248, [78] (Pulling) and Department of Education v Unsworth [2010] VSCA 77, [57].
That conclusion meant that there was no entitlement to compensation, by virtue of s 40(3) of the WIRC Act. Ms Samoiloff did not persuade me that his Honour might have reached a different conclusion had he first considered the question of whether the injury arose out of the employment, under s 39(1).
In addition, the way the Magistrate approached the questions for his determination reflected the way the parties presented their cases. It is axiomatic that a party is bound by the conduct of the case at trial.[10] In opening, counsel for Grandiflora said that ‘the issue in the case from the defendant’s point of view is whether or not her employment was a significant contributing factor to her cervical spine injury’. It was implicit in that approach that, if Ms Samoiloff succeeded on that question, she would also have established that her injury arose out of the employment. In closing argument, counsel for both parties confined themselves to the question of ‘significant contributing factor’. His Honour’s reasons address the question on which the parties joined issue at trial.
[10]University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 71. See also Jones Lang Lasalle (Vic) Pty Ltd v Korlevski [2012] VSCA 305, [3]–[7] (Warren CJ), [67]–[70] (Neave JA, Ferguson AJA agreeing).
There was no error in the Magistrate’s approach to determining the question of causation by reference only to the ‘significant contributing factor’ test in s 40(3)(c).
Did the Magistrate make a finding that was not open on the evidence, or unfair?
The second question of law set out in the amended notice of appeal was whether –
The Magistrate, in determining that there was not a work injury and accordingly no entitlement to statutory compensation:
(a)failed to pose and determine the correct legal tests;
(b)erred in accepting medical opinions that were premised [on] irrelevant propositions such as that no ‘work injury’ had occurred because the symptoms of injury came on at home or notions [for] which there was no support in the evidence at trial;
(c)made findings [for] which there was no probative supporting evidence; and
(d)deprived the appellant of procedural fairness.
The grounds relied upon in support of this question were that the Magistrate erred in determining that there was no work injury, because that finding proceeded upon findings of fact in respect of which there was no probative supportive evidence or no legally adequate process of reasoning. Several findings of fact were challenged in the amended notice of appeal, but at the hearing Ms Samoiloff concentrated on the finding that she suddenly moved and ‘threw her head back’ when showering at home. She also contended that she was denied procedural fairness in relation to this finding because:
(a) no such proposition had been suggested to her in evidence;
(b) to the contrary, her evidence concerning that event was permitted to stand unchallenged and did not reasonably support any proposition that she had ‘thrown’ or ‘suddenly moved’ her head in the shower; and
(c) no such proposition had been suggested by Grandiflora’s counsel to the Magistrate or to Ms Samoiloff at any point in the trial.
As mentioned, this question of law and the corresponding grounds were refined in written and oral argument. By the end of the hearing it appeared that Ms Samoiloff’s complaint was that the Magistrate had made a finding – that she threw her head back when showering on 4 August 2015 – for which there was no basis in the evidence and which denied her procedural fairness.
What did the Magistrate find?
Before dealing with the submissions about whether the Magistrate’s finding was in error, it is necessary to identify precisely what it was that his Honour found. At [70]–[71] of the Reasons his Honour stated the issues for his determination thus:
Here the incident in the shower is what occasioned the plaintiff’s incapacity for work and so the question is whether it was an incapacity by way of aggravation of a work injury. …
The case proceeded by both counsel on the basis that the injury on 4 August 2015 is an aggravation type injury. The plaintiff contended that the effects of the disease is one [which] precipitated the rupture on 4 August 2015 due to work and should exclude the sudden movement of the head whilst showering as a discrete cause unrelated to employment.
Under the heading ‘Assessing the evidence’ his Honour continued:[11]
At first glance it might seem probable in terms of the plaintiff’s burden of proof that her activities in employment with the defendant performed over many years was a significant contributor to the events on 4 August 2015. However, first impressions can be misleading. In this case I am satisfied they are.
[11]Reasons, [73].
The Magistrate then found that Ms Samoiloff had suffered an earlier episode of neck pain, on the Saturday preceding 4 August 2015, and that it was caused by non-work activity. No complaint is made about this finding. At [75], his Honour found:
The account of the pain that struck the plaintiff in a further domestic setting when she threw her head back when showering on 4 August 2015 occurred a short time after this previous incident.
His Honour then observed that the history recorded by Ms Samoiloff’s doctors – that she had an onset of neck pain towards the end of her shift on 3 August 2015 – was at odds with her oral evidence.
The Reasons went on to deal with matters enumerated in item 25 of Schedule 1. In relation to matter (d) – the probable development of the injury occurring if that employment had not taken place – his Honour referred to the competing neurosurgical opinions of Mr Kevin Siu, for the defendant, and Dr Ales Aliashkevich, for the plaintiff. On that issue, he concluded:[12]
The resolution of the question of cause is not resolved by a mere arithmetic comparison of the number or reports favourable to a work contribution against that number that are to the contrary. Careful consideration of the probative worth of opinions ventured in reports are required and arguably it is made more difficult for a plaintiff in a given case when doctors are not called and questioned about facts underlying expressed opinions. I have found the analysis of the plaintiff’s work activity and her lack of neck symptoms and the occurrence on 4 August 2015 against the background of her constitutional vulnerability better explained by the opinion of Mr Siu and of Associate Professor Thompson than by others and that in the evidence of Mr Siu it is the constitutional condition and vulnerability that framed the incident in the shower and that it was not caused by work in the legal sense. I find his opinion is a better explained account than the contrary opinions by those who have reported for the plaintiff and who are silent on the interconnectedness if at all of the pre-existing non-work condition.
[12]Reasons, [81].
His Honour noted the absence of evidence of any hereditary risk, and the lack of any discussion of Ms Samoiloff’s lifestyle or her activities outside the workplace, but concluded that this was not sufficient to establish her claim.[13] Not only was the Magistrate positively satisfied that she had not discharged her burden of proof, he was satisfied by the evidence adduced by Grandiflora that she had not suffered a work injury.
[13]Reasons, [81]. See also, WIRC Act, Schedule 1, item 25(e), (f) and (g).
While taking care to read the Reasons fairly and as a whole, and not ‘with an eye keenly attuned to the perception of error’,[14] I had difficulty gleaning from the Reasons exactly why his Honour was satisfied that Ms Samoiloff did not suffer a work injury. The medical reports tendered by the parties were not especially helpful on the key issue of whether Ms Samoiloff’s pre-existing condition – described in the reports as cervical spondylosis, or degenerative disease of the cervical spine – was related to the physical work she had performed for Grandiflora over many years. The reports tendered by Ms Samoiloff asserted that her neck injury was work related, while those relied on by Grandiflora asserted that it was not, leaving unexamined whether her work contributed to her pre-existing condition. Perhaps this is why the Reasons appear to assume that the pre-existing condition was not work related. There is, however, no clear path of reasoning to that conclusion.
[14]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Commissioner of State Revenue v Anderson (2004) 22 VAR 181, [33] and Hesse Blind Roller Company Pty Ltd v Hamitovski [2006] VSCA 121 [3] (Ashley JA), [19]–[22] (Redlich JA).
That leaves the earlier finding that the injury occurred when Ms Samoiloff ‘threw her head back when showering on 4 August 2015’.[15] It appears to me that his Honour accepted this as a discrete cause of the injury, unrelated to the employment.[16] At the very least it was a finding that a ‘sudden movement of the head while showering’[17] precipitated her injury, a finding that was material to his Honour’s ultimate conclusion.
[15]Reasons, [75].
[16]Reasons, [71].
[17]Ibid.
Was there any evidence to support the finding?
Ms Samoiloff submitted that there was no evidence that she had injured her neck by any sudden movement of her head or that she had thrown her head in the shower. The evidence was as follows:
(a) The ambulance record noted that she had ‘got into the shower getting ready for work and felt pain in the back of her neck’.
(b) The Casey Hospital records noted ‘sudden onset 10/10 headache … was under shower at time’.
(c) At trial, her evidence in chief was ‘I put my head back to wash my hair under the shower and I – I just had severe pain go straight up the back of my skull and I was screaming’.
(d) In cross-examination the following exchange took place:
So you get up from bed, get straight into the shower at about 12.30 am? --- Yes.
Put your head back? --- Yes.
Extend your head like that to wash your hair under the shower? --- Yes.
And you experience severe pain in the base of your neck radiating up to your head. Is that correct? --- Yes.
…
So you get up from bed, get straight into the shower at about 12.30 am? --- Yes.
Put your head back, extend your head like that to wash your hair under the shower? --- Yes.
As to the movement demonstrated by counsel, it was common ground before me that it was an extension of the neck backwards, and involved no display of head tossing or sudden movement.
(e) Mr Siu’s first report of 5 December 2016 records, in the history taken:
She had to do the night shift that evening and when she was having a shower at home, getting ready to come to work, she had sudden onset of severe pain in the back of her neck.
This history was put to Ms Samoiloff in cross-examination and she confirmed that it was correct.
(f) Mr Siu re-examined Ms Samoiloff on 1 November 2017 and on that occasion noted the following history:
She went home on the evening of 3 August 2015. She had a morning shift for the next morning, so she got up fairly early on the 4 [A]ugust. She had a shower, washed her hair and when she put her head back to wash her hair, she had pain in the back of her neck.
(g) No other medical practitioner recorded a history of sudden movement or throwing of the head.
The first reference to Ms Samoiloff throwing her head appeared in Mr Siu’s second report of 2 November 2017, in providing his opinion in response to specific questions. As to his clinical findings, he wrote:
It is still my opinion that the incident on 4 August 2015, washing her hair, throwing her head back whilst washing her hair, caused an aggravation of cervical spondylosis, but it is not work related.
Asked whether he maintained his previous opinion (that the injury happened at home and therefore was not work related) he explained:
Her symptoms are due to aggravation of pre-existing cervical spondylosis. In the activities of daily living, as a housewife only, it is entirely possible that a disc prolapse could have been caused by throwing her head back in the shower.
These statements were among the extracts from Mr Siu’s reports set out in the Reasons.
Grandiflora submitted that there is no real difference between describing Ms Samoiloff as throwing her head back, and leaning or extending her head back, and that those words can be used interchangeably. I disagree. In the context of considering whether a sudden movement of her head was a discrete cause of her injury, a finding that she threw her head back is materially different from a finding that she put, or leant, or extended her head back.
Next, Grandiflora submitted that it does not matter if evidence was slender, so long as it was there.[18] That submission is plainly correct. However, I cannot accept the submission that the references in Mr Siu’s second report to Ms Samoiloff throwing her head back in the shower were some evidence that she had done so. While a history recorded by a medical practitioner in a report is admissible evidence of the truth of that history,[19] Mr Siu did not note a history from Ms Samoiloff of any sudden movement or throwing of her head. Rather, in the opinion section of his second report he misdescribed the history he had earlier recorded. That misdescription was not, in my view, probative evidence of how Ms Samoiloff moved her head in the shower on the morning of 4 August 2015.
[18]Relying on Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, [78] (Jessup J) and [118] (Bromberg J). See also Rugolino v Howard [2010] VSC 590, [10]–[13].
[19]Pulling, [46]–[47].
Otherwise, Grandiflora could point to no evidence to support a finding that Ms Samoiloff’s injury was precipitated by a sudden movement or throwing of her head.
I conclude that there was no evidence to support the Magistrate’s finding that Ms Samoiloff ‘threw her head back when showering on 4 August 2015’.[20] It follows that this finding, which was material to his Honour’s ultimate conclusion, was not open as a matter of law.
[20]Reasons, [75].
Was the finding procedurally unfair?
Ms Samoiloff also contended that she was denied procedural fairness in relation to the Magistrate’s finding of sudden movement or throwing of her head. Her evidence that she put her head back in the shower was confirmed, not challenged, in cross-examination. There was no suggestion, in cross-examination or in argument, that she had moved her head suddenly. In those circumstances, she submitted, she had no reasonable notice that the finding might be made and was deprived of the opportunity to address what turned out to be a critical issue. In short, she argued that there was a breach of the rule in Browne v Dunn.[21]
[21](1893) 6 R 67, 70–71, extracted in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [71] (Heydon, Crennan and Bell JJ) (Kuhl).
The rule in Browne v Dunn has two aspects. First, there is ‘a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties’.[22] Second, there is ‘a rule relating to the weight or cogency of the evidence’ about which a witness was not cross-examined.[23]
[22]Bulstrode v Trimble [1970] VR 840, 846–7 (Bulstrode); Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, 18 (Allied Pastoral Holdings).
[23]Ibid.
Here, I am concerned with the first aspect of the rule. The need for such a rule was explained by Hunt J in Allied Pastoral Holdings:[24]
There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or qualify the other evidence upon which the challenge is to be based.
[24]Allied Pastoral Holdings, 22–23.
This rule of fairness applies equally to a trial judge as to counsel.[25] A judge should refrain from making a finding of fact that is contrary to a witness’s unchallenged evidence, about which the witness had no opportunity to comment. If the cross-examiner does not challenge the witness, the judge should do so – if necessary by recalling the witness. If no challenge is made, the judge should refrain from making the finding.[26]
[25]Kuhl, [72]–[73], [75] (Heydon, Crennan and Bell JJ); Bale v Mills (2011) 81 NSWLR 498, [64]–[67].
[26]Ibid.
Grandiflora submitted that Ms Samoiloff was not denied procedural fairness, because Mr Siu’s second report was exchanged before the hearing and was tendered by consent. Ms Samoiloff had every opportunity to be heard on Mr Siu’s report. She chose not to cross-examine Mr Siu on his report, and did not make any submission that the opinions he expressed in it did not have a proper factual basis. In those circumstances, Grandiflora submitted, the finding of sudden movement or throwing of her head did not come ‘out of the blue’.[27]
[27]Cf Barrett Burston Malting Co Pty Ltd v Kotzmann [2013] VSC 248, [48].
It is the case that the application of the rule in Browne v Dunn is different where the parties have exchanged written statements of their witnesses’ evidence in chief, in the form of affidavits, witness statements or expert reports.[28] In such a case, it may not be unfair to rely on contradictory evidence that was not put to a witness if, in all the circumstances, it is apparent that the witness had notice of it.
[28]Bulstrode, 846–8.
Here, however, I am not satisfied that Ms Samoiloff or her lawyers were on notice that her claim might be rejected on the basis that her injury was caused by sudden movement or throwing of her head. As mentioned, the history set out in each of Mr Siu’s reports records the incident in the shower in terms that are consistent with Ms Samoiloff’s evidence. The misdescription of the movement of her head in the second report did not affect the opinion that Mr Siu had expressed in his first report. It had no obvious significance as a basis for the complex opinion about causation that he confirmed in his second report. Grandiflora made nothing of it at the hearing, in cross-examination of Ms Samoiloff or in argument. Nor was there any pleading that Ms Samoiloff ‘threw her head in the shower’ and that this was a discrete cause of her injury.
It follows that it was procedurally unfair to make the finding that Ms Samoiloff ‘threw her head back when showering on 4 August 2015’. Grandiflora accepted that a denial of procedural fairness is an error of law.
Disposition
I have concluded that the impugned finding was not open on the evidence and was procedurally unfair. In light of those conclusions, the appeal must be allowed.
Ms Samoiloff seeks orders setting aside the decision and orders of the Magistrate, and remitting the matter to the Magistrates’ Court for hearing in accordance with law.
This is not a case where procedural fairness could have made no difference, given that the finding was material to the Magistrate’s ultimate conclusion that Ms Samoiloff did not have a work injury.[29] Ms Samoiloff swore an affidavit in this proceeding, in which she said that, if it was suggested to her while she was giving evidence that she had moved her head suddenly or thrown it back in the shower, she would have denied it and explained that she simply put her head back under the shower. In those circumstances, the appropriate orders are that the decision and orders of Magistrate Ginnane made on 20 April 2018 are set aside, and that the proceeding is remitted to the Magistrates’ Court for rehearing and determination according to law.
[29]Cf Stead v State Government Insurance Commission (1986) 161 CLR 141, 145–6.
I will hear the parties in relation to the costs of this appeal. The costs of the first hearing in the Magistrates’ Court will be a matter for the Magistrate who rehears the matter.[30]
[30]As will any application for an indemnity certificate under s 8 of the Appeal Costs Act 1998 (Vic).
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