Ta v Lucky Import & Export Co

[2004] HCATrans 177

[2004] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2003

B e t w e e n -

VIEN CAO TA

Applicant

and

LUCKY IMPORT & EXPORT CO PTY LTD

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2004, AT 11.43 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   If it pleases the Court, I appear for the applicant.  (instructed by Friedman Lurie Singh)

MS B.A. MANGAN:   If it pleases the Court, I appear for the respondent.   (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honours, there are three points we wish to make before stating very briefly what the special leave point in this case is.  The three preliminary points are as follow.  Firstly, the respondent employer at the trial never gave any evidence, never called any witnesses to show that there was actually deficient alternative light duties for this applicant. 

The second point is this, that at trial all the evidence that was led at trial showed that the respondent employer’s attempts to afford rehabilitation opportunities were either unreasonable or that the employer was unco‑operative.  That evidence came from the applicant himself and also the general practitioner, Dr Nguyen.  Again, even after the close of the applicant plaintiff’s case the employer was not called to contradict that.

My third and final preliminary point is this, that both before the learned trial judge as well as the honourable Full Court there remained extant a conflict of expert medical opinion or evidence in relation to what was the actual residual functional capacity of this applicant.  I think the treating orthopaedic surgeon called on behalf of the applicant said, for instance, that his maximum ability to use his right hand, his dominant hand, was to lift weights of 2 kilograms.

The Full Court delivered supplementary reasons for decision for reasons which are apparent from the supplementary reasons itself.  They commences at page 140 of the application book.

McHUGH J:   This is on that further application, yes.

MR NUGAWELA:   I missed that, your Honour.

McHUGH J:   It is on the further application.  After the court gave decision you got leave to make further submissions.

MR NUGAWELA:   That is right, your Honour Justice McHugh, and the reason is because of the apprehension mentioned at paragraph 2 of the supplementary reasons.  Now, at paragraph 3 of the supplementary reasons at page 142 of the book the Full Court noted the substance of the treating orthopaedic surgeon’s evidence, contrasted that with the evidence of Dr Brash who was the witness called by the respondent.  Moving on at paragraph 4, his Honour the learned trial judge simply said:

“I accept the evidence of Mr Wang … and Dr Brash” –

without resolving the evidential conflicts.  Now, this was a point that was agitated in the notice of appeal to the Full Court.  That is found, for instance, at page 105 of the application book.  Then at paragraph 5 of the supplementary reasons his Honour Justice Pullin accepted:

that there was, and would be, a restriction on the appellant’s ability to lift heavy weights –

and at paragraph 6 extracts what the learned trial judge said:

there were only a few tasks such as lifting 25 kilo bags of rice and the like which would be beyond the plaintiff.

And that was the very point of the notice of appeal in the honourable Full Court below.  If I can take your Honours to page 105 of the book briefly, ground 1 in the notice of appeal before the Full Court and then again at page 110, particular f) and h).  His Honour the learned trial judge actually ‑ ‑ ‑

CALLINAN J:   Mr Nugawela, is not your best point really that there may be a tension on the reasons between the three propositions.  The first is that a plaintiff has to prove the reasonable sequelae of his injuries.  The second is however that the defendant must disentangle the reasonable sequelae from other conditions or circumstances – the Watts v Rake sort of approach – and that the onus lies on the defendant to prove either that there is a failure to mitigate or that mitigation is possible.  I am not saying that the judgment does not necessarily resolve those tensions, but it seems to me to be arguable that somewhere among those tensions you may have an arguable point.

MR NUGAWELA:   Yes, your Honour.

CALLINAN J:   Particularly with respect to mitigation perhaps.  Your client has gone as far as he can in proving the sequelae and that, in effect, there is a shifting evidentiary onus and arguably that has not been discharged.

MR NUGAWELA:   Your Honour Justice Callinan has encapsulated our special leave point which I was going to come to.  It is a point which is recognised in another Full Court decision which we have cited, the matter of Nundle v Hayes, in our book of authorities, your Honour, at paragraph 29

and at paragraph 42 of the reasons for judgment.  That is the very point of the shifting evidential burden.  The applicant had done all he could.  The respondent did not call evidence to demonstrate what really were the actual opportunities available at the workplace against the background of the unresolved expert conflict, I suppose, that adds to the special leave point we say with respect.

CALLINAN J:   It was complicated by a functional overlay too, was it not, which may or may not have been disentangled?  I do not know.

MR NUGAWELA:   Yes, in practically 99 per cent, if I might say, your Honour Justice Callinan, of these types of cases there is always an observation of an exaggeration or subconscious exaggeration beyond what is anatomically justified in the evidence of some experts.  The learned judge did not go so far as to find, nor was it pleaded, that this applicant was a malingerer or had ‑ ‑ ‑

CALLINAN J:   It may not have to be pleaded.  I do not know whether that is necessary.  But what I put to you is really your point, is it not?

MR NUGAWELA:   It is, your Honour Justice Callinan.  Can I just say two more – sorry, your Honours.

McHUGH J:   Yes, you want to mention two matters?

MR NUGAWELA:   Just two more matters in elaboration of our application.  Some six years ago there was a matter called Mills v Shire of Mundaring which ‑ ‑ ‑

McHUGH J:   Do not worry about telling us about that.  What are the points that you are going to make?

MR NUGAWELA:   Your Honours, the other matter that we appeal to the High Court on is on what your Honour Justice McHugh would call the visitorial jurisdiction in the particular circumstances of this case.  Unless, your Honours, there is anything, those are our submissions.

McHUGH J:   Yes, thank you.  Yes, Ms Mangan.

MS MANGAN:   Thank you, your Honour.  I think, your Honours, unless you want me to specifically address on any other area, I think the nub of the appeal has been already defined by your Honours and it is in relation to this shifting burden of proof point.  As far as what was before the Supreme Court is concerned in relation to what the plaintiff proved and establish his case as he is required to do – and I do not think there is any issue about that – if I could turn your Honours’ attention to the evidence that was accepted by the District Court judge, Judge Fenbury.  That is at page 63 in the application book. 

On page 63 of the application book in his judgment Judge Fenbury, after dealing with the injury of course, summarised what the plaintiff did about getting back to work in the context of the work offered to him by the defendant at that time, who is now the respondent, in that the judge found that the plaintiff in September 1998 was required by the respondent’s insurers to attend Work Focus sessions – they are the rehabilitation providers:

An effort was being made to get the plaintiff to return to work with the defendant but he said that he was unable to do so.  He said that his lawyer referred him to Southern Rehabilitation.  It was in about October 1998 that the plaintiff’s surgery for the removal of the small bone in his elbow was required . . . 

The plaintiff said he attempted to return to work and was engaged in replenishing shelves with packets of noodles . . . but ceased –

and then it goes on further to the respondent also offered him data entry duties on the computer, et cetera.  The plaintiff described all of these steps made by the respondent and the respondent’s insurer and the work rehabilitation people to try and get him to up skill, return to work, et cetera.

Now, it was in that context that his Honour made the findings that he did and then it was on the basis of that factual substratum, to use one of your other Honour’s terms, that the decision made by the Supreme Court was made and that was that the plaintiff had not proven his entire case, which was not just to prove that he had an incapacity but that he had an incapacity for employment because the attempts that he made to find employment were meagre and not sufficient for him to then throw the onus on the defendant to show in fact the attempts he made were not inadequate and other opportunities were available to him. 

It was in that context that the findings were made by the Supreme Court that he had not established his entire case and the Full Court turned to its earlier decision in 1989 in Thomas v O’Shea which, although the Full Court has referred to the entire line of authority, is clearly taken from the lines of authority that started with Watts v Rake and proceeding from that line.  In Thomas v O’Shea, I think the Full Court said quite correctly at page 121 application book:

“The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his

pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant –

and all the Full Court simply did and the trial judge simply did in this case was find as a matter of fact and find as a matter of credibility that the plaintiff had not proven the elements – a sufficient amount of his case to cast that burden onto the respondent.  It was a simple finding and it is a finding, I would submit, on all fours with the authorities that are provided by this Court and then by the other State Supreme Courts who deal with this sort of issue all the time.

So, in the circumstances, I would submit there has been no digression from the normal line of authority.  It is a straightforward point and that it is not a point upon which special leave should be granted in this case.

McHUGH J:   Yes, thank you.  Are those your submissions?

MS MANGAN:   I have set out my submissions probably ‑ ‑ ‑

McHUGH J:   No, I was not stopping you.  I thought you were just sitting down, that was all.

MS MANGAN:   I have nothing more to add unless your Honours have any queries or any particular points you would like me to further address, your Honour.

McHUGH J:   Yes, thank you, Ms Mangan.

MS MANGAN:   Thank you.

McHUGH J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honours, I just have four very quick points to make, if I may.  Can I first ask your Honours to take a look at page 61 of the application book, paragraph 11 of the reasons of the learned trial judge, at line 34, the sentence commencing:

The bags or cartons of other goods were not as heavy, although still significantly heavy, being something in the region of perhaps 15‑20 kg.

The second part I want to take your Honours to, if I may, is on page 143, paragraph 5 of the supplementary reasons of the Full Court, where it is said:

His Honour there resolved the difference of opinion between Mr Wang and Dr Brash in favour of the appellant.

And we ask rhetorically, your Honours, how so when earlier it has been noted that Mr Wang said 2 kilograms with the right hand, the dominant hand, and Dr Brash said up to 25 five kilograms with both hands?  How was that resolved in favour of the applicant?

The third point is this, your Honours, that the question of shifting evidential burdens, at least in the context of this type of dispute, remains a point of national importance, particularly in the area of suitability for alternative work.  That, your Honour Justice Callinan, is in addition to, or separate from, decisions of the High Court such as Watts v Rake which deal with the ultimate burden on a defendant to disentangle where what is in issue is an allegation of a failure to mitigate.  This application takes it one step further.  It talks about the evidential burden, not the ultimate burden on a defendant.

The fourth matter, your Honour, by way of final point is that tied in with this notion of suitability for alternative work are two factual issues which were not resolved by the learned judge or by the Full Court, and that is the opportunity to return to work and, secondly, the residual functional capacity.  These were unresolved by the trial judge.  They were unresolved by the Full Court and  they are both relevant to the question of shifting evidential burdens on suitability for residual alternative work.

CALLINAN J:   Mr Nugawela, I think I should tell you that there are two passages in the findings of the primary judge which I think may be a problem for you.  At page 68, paragraph 54, the primary judge said that he had gained:

the impression that his efforts at a return to work were less than fulsome.

Then at page 89, paragraph 156:

Given my views about the extent of the plaintiff’s retained capacity and my acceptance of the evidence that, with assistance in redirection and motivation, and with support, that he should be capable of returning to the work force then a fair way of assessing his loss –

and so on.  Now, that suggests that the primary judge did make all the findings and did make an assessment of working capacity and assessed damages accordingly.  He did have regard to mitigation.  He took a somewhat adverse but not completely adverse view of your client and concluded by saying that there was a working capacity and assessed damages on the basis of it.  There was a lot of conflicting medical evidence.  The primary judge was not bound to take one view or the other.  Sometimes it may not be possible for a primary judge when there is a conflict of expert opinion, and it may not be necessary for a primary judge to form a concluded view about it.  The onus in that respect lies on your client, at least to establish what the injury is and what the reasonable sequelae are.

MR NUGAWELA:   Just three points flow from what your Honour Justice Callinan said.  Going back to paragraph 54 of the primary judge’s reasons, his Honour did conclude in the last three lines importantly:

His marketability as a worker is significantly dependent upon his physical fitness.  He also needs to be able to speak English unless he is employable in a place where English is not spoken.

And then on page 89 which your Honour Justice Callinan took me to at paragraph 156, the first sentence is statement of conclusion.  It is a statement which is dependent upon an acceptance or rejection of other conflicting evidence.  We see the question of the conflicting evidence between Dr Wang and Dr Brash as pivotal to be resolved by the trial judge and the appellate court.

I was going to say something finally before I sit down, unless your Honours have anything further for me.  What trial judge did was overlook favourable evidence that was adduced by the applicant.  Dr Wang was the treating orthopaedic surgeon and he said, “I accept Dr Wang’s evidence”, but yet in the final result, if he did, particularly in the light of his findings as to what the work duties were at paragraph 11 – 15 to 20 kilograms – how could he have resolved it in favour of the applicant? 

So there was a necessary contradiction which was a point which was specifically agitated in the notice of appeal to the Full Court. We say that effectively an appeal by way of rehearing per section 58 of the Supreme Court Act, not a rehearing de novo, not an appeal strictu sensu, but by way of rehearing of fact did not effectively occur because of the way that issue was treated in the supplementary reason.

The only last point, your Honour, is that on the question to mitigate this was not an issue at the trial.  I am looking at the pleadings in the amended defence that was before the learned judge and the defendant did not agitate or allege a failure to mitigate, which is something which must be pleaded and proven re Watts v Rake.  Unless your Honours have anything for us, those are our submissions in reply.

McHUGH J:   Thank you. 

The Court is of the view that an appeal in this matter would have insufficient prospects of success if leave to appeal were granted.  Accordingly, the application is dismissed with costs. 

AT 12.06 PM THE MATTER WAS CONCLUDED