Walsh v Department of Human Services & Anor

[2015] HCATrans 152

[2015] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2014

B e t w e e n -

DENISE WALSH

Applicant

and

DEPARTMENT OF HUMAN SERVICES

First Respondent

DAVID KOTZMAN, BRENDAN HAYMAN, JENNIFER HARMER, JOHN LLOYD AND KEITH ELSNER (AS A MEDICAL PANEL UNDER THE ACCIDENT COMPENSATION ACT 1985)

Second Respondents

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 19 JUNE 2015, AT 9.53 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC:   If the Court pleases, I appear for the applicant with my learned friend, MR J.F. GOLDBERG.  (instructed by Maurice Blackburn Lawyers)

MR M.F. WHEELAHAN:   If the Court pleases, I appear for the first respondent with my learned friend, MR R.D. KUMAR.  (instructed by Hall & Wilcox)

FRENCH CJ:   Yes, Mr Uren.

MR UREN:   If the Court pleases.  The point in this case is whether the finding of the medical panel, which we refer to in our submissions on page 112 of the application book in paragraph 14 and also in the decision or reasons of the medical panel in the application book at pages 6 to 8, as to the applicant’s condition of current work capacity which is defined as:

a present inability arising from an injury such that the worker is not able to return to –

work either in the worker’s pre‑injury employment or in suitable employment, which ‑ ‑ ‑

GAGELER J:   Mr Uren, was that finding adequately summarised by Justice Tate in paragraph 18 of her judgment?

MR UREN:   I think we thought it was.

GAGELER J:   Thank you.

MR UREN:   Although we did not agree with her Honour’s conclusion, I think that there was no – sorry, I will go back a square.  I think she concluded that the panel had not – I will just try and find the actual words.

FRENCH CJ: The question in this case is really ‑ is it any more complexly expressed than by saying the question is whether incapacities caused by injuries unrelated to work and unrelated to the work injury which generates an initial incapacity can be added up for the purposes of section 93C and section 5 to constitute no current capacity.

MR UREN:   Yes, I think we would accept that general proposition.

FRENCH CJ:   The question is whether the Ward proposition is applicable to this case.

MR UREN:   Yes, in part, in any event.  It is certainly clear that the panel found that the applicant had no current work capacity within the terms of the definition.  The point was whether it arose from the workplace injury, and the simple proposition which we put, which has two bases – one is the ordinary meaning of the words “arise from” and the other one is the result of a number of statements of general principle, both in this Court, in the Privy Council and in the New South Wales Court of Appeal – had the effect that if a state of affairs arises from the combined effect of two things and, if that is the case, then surely it arises from each of those things because it must arise from something and, if it arises from each of them in the sense that it would not have existed but for each, then, in our submission, if it arises from each it must arise from the workplace injury if the workplace injury is one of those things.  Now, of course, the point ‑ ‑ ‑

FRENCH CJ:   That depends to some extent upon giving a rather smeared out application to the words “arising from” in terms of the causation analysis which they underpin.

MR UREN:   Well, the causation analysis is one which does not utilise the words, cause or require, direct, approximate or last or anything of those things, but which merely requires that the injury arise from – sorry, I will go back a square – that the incapacity arise from the injury.  With respect, it is not a smeared out application.  It is a direct ‑ ‑ ‑

FRENCH CJ:   It is wider, you say, than “resulting from”, is it not?

MR UREN:   It is wider than “resulting from” and I think there is no doubt that that must be the case.  But even if it was not and the words “resulting from” were used, it is perfectly clear that the injury does arise from something – sorry, I will go back a square.  The state of no current work capacity arises from something and surely it must arise from each of the things which together produce it.  If that is not the case, then it arises from nothing.  But if it arises from each of them then, as the Privy Council said in Bushby, there is no logical basis for distinguishing between the two things which together combine to produce it.  If there is no logical basis for doing that, then it must arise from each and clearly it arises from the first as well as from the second and from the second as well as from the first.

GAGELER J:   What do you say about Justice Nettle’s reasoning in paragraph 8?

MR UREN: Justice Nettle seized, with respect, the wrong section of the Act. His Honour started off with 93, but the point here which arises is under section 93C. Section 93 is the section which relates to the commencement of entitlement; 93C is the section which relates to, at least relevantly here, the conclusion of entitlement and requires it to be the case that the worker at that particular time, at the end of the second period, has no current work capacity arising from an injury. Now, it is accepted that “arising from an injury” means arising from a compensable injury, but we are talking about a disentitlement, not the original entitlement.

It is also to be observed I think that 93 uses the words “results from”, whereas 93C, including the definition of “no current work capacity”, uses the words “arising from” and there may or may not be a sensible argument as to whether the fact that there is a different word choice means different things but, of course, it is certainly a very acceptable proposition that where one statute uses different words in respect of a particular thing then it often has – and in this case perhaps does have – a different meaning.

But the difficulty that we feel the Court of Appeal’s decision presents is that it appears to accept our view about the ordinary meaning of “arise from” and also to accept the accuracy and applicability of the general statements of principle that we have referred to from the cases.  What Justice Tate did, in our submission wrongly, is at page 87 of the application book, to add qualifications to the main cases on which we rely which do not appear in the statements of principle in those particular cases.

In other words, what her Honour decided was that the general statements we referred to in Conkey, Bushby and Calman have to be amended in the fashion that she sets out at the bottom of page 87 of the application book.  That is to say, “an independent injury” has to be:

related to the workplace injury –

which gives a particular meaning to the word “independent” which is not contained in any of the other cases –

the worker becomes totally and permanently incapacitated, the total and permanent incapacity results from the workplace injury –

which is not using the words of the statute –

it results from ‘the concurrent action’ of both injuries.  In other words, where a workplace injury and an independent cause produce consequences by reason of aggravating or accelerating a single underlying condition or disease, or impact upon the same bodily part, the total and permanent incapacity results from the workplace injury.  For example, where a workplace injury causes partial incapacity and subsequently, through an independently causes but nevertheless connected non‑workplace injury, the worker becomes totally and permanently incapacitated, the worker’s employer is liable for the total and permanent incapacity.

So she has introduced concepts in there of connection between the two injuries, apart from the fact that they combine to create the one result, which do not appear in the statements of principle in any of the cases to which we have referred or, indeed, in any other case, and are not required either by the use of the ordinary meaning of “arise from”.

GAGELER J:  The ordinary meaning of “arise from” does not take you very far, does it?  Obviously, it has got a causal element and you have pointed out the logic of your argument, but it also has a policy element and in this context it has a long history.

MR UREN:   Well, with respect, no.  There was at one stage – there are two aspects.  One is that, as was said in I think the Court of Appeal in Morris, there was at one stage a view that there could only be one – I will use the word “cause” – of the incapacity, and that one was usually the thing which occurred last in time.  That was referred to by I think Justice Mahoney in the Switzerland Insurance Case, but since the decision of the Privy Council and, indeed, the New South Wales Court of Appeal in Morris and George, that view no longer pertains and you can have therefore more than one injury from which a condition of incapacity arises.

That was the reason why the case went to the Privy Council. The appellants in that case had – the employers – argued that because of a decision of the Court of Appeal in England, there was only room for one injury from which the incapacity was said to arise and the Privy Council said, no, that is not right. Indeed, the New South Wales Court of Appeal has said, no, that is not right either and in the judgment of Justice Hope when the case was in New South Wales, if I could read a passage from what his Honour had said in [1977] 2 NSWR 552 at 572:

There is, however, another important issue on which I should express an opinion.  In his reasons the President also supports the awards on the ground that the first injury was the cause of the second.

We should say here the President was Justice Moffitt whose views of the law were not the same as those of the other two Justices –

Glass J.A. treats them as independent injuries, and concludes that this Court is entitled to confirm, and should confirm, the awards, even if there were nothing more in the evidence than that the relevant partial and total incapacities resulted from two independent injuries.

I stress the words “independent injuries” –

The authorities have been canvassed in the reasons of the President and Glass J.A., and I do not wish to go over the same ground.  As it seems to me, the decision of the High Court in Conkey & Sons Ltd v. Miller, leads to the conclusion that a tribunal can find that a particular incapacity resulted from each of the two injuries, and make awards against two different employers, even though those injuries are independent injuries.  In Conkey’s Case, the evidence of Dr. Richardson was that the worker’s second (fatal) infarction was, in all probability, totally unrelated to his first infarction, and that the second infarction was not caused by the first infarction.

FRENCH CJ:   The first set up conditions which made the fatality from the second more likely, did it not, because of the scar tissue and so forth?

MR UREN:   Yes, that is in fact true, but the point that we advert to is not so much the individual fact, but what was in fact said ‑ ‑ ‑

FRENCH CJ:   But that was the context in which it was said.

MR UREN:   But the context in which it was said - and indeed the Chief Justice said the injuries were independent.  Now, what the Court of Appeal has done in our case is to take certain factual ingredients of various cases and say, well, they are the reason why the courts made the pronouncements that they did and made the decision that they did.  In other words, to take the bit about one body part, it is said that a necessary connection exists where the two injuries are to the same body part.

So that if a person has a leg injury at work and has a later leg injury to the same leg, the total incapacity then results from the first injury, but if the injury is to the other leg, then it is not, which seems to us, with respect, to be a completely indefensible proposition as a matter of common sense.  But the point we make is the matters that ‑ ‑ ‑

FRENCH CJ:   This is the “stand‑by eye” proposition.

MR UREN:   Yes, that is right, and the “stand‑by eye” proposition is one which was given a fair amount of air in Ward which we will refer to shortly, but the point we make is that none of the qualifications which Justice Tate expressed in the passage to which we have referred are in fact begot from the reasons of the court in any of the cases that we have referred.  All that has been done is that in an endeavour to reconcile Ward which is in fact irreconcilable with these propositions and these cases with some nexus, bits of facts have been taken out of various cases which did not appear to the courts who decided those cases to be of any relevance whatsoever.

FRENCH CJ:   Can I just ask, at page 83, paragraph 98 in the judgment of Justice Tate, she attributes to your client the proposition that Calman, Bushby and Conkey:

stand for the principle that an incapacity can result from an earlier compensable injury even if there has been a subsequent independent non‑compensable injury which contributed to the incapacity.

Is that a sufficient statement of the principle for which you contend?

MR UREN:   Yes, I think it is, and also it is what the High Court said in Calman.  It is taken directly from Calman.  So it is, if I might respectfully say so, of excellent authority.  Could I take the Court while it has the decision of Justice Tate in front of it to a number of things which really, in our submission, do stand out?  At page 79 of the application book at paragraph 90 the Court will see a reference to what was said by Justice Hope in the Morris Case in the Court of Appeal in New South Wales.  At about line 15 her Honour said:

However, he –

that is Justice Hope –

recognised that, while there might not be a requirement for a causal connection, there is a requirement for a nexus between the injuries, which nexus can be satisfied by both injuries occurring to the same bodily part.

Now, with respect, you can read what Justice Hope said until you are blue in the face, but he did not say there was a requirement for a nexus between the injuries, as appears from the passage which her Honour refers to at the bottom of the page.  He said there must be a nexus between the first injury and the incapacity, not a nexus between the two injuries.  That is a clear error, in our respectful submission.  Looking for instance at pages 84 and 85 of her Honour’s reasons, in paragraph 100 – I will go back a square.  Her Honour accepts our proposition in one sense, at paragraph 99:

If Walsh was correct in identifying the principle for which Calman stood, Calman would indeed have implicitly over‑ruled Ward because Ward expressly rejected the view that a worker’s total incapacity can be said to result from a compensable injury –

et cetera.  But her Honour thought we had not correctly identified the principle for which Calman stands.  Now, we do not apologise for saying that we thought the principle for which Calman stood was the principle

which the court in fact stated which….on which we relied extensively.  But then her Honour went on to say:

In my opinion, Calman recognises the need for a nexus to exist between a compensable injury that causes partial incapacity and a later independent non‑employment injury –

Now, again, one can read Calman as often as one likes, but we will not find any recognition of a need for a nexus to exist between the two injuries.  Nothing was said about that.  What her Honour really meant was, in that particular case there was a nexus.  Now, we have disputed the conclusion that her Honour came to in that respect, but the simple fact is, when her Honour says “Calman recognises the need for a nexus” in 100 and 101, that view does not get any support from anything said in the case and ‑ ‑ ‑

FRENCH CJ:   I think that is your time, Mr Uren.

MR UREN:   If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Wheelahan.

MR WHEELAHAN:   Your Honours, the relevant statutory phrase is “present inability arising from an injury”.  In our submission, that points to a nexus that must exist between the inability and the injury.  At a factual level, a nexus such as that will involve questions of degree and value judgment, but the effect of Ward and in particular the propositions developed by the Chief Justice, Justice Latham, commencing at page 130 and also picked up by Sir Owen Dixon at page 141, is to place a legal limitation on what is otherwise a phrase with open‑ended operation.

Now, in our submission, the phrase in the 1985 Victorian Act should not be construed if the pages of the law reports were blank, to borrow a phrase used by Sir Harry Gibbs in another context.  In our submission, as Justice Tate correctly identified, with respect, Chief Justice Latham looked at the problem through the lens of causation and his Honour’s analysis is to apply a legal doctrine of causation to the necessary nexus that arises from the statute.

In our submission, to adopt the applicant’s interpretation of the relevant phrase will have the prospect of leading to indefinite liability and to use an example picked by Chief Justice Latham at page 131 of Ward, it would allow a worker to aggregate the consequences of an injury together with the consequences of old age, and then ‑ ‑ ‑

FRENCH CJ:   This is really going to the merits of the argument.  As a consequential or a consequentialist proposition it may reinforce the notion

that there is some importance in the point, which is what we are concerned about for the purposes of special leave.

MR WHEELAHAN:   In our submission, the relevant exception for the purposes of the present case identified by Ward is that one cannot amalgamate the consequences of the compensable injury with the consequences of a completely independent event, and they are the facts in this case and one of the examples of an independent event is old age, and our submission at a policy level is, if that were not correct, there would be no limitations on the operation of causal phrases such as this appearing in the 1985 Victorian Act and similar phrases appearing in legislation of the other States and Territories.

In our submission, Justice Tate was correct to identify at application book page 73, paragraph 74 that to accept the applicant’s submission in this case “would lead to absurdity” because, as her Honour develops at paragraph 78, it would lead to unlimited breadth of an employer’s liability and her Honour correctly identified those considerations as underlying the considerations referred to by Chief Justice Latham and Sir Owen Dixon in Ward.

FRENCH CJ:   So your proposition is it is an important point that her Honour got it right?

MR WHEELAHAN:   Yes, and there is no reason to doubt what had been decided in Ward.

GAGELER J:   Is there any reason to think that the Victorian Parliament adopted some different policy position from that which was stated in Ward in 1985?

MR WHEELAHAN:   The relevant amendment – the relevant phrase was introduced by way of amendment to the Victorian Act in 1997 by the Accident Compensation (Miscellaneous Amendment) Act 1997. We have not troubled the Court with the amending Act or to any extrinsic material around the amending Act, but we would make the general submission that at that point in time containment of workers’ compensation costs was at least a relevant consideration. If the Court pleases, they are our submissions.

FRENCH CJ:   Yes, Mr Uren.

MR UREN:   If the Court pleases, if I could take the Court to what Justice Latham said at 137 of the report in 61 CLR, his Honour – also could I deal with the normative aspect just very quickly?  The object of workers’ compensation is not the liability of the employer, but it is the compensation of the worker for a state of affairs which arises from employment. 

The liability of the employer is of course to pay – now satisfied by other means – but the fact is the object of the statute is not to impose liability on people; it is to compensate workers for conditions which are work related.  Therefore, what are said to be the normative conditions or normative arguments relating to liability in tort and who should pay for what sort of damage and so forth are in fact completely irrelevant.

All we do is strictly point to the text of the Act as this Court has often said one should start off with – see what the text says and what the ordinary meaning of the text is.  The ordinary meaning of the text, in our submission, is what we have taken from the various cases, that is to say, something which is the result of the combined effect of two things clearly arises from each of them.  If that is the case, then it arises from the first as well as from the second.  But looking at what Chief Justice Latham said at 137, his Honour said:

In my opinion, it is sufficiently clear that the commission, to use its own language, found that the total and permanent disablement from which the worker admittedly suffers was due to two causes operating concurrently, one only of which was an injury within the meaning of the Act.  Upon the basis of this finding the total and permanent disablement of the applicant cannot be described as a disablement which resulted from the injury.  It resulted from the combination of heart disease with the injury.

So what his Honour said there is, in our submission, completely inconsistent with what was said by the Privy Council in Bushby and also by the other pronouncements of the courts to which we have referred.  What his Honour said was you cannot have a state of permanent disablement if it arises from two causes operating concurrently – sorry, you cannot in that state of affairs say it arose from the first, because it arises from the combination.  Now, in our submission, that is not the result of the ordinary meaning of the words and it is inconsistent with what we have got from the other cases.

It is also noticeable that our learned friends have not taken any of the cases on which we have relied and said that the statements of principle which the courts in those cases have expressed are not applicable on their terms in the present case.  All they have done is gone back to Ward which has problems with it which are adverted to by Justice Dixon in his judgment at 141 where his conclusion was based on an old House of Lords authority which he said precluded him “from giving an affirmative answer to the question” in favour of the worker.

His Honour’s reasons are not, in our submission, based on anything but the authority of decisions of the House of Lords which of course this Court now no longer considers itself bound by, and his Honour’s views as to what the situation might otherwise have been might be taken from his extensive reference to what was said by Lord Justice Scrutton who said at 142:

If there were no authorities, I think the court could see its way clearly.

Well, the court was not able to do that in England or it seems in 1938 in this Court because the House of Lords in the UK had said something different beforehand.  But it would seem perfectly clear, in our submission, that when his Honour Justice Dixon said at 144:

it is, in my opinion, impossible, consistently with these decisions, to hold that the total disablement results from the injury -

that he made his decision based on that authority on the construction of the UK - if the Court pleases.

FRENCH CJ:   Thank you, Mr Uren. 

This application concerns the construction and application of section 93C and associated provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). In our opinion the decision of the Court of Appeal of the Supreme Court of Victoria on the facts of this case was correct and special leave should be refused with costs.

AT 10.26 AM THE MATTER WAS CONCLUDED