Zlateska v Consolidated Cleaning Services Pty Ltd
[2006] VSCA 141
•7 July 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3760 of 2005
| LENKA ZLATESKA |
| Appellant |
| v. |
| CONSOLIDATED CLEANING SERVICES PTY LTD & NRMA WORKERS COMPENSATION (VIC) LTD |
| Respondents |
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JUDGES: | MAXWELL, A.C.J., EAMES and REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 March 2006 | |
DATE OF JUDGMENT: | 7 July 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 141 | |
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ACCIDENT COMPENSATION – Entitlement to statutory benefits – Inquiry said to have been caused by act of employer - Worker with non-compensable knee injury required by supervisor to obtain medical clearance before continuing work as a cleaner – Worker psychologically vulnerable and traumatised by request – Whether worker suffered injury “arising out of employment” – Sufficient for worker to show that employer’s act (or omission) was a cause of the injury – Need not be sole or dominant cause - Question of causation to be determined as a matter of common sense – Worker not required to prove that employment created “special exposure” to injury or “special risk” of injury – Employer must take worker as it finds her – Special vulnerability of worker does not affect causation –Not necessary to prove that work event a significant contributing factor to injury – Accident Compensation Act 1985 s.82(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.P. Gorton, Q.C. with | John Dellios & Associates |
| For the Respondents | Mr J.J. Noonan, S.C. with Mr I.S. Gourlay | Wisewoulds |
MAXWELL, A.C.J.,
EAMES, J.A.,
REDLICH, J.A.:
The judgment of the Court was delivered by Eames, J.A.
This appeal raises for decision a question concerning the interpretation of s.82(1) of the Accident Compensation Act 1985 (“the Act”). The analysis which follows is, of necessity, lengthy and detailed. It may therefore be of assistance if we first summarise the conclusions we have reached on the interpretation issues. Before we do so, we should identify more precisely the question which arises.
Subsection 82(1), as in force at the time of the injury sustained by the appellant (“Z”), provided as follows:
“(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.”
The underlined words were inserted by Act 67/1992.
On its face, the provision comprised two limbs, and the entitlement to compensation depended on the worker satisfying both. That is, to establish the entitlement, the worker needed to show that –
(a) the injury arose out of or in the course of his/her employment; and
(b) the employment was a significant contributing factor to the injury.
In May 2002, however, this Court held that the second limb of s.82(1) was inoperative. In dismissing an appeal from Ashley J,[1] the Court adopted his Honour’s reasons for concluding that the ”significant contributing factor” requirement was intended to apply only where the injury in question fell within paragraph (b) or (c) of the definition of “injury”[2]. (At that time, each of those paragraphs expressly included as an element of the definition the requirement that the employment have been a significant contributing factor to the injury).[3]
[1]Hegedis v Carlton & United Breweries [2000] VSC 380.
[2]Hegedis v Carlton & United Breweries [2002] VSCA 61. An application for special leave to appeal to the High Court was refused.
[3]See now ss.82(2B) and (2C).
The redundant second limb of s.82(1) was subsequently removed by amending legislation in 2003.[4] The successive effect of the Hegedis decision and the 2003 amendment is that it is both necessary and sufficient under s.82(1) for the worker to show that he/she sustained injury “arising out of or in the course of” his/her employment. (That was the position before the 2003 amendment, and remains the position as the Act now stands.)
[4]Accident Compensation and Transport Accident Acts (Amendment) Act 2003 s.3(3).
This appeal concerns only the first of these alternatives. Z claims to have sustained injury “arising out of” her employment. Specifically, her case is that her injury resulted from something said to her by the employer.
Employer’s act or omission causes injury: summary of conclusions
We summarise our conclusions as follows. We are presently concerned with a typical claim under s.82(1), where the injury is said to have resulted from the act or omission of the employer ( including any servant or agent of the employer). The question which falls for consideration is whether it was an injury arising out of the worker's employment. The words “arising out of” the employment have long been recognised as requiring a causal connection between the employment or its incident and the injury.[5]
[5]Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556 per Dixon CJ.
For the reasons set out below, where it can be shown on the balance of probabilities that the act or omission of the employer was a cause of the injury, the worker will have established a sufficient connection to their employment to characterise the injury as “arising out of” their employment. (There may be exceptions to the generality of this proposition but we cannot for the present conceive of any. Nor did either counsel suggest any exceptions when this proposition was put to them by the President in the hearing.)
The question of causation is a matter of common sense. It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any "special risk" of or "special exposure" to injury.
Under the present legislative scheme, save in special circumstances with which we are not concerned,[6] it is no longer necessary to show that the employment was a significant contributing factor to the injury. But the circumstances will be rare where it can be said that the injury does not arise out of the employment if the employment was a significant contributing factor.
[6]See s.82(2B) and (2C).
In determining whether the act or omission of the employer was a cause of the injury, the employer must take the worker as it finds him/her. Any special susceptibility or vulnerability on the part of the worker may explain why the particular act or omission is of causal significance. The fact that the act or omission would not have caused injury to a worker who did not have the susceptibility or vulnerability of the injured worker does not alter the causal character of the act or omission.
The circumstances of the injury
In 1990 Z commenced employment as a cleaner for a company which, in 2000, was taken over by the first respondent (“CCS”). At that time she was interviewed for continued employment by a representative of CCS, who noted of her composure during the interview: “Teary . . needs a job for home repay … needs Sat and Sun to pay loan … needs day shift to support children … help! Very sad pleading for a job … depressed … children … single mum paying off loan.” Z was a divorcee, and was raising several children with little or no assistance from her former husband.
The last day on which she performed duties with CCS was 30 May 2002. She was then aged 45 years. For some five years prior to that date she had been assigned by her employers to work, full time, at Crown Casino.
The events of 30 May 2002 followed an earlier event, on 14 March 2002. On that day Z, having finished her work for the day at the casino, went shopping. She slipped over in a fruit shop, landing heavily on her left knee. X-rays and an ultrasound subsequently showed that she had injured the ligaments of the knee and had a possible cracked fracture of the lateral condyle. She received a medical certificate from her general practitioner, Dr Gorgioski. The certificate placed her off work for ten days. She then returned to work and continued her normal duties. On 16 April she again attended her medical practitioner with complaints of left knee pain and was again given a medical certificate, to be off work until 18 April 2002. Her doctor referred her to an orthopaedic specialist on 22 April 2002. That Z suffered a serious knee injury is not disputed[7]. That, however, is not the injury on which her claim for compensation is based.
[7]On 2 July 2003 a medial meniscectomy was performed on her left knee.
On 29 May 2002 Z returned to Dr Gorgioski, again complaining of pain to the left knee, and was given a certificate to be off work for one day. She returned to work on 30 May 2002.
Upon arriving at work on 30 May 2002, Z provided the medical certificate to her supervisor, Clive McNamara. Several conversations then took place between them. In the proceedings in the County Court out of which this appeal arose, the learned trial judge found that, where there was any divergence in the two accounts of what occurred, she preferred the evidence of Mr McNamara.
Z’s account is set out in the following passages of her Honour’s judgment. The italicised words are taken from the transcript:
“9.1Upon returning to work the Plaintiff said that she handed her certificate to her supervisor ‘Clive’ and had the following conversation [Tr. 17-18]: He asked me why I didn’t come yesterday. I said, ‘I feel a little bit more pain from knee, that’s why I didn’t come.’ After, he said to me, ‘Sorry, you can’t work here, you must go to your doctor to get certificate clearance. By the rules we’re not allowed to take you to work.’ … because you injured in other place and that’s why we’re not allowed to take you, unless you go back to your doctor to get 100 per cent certificate clearance…And I said, ‘Why? I work two months and everyone know of when injury I tell straight away, that night, no one say nothing. Now, after 2 months, for one day I didn’t come. Why are you doing it to me? You know I am by myself, I have to pay mortgage for the house, I worry, I get (indistinct), ‘and then after he say, ‘Sorry, this is not my problem’ and he says, ‘Go back to your area, continue to work.’ After I go back to my area I start to work and after half an hour, or maybe, he come upstairs again, he say – before he sent me upstairs he said, ‘I have to call someone to replace for you and go up stairs, continue do your job.’ I go but I feel terrible here. I do my job but I feel really bad. After a little while he come upstairs with the mobile, he was talking with somebody else, I don’t know who, and after he say, ‘Don’t get stressed, don’t get panic, you by self, you can go to Centrelink because you are on your own, the Centrelink help you, and go tell the solicitor, sue the fruit shop.’ I said, ‘I don’t need Centrelink, I don’t need the lawyer, I don’t need nothing, I need the job, I need the money. I am own, I have to pay mortgage, I have to pay bills, I have to live, I have to – I need money.’ He said, “That’s not my problem and I no have time discuss with you, sorry.’ That’s it. After 9 o’clock he come, five past nine, he say, ‘give me the radio, go back to – you sign, and tell me why are you (Through interpreter) to record down the time that I work, to inform the lady, ‘So that that can be relayed to the other lady so that she knows where to start work from.’ I handed over the radio and I informed her where I did the work to, I signed in and I left. –(Direct) I feel shock, I think I feel I lost everything, I lost everything on my house, I losing my house, my bank take my house. I work hard for that house, I work two jobs, full-time and part-time, I need money. I have to live, I have to pay bills. I have to work. I feel really bad here, I don’t know who I am at that moment.—I get numb, I think I lost all my work. I feel really, really bad.
9.2Under cross examination the Plaintiff insisted that she would have been seen limping on previous occasions but she still did her work. She had not complained of any pain to her Supervisor. She did not understand why her Supervisor now told her to stop work. He shouted at her when he called her into the baby changing room. She denied that he was trying to protect her [Tr. 35].”
The account given by Mr McNamara was summarised by her Honour as follows:
“9.3The account given by Clive McNamara of his encounter with the Plaintiff varies in some significant respects.
First, the Plaintiff would have handed in her medical certificate for the previous day when she signed on for work;
Secondly, he describes the next encounter as follows:
It took place outside Village escalators …[Tr. 179]. She was limping and she looked like she was in pain… The knee was obviously putting pressure when she had to walk around the floor… I thought that she couldn’t do her job safely [Tr. 198]. …when I approached her, she was upset, but obviously I think because of her leg and she had tears in her eyes [Tr. 182].
I asked her what happened to her leg. She said that she had a fall at a greengrocer’s and her leg was sore and then she was emotionally stressed about the incident. I said to her that I think it’s the best thing for us that if she goes home because we didn’t want to put any more pressure on her leg and to get a medical clearance that she come back to work…[in approaching her]… My intent was to actually get her to go to a doctor to have a look at her leg and go from there… A medical clearance from a doctor to say that she was actually fit to come back to work because I didn’t want any more aggravation of her leg…
I suggested to her that, you know, that we can look at alternative things. We might have to look at down the track, if she can’t come back to work, looking at you know, maybe Centrelink or taking holidays, things like that. [Tr. 180-181].I said to her that I was going to replace her and she said she didn’t want to go home, I said ‘No, I have to send you home because you’re not well to work… I’m going to go and find someone to replace you’ because it was mid-morning I think it was. And I asked her if she wanted to go straight away or was she happy to hang around for a little bit. The Plaintiff went home after about an hour.
9.4Mr McNamara indicated that he spoke calmly to the Plaintiff, he was not aware of any difficulties communicating with her and he did not sack her.
9.5Under cross examination Mr McNamara said that the Plaintiff had complained about shoulder pain but he could not recall if she had complained about her knee since the fruit shop incident [Tr. 189]. He agreed that she became upset when he spoke to her but… She was emotional when I approached her.
9.7When the Plaintiff’s account of their conversation was put to him, Mr McNamara acknowledged certain parts, could not recall whether she said certain things and denied other parts [Tr. 192-194]. In particular he denied getting angry and saying words to the effect that it was not his problem and she should go back to work until a replacement was found. He acknowledged making a reference to Centrelink but in the context of further options which may be considered down the track and other benefits which might be available.”
In answer to questions in cross-examination, Mr McNamara agreed that Z was emotionally upset after he had had his two discussions with her.
Z gave evidence that after her conversation with McNamara she departed from work, in the following state, as her Honour recorded:
“9.8…I leave the casino and I take the train. I forgot, I was confused, I think too much, I feel shock, I forgot because I leave the car on the station, Thomastown. I get off at Reservoir, I go in the parking, looking, looking everywhere, I couldn’t find my car. After the people look at me and say, ‘You looking for something?’ I don’t know where I put my car, and after I remember, oh, the car in Thomastown Station. I have to go other side to take the train, I go back to the Thomastown—I go home, my daughter she live at that time close to me. She come, she say, ‘Mum, why you come home?’ I said – I explain what’s happened to me, I go back to the doctor, my - - - Gorgioski. –I explained to him. –I feel really, really bad. I go in but I don’t know why I’m going, like lost. I thinking all the time in my head.”
Under cross-examination, Z agreed that she had been sent home to get a certificate from her doctor, whom she saw that evening. She agreed that she had not been sacked by her employer on 30 May 2002 and that she had never resigned or been dismissed. She insisted, however, that she had been stopped from working by her supervisor, when she needed to keep working.
Z’s medical evidence
Dr Gorgioski gave evidence that Z had requested a certificate that declared her fit for work but he did not give her any certificate at all. He said that Z told him that she needed to work, but she also complained of knee pain. Notwithstanding his stated opinion that Z’s knee injury would not have stopped her from continuing to work, Dr Gorgioski was unable to give what her Honour regarded as a satisfactory explanation for not having supplied the requested certificate declaring Z fit for work.
Dr Gorgioski said that on 30 May Z “was so upset and distressed, everything just fell apart, she was not fit to go back since …” He said that he did not think it was proper to issue her with any kind of certificate “because, to my mind and in my impression, she was still fit to work and she was working at that time”. Dr Gorgioski said, referring to his notes:
“That day it says she was very upset because she was sent off from work. She was very stressed and she was in distress. She wanted to see a solicitor, she talked to me about that and I find her unfit for work then and I give her two days of certificates … I think at that stage she was psychologically very distressed and she was not able to go back to work.”
Z returned to see Dr Gorgioski on the following day, 31 May 2002. She said in her evidence that in the period of 30 to 31 May she felt depression; she could not sleep. She kept thinking that she would lose her house and lose everything. “I felt very lost. I didn’t know where I was and I felt like a big lump in my chest.” She was crying and upset. She saw Dr Gorgioski on 31 May 2002 and, according to her Honour, he noted her account of the previous day’s events as follows:
“She told me that she went to work that day and ... ‘because of the limping’, that’s what she said, and she was sent back home and that she was very upset. She told me that she wanted to work, she needed to work, but she still complained of her knee pain and there was no medication or any certificate issued that day, probably just consultations and talking to the patient.”[8]
Dr Gorgioski said of Z’s mental state, and any changes to it between 30 and 31 May:
“A fairly big change but because all of it was following the psychological stress and conditions. It is not uncommon that she came back the following day even more distressed than the day before, because of everything what’s happened…I guess everything falls apart when she was told to go home and not to come back to work, or something like that.”
[8]Judgment, at [9.12].
Dr Gorgioski gave standard medical certificates to Z for incapacity for work, until March 2003. He then provided WorkCover certificates for incapacity due to stress and physical injuries. Later WorkCover certificates were provided through her psychiatrist, Dr Wahr. Dr Gorgioski denied that she had been off work primarily because of her knee injury. Dr Gorgioski said that in his opinion she was now unfit to work, due predominantly to her psychiatric condition, and that she would require psychiatric treatment for a very long time. Dr Gorgioski first prescribed a tranquiliser (Murelax) on 22 June 2002 and then prescribed the antidepressant Prothiaden on 13 July 2002, and subsequently Cipramil, and then Aropax, on 1 November 2002.
From February 2003 Dr Wahr treated Z, and continued Murelax as both a tranquiliser and sedative. Dr Wahr gave evidence that he had been treating Z every three or four weeks since February 2003 but was now seeing her more frequently, every couple of weeks. She suffered anxiety and panic attacks.
Dr Wahr gave evidence that Z found her experience in the workplace extremely distressing and traumatic. In his opinion it was a significant factor in setting off an ongoing reaction. He said:
“Something happened which was traumatically experienced by this lady, which kind of grew over the next day or two and grew further into a well-established condition which she has now.”
Dr Wahr conceded that he did not have a full history from Z as to what had occurred at work. When asked whether her reaction was due to what had occurred at the workplace or was a reaction to what subsequently occurred, he said that he would not be of great assistance to the Court in relation to what happened in the work situation, nor as to what happened about the refusal to provide a certificate to her. He said, however, that something had happened that was terribly distressing to Z, and as a result she had gone to pieces and become chronic.
Dr Wahr said of the work event, that
“ . . . something happened in the work situation which caused this lady to decompensate and it went on from there like an avalanche”.
Her Honour noted, “However [Dr Wahr] could not comment upon the distinction between a reaction to something which happened in the workplace and a reaction to something which happened subsequently, namely the inability to obtain a doctor’s certificate clearing her to work”.
Dr Wahr had previously treated Z, in 1990, for a psychiatric condition, as a result of which she had made a WorkCover claim in which Dr Wahr provided evidence. At that time he diagnosed that she suffered a depressive reaction, which had ceased to be work-related by the time of his second examination of her in November 1990. At that time Dr Wahr reported that Z’s depressive reaction would continue until she was treated by a consultant psychiatrist with increased doses of antidepressants and supportive therapy. He noted in a subsequent report for that proceeding that Z was being treated with such medication by her then general practitioner.
As to the present situation, Dr Wahr diagnosed Z as having an agitated depressive reaction which had worsened over time. He said that agitated depressive reaction was a major psychiatric illness, characterised by anxiety and depression. He attributed Z’s mental state 15% to the knee injury and 85% to her employment. He said that, in his opinion, his diagnosis and that made by Dr Fail (a psychiatrist who gave evidence for the respondents) were “not all that different” in psychiatric terms.
The respondents’ medical evidence
There was a lack of unanimity amongst the expert witnesses as to whether Z was suffering any (and if so what) psychiatric illness and – if she were - as to when she might have contracted that illness and what might have been its cause(s). The respondents relied on the evidence of two psychiatrists, Dr Fail and Dr Shan.
Dr Fail expressed the opinion that Z had reacted in a rather catastrophic way to what, he said, was a very reasonable request made by her employer. Dr Fail diagnosed a chronic adjustment reaction, which had arisen as a consequence of, and secondary to, Z’s physical injury to the knee. Her reaction was rather catastrophic because work was an important part of her life and it appeared to her that she would be unable to work. (As earlier noted, Dr Wahr considered that Dr Fail’s diagnosis was not inconsistent with his own.)
Dr Shan, however, concluded that Z was not suffering from any psychiatric illness at all, but was engaged in “illness behaviour”, that is, she was consciously manipulating her presentation of symptoms. She suffered no incapacity for work due to an employment-related psychological injury or illness. Dr Shan concluded that no illness developed as at 30 and 31 May, although Z was very upset by what then occurred. He attributed many of her symptoms to a reaction caused by the inappropriate prescription of drugs. (Dr Fail agreed that Z’s medication was part of the problem, and that she had a benzodiazapene addiction, which was probably causing memory difficulties, depression and panic attacks.)
The claim for compensation
Z’s claim for compensation was rejected by the respondents on grounds which included that Z had not sustained injury within the meaning of the Act. Z commenced proceedings in the Magistrates’ Court on 26 November 2003, that proceeding subsequently being uplifted to the County Court. Z sought orders for weekly payments of compensation from 30 May 2002 to date, together with medical and like expenses. On 10 March 2005, the County Court rejected Z’s claim.
Z’s case was presented to the judge on alternative bases, pursuant to s.82(1). It was first contended that Z suffered injury in the course of her employment. Alternatively, it was contended that she suffered injury arising out of her employment. The first basis required, at least, that Z prove that she suffered her psychiatric injury while she was at her workplace[9]. On appeal, it was not contended that the judge ought to have so found. Instead, the appeal focused attention on whether Z suffered injury arising out of her employment.
[9]Kavanagh (supra) at 566.
The relevant provisions of the Act, as applicable at the time of the alleged injury, were as follows:
"82.Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.
...
(2A)Compensation is not payable in respect of an injury consisting of an illness or disorder of the mind caused by stress unless the stress did not arise wholly or predominantly from –
(a)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, redeploy, retrench or dismiss the worker; or
(b)a decision of the employer, on reasonable grounds, not to award or to provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with the employment, to the worker; or
(c)an expectation of the taking of such action or making of such a decision.[10]
[10]The respondents did not seek to rely on s.82(2A).
5(1B)In determining for the purposes of this Act whether a worker’s employment was a ‘significant contributing factor’ to an injury –
(a)the duration of the worker’s current employment; and
(b)the nature of the work performed; and
(c)the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e)the existence of any hereditary risks; and
(f)the life-style of the worker; and
(g)the activities of the worker outside the workplace –
must be taken into account.
5. Definitions
(1) In this Act unless inconsistent with the context or subject‑matter
'injury' means any physical or mental injury and without limiting the generality of the foregoing includes –
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.” (emphasis added)
The appeal
The appeal is brought pursuant to s.52 of the Act, which allows an appeal only on a question of law. There were eight grounds of appeal. (Counsel for Z sought leave, which was not opposed, to amend the notice of appeal by adding two further grounds of appeal. Although leave was granted to add those grounds it became unnecessary to determine the issues raised under them.)
The original eight grounds of appeal contended that the Judge:
“1....failed to apply the correct test when considering whether the Plaintiff’s psychiatric injury arose out of her employment.
2....wrongly at law considered whether a “reasonable conversation” with the Plaintiff’s supervisor created any “special exposure” leading to injury instead of deciding whether the conversation and the employer’s requirement of the Plaintiff was in fact a real effective or proximate cause of psychiatric injury.
3....wrongly at law considered the nature (or vulnerability) of the Plaintiff giving rise to her “catastrophic reaction” as being a reason for disregarding the effect of what was said to her and required of her by her employer.
4....applied a wrong test to disregard the contribution of employment to the Plaintiff’s psychiatric injury in stating that it “had no greater contribution” than her general practitioner’s failing or refusing to issue a medical certificate.
5....erred “in law” in considering that the Plaintiff’s reaction to being denied by her employer the opportunity to perform her employment duties was a function entirely of another injury and the Plaintiff’s perception of likely consequences and not contributed to by the denial of “opportunity”.
6....failed to consider properly or at all the evidence of the Plaintiff’s general practitioner and his treatment and erred in requiring “objective evidence” of a psychiatric condition in the year 2002.
7....failed to consider and apply the proper legal test as to whether an injury “arose out of “ employment.
8....considered wrongly a question of the existence of psychiatric injury which was not in issue between the parties and to which no specific attention was directed in the presentation of the case.”
Grounds of appeal 1 and 7 broadly complain that the judge failed to apply the proper legal test as to whether Z suffered injury “arising out of” her employment. Ground 2 raises a discrete complaint of specific error in her Honour’s interpretation of the test, and grounds 3, 4, and 5 highlight the issue of causation. Having regard to the conclusion we have reached as to all of these grounds, it will be unnecessary to deal with grounds of appeal 6 and 8 in any detail.
Although, as will emerge, we have concluded that the appeal should be allowed, this conclusion does not reflect any lack of care in her Honour’s approach to the case. On the contrary, her Honour’s judgment was thorough and careful, and drew on substantial research into the complex of case law in which workers’ compensation is now enmeshed. In deciding the matter as she did, her Honour was endeavouring faithfully to follow binding authority.
It is convenient to commence the analysis of the grounds of appeal with ground 2.
Ground 2: Whether a “special exposure” had to be proved
Her Honour made extensive reference to the judgments of Ashley, J., in Popovski v. Ericsson Australia Pty Ltd[11] and Hegedis v. Carlton & United Breweries Ltd and Anor.[12], to his Honour’s analysis of authority, including Upton v Great Central Railway. Co[13], Thom v Sinclair[14], and Brooker v. Thomas Borthwick & Sons (Australasia) Ltd[15]; and to the application of those cases by Mason, J. in Favelle Mort Ltd v. Murray[16].
[11](1998) VSC 61.
[12](2000) 4 V.R. 296.
[13][1924] A.C. 302
[14][1917] A.C. 127.
[15][1933] A.C. 669.
[16](1976) 133 C.L.R. 580.
Her Honour extracted from Popovski certain principles which she said governed Z’s claim, as follows:.
“20.6Ashley J [paragraph 33] then explored the origin of this test which is to be found in the judgement of Mason J in Favelle Mort v Murray (1976) 133 CLR 580 which in turn had relied upon Thom v Sinclair [1917] AC 127 (by Barwick CJ and Mason J) and Brooker v Thomas Borthwick (Australasia) Ltd [1933] AC 669 (by Mason J). From the latter two cases and the earlier case of Upton v Great Central Ry Co [1924] AC 302 Ashley J identified the following principles:
·…it was enough if injury by accident had been inflicted on the workman which would not have happened if his employment had not caused him to be at the place of the accident at the time of its happening…subject to the gloss that the injury must have arisen because of ‘some special circumstance’ attending the employment of the workman at the particular place at the particular time – it being enough that his duties required him to be there. [paragraph 41].
·The accident must be connected with the employment: must arise out of it…he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury.
·It is not satisfactory…to speak even of the proximate cause as determining the matter…’arising out of’ – is solved by considering the special exposure. The association therefore of the employment with the accident may be even closer than that of proximate cause.”
(Of the three propositions, the first is taken from the judgment of Ashley, J.[17], while the second and third are extracts from lengthy passages in the judgment of Lord Atkin in Brooker, where his Lordship spoke of exposure to injury by employment “in a special degree”[18] and “special exposure”[19]. The extended passages are set out in the judgment of Ashley, J. in Popovski).
[17]Popovski, at [41], citing Thom, at 134.
[18]Popovski, at [46], citing Brooker, at 676-7.
[19]Popovski, at [48], citing Brooker, at 678-9.
Seeking to apply those principles, her Honour held:
“For an injury to arise out of employment the worker must be able to sufficiently associate such injury to his employment which he can do if he can show that employment exposed him in a special degree to suffering such an injury; proximate cause may not determine the matter; one must consider the special exposure.”[20]
…
“The next basis upon which the Plaintiff relied for her claim is that a psychiatric injury arose out of her employment. For this purpose the Plaintiff must prove on the balance of probabilities that she has suffered a psychiatric injury having regard to the following kinds of criteria; namely, employment [was] the real, the effective, or the proximate cause; employment must have been at least a significant contributing factor; there must have been a sufficient association between such injury and her employment such that employment exposed her in a special degree to suffering such an injury.”[21]
[20]Judgment, at [22.2], emphasis in original omitted, new emphasis added.
[21]Judgment, at [31], emphasis in original omitted, new emphasis added.
Her Honour then reached the following conclusions:
“In my view on any analysis, the mere presence of the Plaintiff at her employment engaging in an otherwise reasonable conversation with her Supervisor, did not in the circumstances create any special exposure or render the employment as a real, effective or proximate cause of injury. In short, the anxiety or fear created in the mind of Mrs Popovski by reason of the warning label cannot be equated to anything said by the Supervisor to the Plaintiff”.[22]
[22]Judgment, at [31.3], second finding, at page 42.
We deal later with the contention that Z had to prove that employment was “the real, the effective or the proximate cause” of her injury. For the moment, we are concerned only with the judge’s conclusion that Z had to establish that her employment exposed her to injury “in a special degree”.
In our view, the requirement of “special exposure” has no application to a case such as the present. Its application is extremely limited, as appears from the decisions in Thom and Brooker, and their analysis by Ashley, J. in Popovski.
Thom and Brooker were unusual cases. In Thom a worker was injured on her employer’s premises when the collapse of the wall of an adjoining building caused the roof of the premises to fall on her. She was on the premises by virtue of her employment but, unlike the present case, nothing occurred in her employment which caused the fall, or the injury. The applicable legislation required that injury “by accident” both arise in the course of employment and arise out of the employment. The case raised the question of the extent of “causal connection”[23] or “causal relation”[24] that had to be established between the injury and the employment. It was argued for the employer that, for injury to have arisen out of the employment, the character of the employment must be shown to have actively contributed to its occurrence.
[23]Thom, at 133.
[24]Thom, at 134.
Viscount Haldane rejected this contention, and expressly rejected the contention that the worker had to prove that the nature of the employment exposed her to “a peculiar danger”.[25] Viscount Haldane held[26] that the worker was injured not merely because she was in that spot at that time but because her employment caused her to be under the roof which fell.
[25]ibid.
[26]At 134-5, 136.
His Lordship held:
“Now it is to be observed that it is the employment which is pointed to as to be the distinctive cause, and not any particular kind of physical occurrence. The condition is that the employment is to give rise to the circumstance of injury by accident. If, therefore, the statute when read as a whole excludes the necessity of looking for remoter causes, such as some failure in duty on the part of the employer as a condition of his liability, and treats him rather as in a position analogous to that of a mere insurer, the question becomes a simple one. Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment, and there is no necessity to go back in the search for causes to anything more remote than the immediate event, the fall of the roof, and there need be no other connection between what happened and the nature of the work in which the injured person was engaged”.[27]
[27]Thom, at 135 (emphasis added).
In Brooker, a building had collapsed during an earthquake, strewing debris on three workers who happened to be where they were because their employment placed them there at that moment. Applying Thom, Lord Atkin (for the Judicial Committee) observed that, if an injury to a workman was directly caused by some natural force such as lightning, which in itself had no connection with employment and might have injured persons who were not so employed, then he could not recover unless he could show that he had been especially exposed to that natural hazard by reason of his employment. His Lordship added:
“This he can do if he can show that the employment exposed him in a special degree to suffering such an injury.”[28]
Lord Atkin emphasised the special and limited circumstances in which such an approach would be necessary.
[28]At 677.
Two types of situation must be distinguished. On the one hand, there are events – such as a lightning strike - where the injury could have occurred to anyone, whether employed by the employer or not. In such a case, for the worker to establish that injury arose out of the employment, some further causal connection to employment must be identified. This is what Lord Atkin referred to as “exposure to a special degree” by virtue of the employment. On the other hand, there are cases where injury arises directly as an incident of the employment, in which case nothing further is required to be established.
In Popovski, Ashley, J. cited two extracts from the judgment in Brooker, in order to illustrate this distinction. The first of the passages reads as follows:
"The principle which emerges seems to be clear. The accident must be connected with the employment: must arise 'out of' it. If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connection with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. So that if the roof or walls fall upon him, or he slips upon the premises, there is no need to make further inquiry as to why the accident happened.” [29]
[29]Brooker, at 676-7 (emphasis added). The second passage cited was at 678-9.
Favelle Mort, too, was a special case. In that case, the employee contracted a disease after exposure to a virus whilst working in New York, having been located there by his employer. It was contended by the employer that there was no evidence that the employment caused or contributed to the contraction of the disease. Applying Thom and Brooker, Mason, J. held:
“In these cases a distinction has been drawn between injury occasioned by contact physically with some part of the place where the worker works, when no further causal connection with the employment need be shown, and injury occasioned by natural forces (with which the contraction of disease has been equated) in respect of which the worker cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury (Brooker’s Case, per Lord Atkin).”[30]
[30]Favelle Mort, at 597-8.
Mason, J. held[31] that the necessary exposure was demonstrated. Had it not been for his employment then, on the probabilities, the worker would not have contracted the disease, which was of so rare a variety that it was improbable that he would have contracted it had he remained in Australia.
[31]At 598-9.
In Popovski, the plaintiff had worked in a factory in which she was exposed to the inhalation of lead whilst soldering. She read a warning label on a packet of solder which advised of the danger of an abnormal pregnancy due to lead exposure. In response to employee concerns, the employer evaluated the risk and advised that there was no danger. The plaintiff became pregnant and gave birth to a child with birth defects, from which the child later died. The plaintiff was wrongly informed that she had a high lead level in her blood. She later returned to work but eventually ceased employment and was diagnosed as suffering grief reaction and depression. She claimed that her illness arose out of her employment.
Ashley, J. acknowledged the limited scope of the “special exposure” rule, and its inapplicability to a case where a direct causal relationship to employment was established. In considering what was required to establish sufficient connection between employment and injury, his Honour held (referring to Favelle Mort) -
“Properly understood, the description by Mason, J of the circumstances in which injury will arise out of an employment was a restatement of old principle, expressed in factually exceptional cases, about the necessary connection between employment and injury. That principle did not, in my opinion, compel a conclusion that in the present case injury did not arise out of the worker's employment. To the contrary, it appears to me that there was an extremely powerful argument that the injury which the learned magistrate found had been caused to the worker was intimately connected with aspects of the employment - the use of solder and the warning on the solder packet - and so arose out of the employment. Recognising that one cannot argue from the facts of one case to another, it might nonetheless be thought that here the connection between employment and injury was more direct than in either of Thom or Brooker - in each of which cases the claimants succeeded.”[32]
[32]At [50] (emphasis added).
In the present case, rather than concentrate on the direct connection between what was said by the supervisor and the reaction of the worker, her Honour looked for some aspect of the employment that might be said to have placed Z at special risk of injury. Her Honour held that what was said by the supervisor to Z could not be equated to anything that had occurred to create anxiety or fear in the mind of Mrs Popovski.
Her Honour distinguished the present case from Popovski, holding that in Popovski the duties of Z as a welder created the “special risk and exposure” which, when combined with the subsequent events, resulted in psychiatric injury:
“However, in this case there is nothing in the nature of the work undertaken by the Plaintiff or the circumstances of her employment which of themselves created any equivalent risk of the type to which Mrs Popovski became potentially subject. The Plaintiff in this case suffered an injury unrelated to her employment and in my view it is this circumstance, not anything within her employment and not anything said to her by anyone within her employment, which created the risk of her not being able to safely continue to perform her work duties.”[33]
[33]Judgment, at [31.3].
Properly understood, the “special risk” or “special exposure” requirement has no application at all to the general run of workers’ compensation cases. Its application is to be confined to “factually exceptional” circumstances, as illustrated by Lord Atkin’s example of a lightning strike. In particular, this requirement has no application to a case such as the present, where it is contended that the worker suffered injury which directly arose out of an incident in her employment.
Mr Noonan for the respondents properly conceded that her Honour had fallen into error in stating that, for Z’s injury to arise out of employment, “one must consider the special exposure”. Her Honour having applied the wrong test in reaching her decision, the appeal must be allowed.
It was not seriously contended by counsel for the respondents that this Court could, or should, proceed to decide the case applying the correct test. Issues of credibility arise which could not satisfactorily be resolved by this Court. The matter must be sent back for re-hearing.
On the rehearing, questions of interpretation of the legislation which are raised by other grounds of appeal may again arise. We think it appropriate, therefore, that we deal with those questions, the issues having been fully argued.
Grounds 1, 2, 4, 5 and 7: “Arising out of employment”/ Causation
It was submitted by counsel for Z that, in addition to applying an incorrect test (by requiring proof of special exposure to injury), her Honour also erred in the meaning she gave to the expression “arising out of employment” and, in particular, misunderstood the nature of the causative link to employment that had to be established by Z.
It was submitted that her Honour wrongly held that s.82(1) required that the employment had to be the - rather than a - real, effective or proximate cause of the injury and that it was insufficient if it was merely a significant contributing factor to Z suffering the injury. Her Honour then compounded the error, so it was said, by interpreting the phrase “a significant contributing factor” as meaning “of considerable amount or effect”, thereby requiring that Z prove causation to an even greater degree than would otherwise be required.
Her Honour held:
“The requirement in section 82(1) that an injury be caused arising out of employment remains more stringent than the requirement that employment be ‘a significant contributing factor’ to injury. Whilst there remains a distinction between these concepts, nonetheless, save in exceptional cases the causal requirement in each will cover the same ground;
The proper test to be applied to the concept of arising out of employment is that employment needed to be the real, the effective, or the proximate cause of the injury;”[34]
[34]Judgment, at [22.2], emphasis in original omitted, new emphasis added.
The Judge acknowledged that, were it sufficient for Z merely to establish that employment was “a significant contributing factor”, it would not have been necessary to prove that it was the sole or dominant contributing factor. Thus, her Honour held:
“The use of the words contributing factor recognises that an injury may be caused by more than one factor; the inclusion of the word significant where employment is implicated, requires an evaluation of the importance of such employment contribution; and there may be more than one significant contributing factor to an injury, including employment;
…
The word significant implies a contribution of greater dimension than that conjured up by other formulations (such as material or to a recognisable degree) and is most accurately described as a requirement that the contribution be of considerable amount or effect;”[35]
[35]Judgment, at [22.2] (emphasis in original).
In the concluding section of her Honour’s judgment, she said:
“The next basis upon which the Plaintiff relied for her claim is that a psychiatric injury arose out of her employment. For this purpose the Plaintiff must prove on the balance of probabilities that she has suffered a psychiatric injury having regard to the following kinds of criteria: namely, employment [was] the real, the effective, or the proximate cause; employment must have been at least a significant contributing factor; there must have been a sufficient association between such injury and her employment such that employment exposed her in a special degree to suffering such an injury”.[36]
[36]Judgment, at [31.1] (emphasis added).
There is some inconsistency in this passage. On the one hand, her Honour accepted that it would be sufficient if Z’s employment was merely one factor contributing to her injury. On the other hand, her Honour appears to have required that employment be, if not the sole factor, then at least the dominant factor. The latter view was reflected in her Honour’s conclusion that -
“... employment has no greater connection and made no greater contribution to any injury suffered by the Plaintiff than has Dr Gorgioski by failing or refusing to issue a medical clearance certificate.“[37]
[37]Judgment, at [31.3].
Employment as a cause
In the context of a quite different legislative framework, Mason, J. held in Favelle Mort:
" ... [T]he requirement suggested by the words 'to which the employment was a contributing factor' is not as stringent as that suggested by the concept 'arising out of' the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury."[38]
[38]Favelle Mort, at 598.
As her Honour noted[39], Ashley, J. in Popovski agreed with the magistrate that the “the proper test” as to whether injury arose out of employment was that it be the real, the effective or the proximate cause of the injury[40]. His Honour was not, however, called on to consider whether the use of the definite article by Mason, J. was intended to deny compensation in cases where, in addition to employment, one or more additional factors might also have been real, effective or proximate causes.
[39]Judgment, at [20.5].
[40]Popovski, at [33].
In our view, neither Mason, J. nor Ashley, J. meant to propound a general rule that employment had to be either the sole or the dominant factor in causing the injury. Neither Favelle Mort nor Popovski directly raised that issue. In any case, it would be quite wrong to treat the words of Mason, J. as if they were statutory words. In Hegedis,[41] Ashley, J. accepted that, save for special factual situations, proof that employment was a significant contributing factor would generally also establish that the injury arose out of employment. That is significant because, in Popovski, Ashley, J. accepted that injury may be caused by more than one “significant contributing factor”, and that employment may be a significant contributing factor even though other factors were more significant[42].
[41]Hegedis at 299 [15] and 305 [51].
[42]Popovski, at [56]-[57], [60], [77], [79].
Counsel for the respondents sought to support the interpretation that employment must be the – rather than a – cause of injury, by reference to a number of decisions. Counsel cited passages from the judgment of Lord Sumner in Lancashire and Yorkshire Railway Co. v Highley[43], and of Viscount Haldane in Thom v Sinclair[44],where the word “the” was used. In neither instance was the question in issue whether employment had to be the sole or dominant cause of injury. Certainly, no such statement was made in Thom or Brooker. In any event, as counsel conceded, it is not difficult to find an equal number of instances where judges have spoken of “a” cause, when discussing causation[45].
[43][1917] AC 352, at 372.
[44]At 135.
[45]Clover, Clayton & Co Ltd v Hughes [1910] AC 242, at 245, per Lord Loreburn, L.C.; see too Charles R. Davidson & Co. v M’Robb [1918] A.C. 304, at 317 per Viscount Haldane.
It would be surprising indeed if, in stark contrast to common law negligence claims[46], the worker in making a claim under a no-fault compensation scheme had to prove that employment was the sole or dominant cause of injury. Such a requirement would not be taken to have been imposed unless the statutory provision clearly so stated.
[46]cf. Medlin v State Government Insurance Commission (1995) 182 C.L.R. 1, at 7; March v Stramere (1990) 171 C.L.R. 506 at 523-4.
Accordingly, the “arising out” test will be satisfied if the employment is shown to have been a cause of the injury. It is not necessary to show that the employment was either the sole or the dominant cause of the injury.
“A significant contributing factor”
The question arises whether, in a case such as this, in order to show that injury arose out of the employment, it is sufficient to establish that employment was a significant contributing factor in the injury.
As noted already, Ashley, J. in Popovski,[47] relied on what was said by Mason, J. in Favelle for the conclusion that injury “arising out of” employment imposed a different and more stringent requirement of causation than that imposed by the requirement that employment be “a significant contributing factor”, although he said, in effect, that the potential for a different result, by virtue of that distinction, would be rare.
[47]Popovski, at [25], [36], [51]-[54].
In Popovski,[48] the instances where proof that employment was a significant contributing factor might not be sufficient were identified by Ashley J as being those “factually exceptional cases” with which Favelle Mort, Thom and Brooker were concerned. His Honour postulated a worker being struck by lightning at his workplace.[49] (As we have seen, the same example was used by Viscount Haldane in Thom[50] and by Lord Atkin in Brooker[51].) Ashley, J. held that, under “old authorities”, that might not constitute injury arising out of employment, if the worker was not in the particular place where the lightning bolt hit by virtue of performing his work. His employment nonetheless would be a significant contributing factor in the worker being at that spot. In our view, what Mason, J. said in Favelle Mort ought be confined to the limited cases – of which Popovski was perhaps one – to which his Honour intended it to apply.
[48]Popovski, at [46]-[50] and [54]; see, too, the passage cited in para.[58] above.
[49]Popovski, at [54].
[50]Thom, at 134.
[51]Brooker, at 675.
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.” In particular, we find it difficult to imagine a case where psychological injury to a worker resulting from a traumatic confrontation with a supervisor would not constitute both injury “arising out of employment” under s.82(1) and injury “to which employment was a significant contributing factor.” If there is a distinction between the two concepts, it is more theoretical than real in such circumstances. Thus, in the present case it would be sufficient to show that the psychiatric illness was a reaction to what was said by the supervisor. It would not matter that other factors also contributed to Z’s claimed psychiatric illness, such as the refusal of the doctor to provide a certificate. The relevance of those other factors did not preclude the conclusion that the words and actions of the supervisor were causative of injury, such that the injury “arose out of” the employment.
The phrase “significant contributing factor” should not be treated as a proxy or substitute for the statutory “arising out of” test. After all, the “significant contributing factor” test has been removed from s.82(1) altogether, and its function in connection with that subsection should now be consigned to legislative history.[52] Otherwise, attention will continue to be focused – unnecessarily and inappropriately – on what is meant by the word “significant”. Thus it was in the present case that her Honour adopted the view of Ashley J in Popovski, that “significant” meant “of considerable amount or effect”. For the reasons we have given, that is one question of interpretation which no longer arises, and we accordingly express no view on it.
[52]The phrase “significant contributing factor” is still used in the definition of certain categories of injury: see s.82(2B) and (2C).
There is a single test to be applied under s.82(1) – the “arising out of” test. The test raises a question of causation. In a case such as the present, the test is satisfied if it can be shown, on the balance of probabilities, that an injury to the worker was caused by an act or omission of the employer (including any servant or agent of the employer). This causation question is to be approached, like any other causation question, as a matter of common sense.
For these reasons, grounds 1, 2, 4, 5 and 7 should also be upheld.
Ground 3
As noted earlier, this ground concerned the significance attributed by her Honour to the plaintiff’s own psychological fragility. The relevant section of the reasons for judgment is in the following terms:
“... [T]here is a paucity of evidence as to the precise nature of the “employment event” or connection with employment (beyond mere presence) and the plaintiff’s subsequent injury which is said to arise out of the employment. In particular, there is nothing in the psychiatric profile identified by either Dr Wahr or Dr Fail which characterises the plaintiff’s employment per se or anything done or said within her employment as the cause or the precipitating factor to the plaintiff’s apparent ‘catastrophic reaction’. Rather it is the very nature of the plaintiff herself which has apparently given rise to this reaction. ... Her emotional upset and subsequent reaction [to what was said by her supervisor] was a function entirely of her knee injury and her perception as to likely consequences which would follow.” (emphasis added)
Her Honour thus concluded that the cause of the psychiatric injury was not what was said but Z’s psychological vulnerability, which prompted the “catastrophic” reaction.
With respect, her Honour erred in treating Z’s state of mind as having any causal significance of its own. Under this statutory scheme, as at common law, the employer takes the employee as it finds her[53] – that is, with whatever strength and weaknesses she may have. The question of causation relates to the particular interaction between the employer and the worker in question. The question must always be: what caused the injury to this worker? Was it something done, or omitted to be done, which caused this worker to react in the way she did?
[53]Spence v Gomez [2006] VSCA 48 at [33]-[45] per Maxwell, P.
Ground 3 must also be upheld.
Grounds 6 and 8
These grounds raised complaints about her Honour’s approach to the evidence concerning the suggested psychiatric illness suffered by Z. In several passages of her judgment her Honour made what seem to be findings that Z had not suffered a psychiatric injury on 30 or 31 May 2002. Furthermore, her Honour also appears to have accepted Dr Shan’s evidence that Z had not suffered a psychiatric illness at any time after those dates. Counsel for Z submitted that it was not in dispute that Z had suffered subsequent psychiatric illness at some point subsequent to these events. What was in issue was the role of the employment, if any.
Her Honour appears to have acknowledged that state of agreement between the parties, stating that she had “assumed” that Z had suffered a psychiatric injury “at some stage”. Having said that, however, the judge then discussed what she considered to be “serious differences” in the psychiatric opinions on that question. In so doing, she added: “I note that Counsel for the defendants chose not to rely upon an absence of psychiatric injury”[54], an observation which suggests that Z’s complaints under these grounds may well be arguable.
[54]Judgment, at [32.1].
Given the conclusion we have already reached that the appeal should succeed, and that the case referred back to the County Court for re-hearing by another judge, it is unnecessary to deal with these grounds. Whether such questions will arise on the re-trial is a matter that ought be left for consideration by the judge on the re-hearing.
Conclusion
The appeal should be allowed, the judgment below set aside and the matter remitted for re-hearing before another judge, upon the principles set out in the decision of this Court.
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