Alcoa of Australia Ltd v McKenna [2003] VSCA 182

Alcoa of Australia Ltd v McKenna [2003] VSCA 182 - VSCA 2003 case summary — Zoe

[26]

As Phillips, J.A. said in Hanrahan v. Davis[11], where a prospective plaintiff seeks leave under sub.s (4)(b) of the Act to bring proceedings he or she is then not at the stage at which damages may be "recovered" as is contemplated by sub-s.(2) so that the prohibition implicit in the latter provision does not, without more, then fall for consideration. Thus, in this case, it was not incumbent on the respondent to demonstrate, as part of his primary case before his Honour, that the injury fell within s.135A(2); it was a matter that he will have to establish at trial in the event that leave is obtained. But the appellant contended before his Honour that, because the respondent's injury did not fall within s.135A(2), he was not entitled to recover damages in respect of it and, therefore, the leave sought should be refused even if the court were to conclude that the injury was a serious injury. This raises the question whether, on such an application, a court has a discretion not to give leave even though it is satisfied that the injury is a serious injury. In my view a plain reading of sub-s.(4)(b) clearly points to the conclusion that such a discretion is reposed in the court. The provision effectively says that proceedings for damages in respect of a work related injury may not be brought without the court's leave. It does not say that, once the court is satisfied that the injury is "serious", the prohibition against bringing proceedings for damages is lifted, or that in those circumstances the court must grant leave. Consequently, it seems to me, sub-s.(4)(b) gives the court a discretion to decide whether to withhold leave even where it considers the serious injury issue has been resolved in favour of the appellant. Had it been the intention of Parliament that the court should not have such a discretion, the provision would have effectively said that proceedings for damages could not be brought in respect of a work related injury unless "a court .... is satisfied that the injury is a serious injury". And it is in the exercise of that discretion that the court may refuse to grant leave where it is satisfied that the injury does not fall within s.135A(2) even if it is persuaded that it is a serious injury.

[27]

Where a respondent to a sub-s.(4)(b) application seeks to resist the application on the basis that the injury does not fall within s.135A(2), the evidentiary burden of making out that case falls on it.[12] The real question is, however, to what standard must the respondent prove its case on that issue - is it sufficient if it establishes it on the balance of probabilities or must it go further and effectively satisfy the court, much like a defendant seeking summary judgment, that the applicant's prospects of establishing that the injury falls within s.135A(2) is "absolutely hopeless"[13] or "bound to fail"[14]. I consider that the better view is that the latter situation applies. It seems to me that a respondent who seeks to have the court deny an applicant leave to bring proceedings for damages in respect of a serious injury on the above basis is in a similar position to that of a defendant against whom an action for damages has been brought by the worker and who seeks summary judgment on the ground that the plaintiff is not entitled to recover damages because the injury does not fall within s.135A(2) or because, as was the case in Rizza, that proceeding comes within the ambit of s.135B(2) of the Act. In each situation the prospective or actual action is sought to be brought to an end otherwise than on its merits and it is well established that, ordinarily, before the court allows that to take place, it must be satisfied that the position of the prospective or actual plaintiff on such issues is hopeless. Thus, where the respondent to a sub-s.(4)(b) application claims that the injury does not fall within s.135A(2) and, therefore, the application should fail on that ground, the court should ordinarily grant the application if it is satisfied that the injury is "serious" and leave the resolution of the s.135A(2) question for trial, unless it is persuaded that the applicant is bound to fail on that issue. If it were otherwise, that is to say, if an applicant had to establish, on the balance of probabilities, as part of his or her case for leave to bring proceedings, that the injury was not only a serious injury but also that it fell within s.135A(2), or if it was sufficient for a respondent to such an application to establish only on the balance of probabilities that the injury did not fall within that provision, the character of a sub-s.(4)(b) proceeding would materially change from its limited nature as was recognised by Brooking, J. in Petkovski v. Galletti.[15]

[28]

But on whatever basis this issue had to be determined by the judge in this case I consider that it was well open to him to conclude, as he did, that the appellant failed to persuade him that the injury did not fall within s.135A(2). I have already mentioned that the appellant's case below was that the injury did not fall into either limb of s.135A(2) and consequently, it bore the evidentiary burden of making out that case. In my view, his Honour's reasons, when read in the context of the matters that were left for his Honour to resolve and the parties' submissions on that issue, make it plain that he was of the view that the appellant had failed to discharge that onus. It is true that his Honour did not say that in terms, but that this was his conclusion is obvious given that he granted the respondent leave to bring the proposed proceedings, something he was unlikely to have done if he had been persuaded by the appellant's case. It could not be sensibly said that this very experienced judge simply overlooked the appellant's claim that the injury did not fall into s.135A(2), particularly given that the issue was thoroughly analysed by experienced, senior counsel during their final submissions. Moreover, the judge's reasons, particularly his acceptance of the evidence that the injury progressively worsened as well as its debilitating effect on the respondent at the relevant time, show that his Honour appreciated that he had to be satisfied as to when the injury arose and when its impairment was manifested for the purposes of s.135A(2). Given his Honour's findings as to the injury, the circumstances in which it arose and its ramifications for the respondent, it was clearly open to him to conclude not only that he was unpersuaded by the appellant's case on this issue but that, on the balance of probabilities, the injury fell within the second limb of s.135A(2), namely, that it arose before 1992 but did not manifest itself as a serious injury incapacity[16] until approximately mid-1995. That would be sufficient to dispose of this aspect of the appeal, but for completeness, I should say that, on the evidence, it was similarly open to his Honour to find, in the alternative, that the injury fell within paragraph (a) of s.135A(2) because, although the respondent contracted asthma before 1 December 1992, it was only after that date that his condition became aggravated, to the extent of impeding his capacity to work and, ultimately, his permanent incapacitation.

[40]

It was also argued for the appellant before us (but, it seems, not below) that it was the respondent, and not the maker of the film, who was the "maker of the statement" for the purposes of s.55(1)(a) of the Evidence Act 1958 and that, therefore, the film could have been tendered under that section without the need to call the maker of the film provided that the respondent accepted that it was he who was depicted in the film. But that argument, even if correct, goes only to the admissibility of the video film and does not detract from the discretion which the judge had to rule as he did in the interests of justice. In any event, even if the video film was admissible under s.55(1)(a) of the Evidence Act as was contended for by Mr. Rose, the judge had a discretion to exclude it under s.55(9) in the interests of justice. In the circumstances, therefore, it is, strictly, not necessary to decide whether the respondent was the maker of the statement as was contended for by Mr. Rose. For the purposes of completeness, however, I should say that, although a film is a "document" for the purposes of the Evidence Act[24], I consider that the "maker of the statement" for the purposes of s.55(1)(a) of the Evidence Act was the person who shot the footage and not the respondent. So far as is relevant, the sub-section provides that, in a civil proceeding, where direct oral evidence of a fact would be admissible, a statement contained in a document which tends to establish that fact will be admissible provided that the maker of the statement had at the time of making the statement personal knowledge of the matters dealt with by it, and is called as a witness in the proceeding. The Act does not define "maker of the statement" but I consider that, in the context of this case, the video film can be regarded as being a substitute for the evidence that its maker could have given as to the physical work the respondent actually did on the day in question. In the circumstances, I consider that it was the person who made the film who was the "maker of the statement" for the purposes of this provision and who had to be called if the appellant was to avail itself of the benefit of the section. Such a construction of the provision seems to be consistent with what is said on this issue in Halsbury's Laws of Australia[25], namely, that the "maker of the statement" is "the person who records the statement from information supplied by another and not that other". A like approach was adopted by Zeeman, J. in R. v. Maloney[26], where his Honour accepted that, in the context of the case before him, it was the maker of the video film, and not the subject of it, who was the "maker of the statement" for the purpose of a like statutory provision. In that case the Crown sought to tender a video-tape recording of an interview with a Crown witness under a Tasmanian statute similar to s.55(1) of the Evidence Act except that the provision in question applied to criminal proceedings and dealt with a "representation made in a document" rather than with a "statement made in a document". The video of a police interview with a Crown witness was rendered inadmissible, however, because the person operating the video-recorder did not have personal knowledge of the matters that were discussed and, in the circumstances, he could not give direct oral evidence as to what passed between the parties because it would plainly have been hearsay. His Honour

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Judgment (138 paragraphs)

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Cases Cited (4)