//
[2007] VSC 356
General information, not legal advice.
Supreme Court of Victoria
2007-09-21
SMITH J
Original judgment source is linked above.
WORKCOVER- Termination of weekly payments by Authority - Appeal from Magistrates' Court decision setting termination aside - "Suitable employment" - Onus of proof - Evidentiary onus.
1 The Public Transport Corporation, the appellant, by Notice of Appeal dated 2 October 2006 challenges the order made on 31 August 2006 in proceedings[1] in the Magistrates' Court setting aside the decision of the Victorian WorkCover Authority (Authority) terminating weekly payments that had been received for a number of years by the respondent, Mervyn Pitts. Notice of that decision was given by letter dated 29 March 2005 under and of the (the Act) and the termination commenced on 2 May 2005.
2 Mervyn Pitts had been employed by the appellant doing heavy manual work of an unskilled nature for about 27 years from 1965 until 1992 - when he suffered the original compensable injury. Prior to that he had a history of unskilled and manual work. He had either a congenital or long standing thoracic and lumbar scoliosis which made him vulnerable to the consequences of heavy manual work. The learned magistrate found that he sustained a compensable injury in the form of the aggravation and acceleration of degenerative disease affecting those regions of the spine and that this aggravation and acceleration had permanent irreversible consequences. His Honour commented that the extent of the degeneration was significant and was evidenced by multiple level disc pathology shown on the CT scan on 3 September 1993 and other findings evidenced by x-ray on 13 January 2003. His Honour was also satisfied that Mr Pitts had not coped well psychologically and had suffered an adjustment disorder, poor self esteem, anxiety and diminished confidence resulting from or contributed to by the spinal injury. He noted that Mr Pitts had been receiving medication for this over the years. Importantly he noted that the condition diminished his capacity for work.
3 On the basis of his demeanour and other evidence the learned magistrate expressed the view that Mr Pitts was a straightforward, direct and reliable person. He also accepted the evidence of the long time general practitioner of Mr Pitts (since 1993), Dr Roberts, that he was very genuine, a man of very modest academic achievement, a simple and sincere man and not prone to exaggeration. His Honour stated that no other medical witness departed from that assessment.
4 Turning to his history subsequent to the compensable injury in 1992, his Honour noted that Mr Pitts was diagnosed and certified as incapacitated for his railway track repair work and from then until 1999 undertook work as a flagman. In 1999 he was made redundant from that work. His Honour also noted that while there is an issue about his current capacity for work there is no doubt held by any witnesses or party to the case that he remains unfit for the track repair and maintenance duties that he undertook until 1992.
5 As to his education and skills, his Honour found that Mr Pitts had had minimal formal education. He also concluded on the evidence that he had limited reading skills and that his writing and written expression was limited such that he had no capacity for clerical work or for work requiring the management of documentation. He accepted Dr Roberts' assessment that the plaintiff had the literacy skills of a primary school student. He did not accept that the plaintiff had a particular visual impairment (something that had been raised) but having regard to his literacy levels, the fact that he had done no clerical work in the past 41 years, and his inability to complete a retraining course regarding security work because of his limited literary capacity and psychological condition, he confirmed that clerical work, in his view, was not suitable employment for the plaintiff when considering the definition of "suitable employment" in s.5 of the Act.
6 Turning to current symptoms, his Honour held that the primary symptoms were low back pain and pain and diminished nerve sensation in the right leg extending to the foot, including a tendency to coldness and numbness of the right foot. He accepted that Mr Pitts had never been free of these symptoms since 1992. He accepted that he had been and remained unable to stand, walk or sit for long, that lifting caused flare up of back pain and walking was restricted to about one kilometre at a time and standing to about an hour. After referring to his admission as to an ability to drive for 20 minutes from his home in Newtown to another part of Geelong, he stated that he accepted that his driving ability was limited. He also found that Mr Pitts was less able to cope with exposure to cold, particularly because of his right leg and foot nerve symptoms. He said that Mr Pitts walks with a limp of slight proportions, though not exaggerated. He said that he bends with pain and not fully. He held that the plaintiff was likely to continue indefinitely as he then was and as he had been since May 2005.
7 His Honour then referred to some four minutes of film footage taken on the day before the hearing commenced but concluded that nothing in it contradicted significantly or cast doubts on the accuracy of the plaintiff's own description of his abilities and restrictions and he accepted Mr Pitts' descriptions as accurate.
8 Following the loss of his employment as a flagman in 1999, Mr Pitts became entitled to a weekly payment under the Accident Compensation Act 1985. This commenced in late 1999 or early 2000 and marked the commencement of what, for the purpose of the Accident Compensation Act 1985 is described as the "second entitlement period".[3] The payments that he received continued for some 231 weeks before they were terminated by the notice referred to above. The second entitlement period had long since expired, it being a period of 104 weeks during which weekly payments were received. While counsel for Mr Pitts sought to argue that there was an evidentiary significance in the fact that the Authority had allowed this to continue, it appears to be common ground that it was open to the Authority to terminate the payments at that time provided the provisions of s.93CC of the Act were satisfied - and in particular s.93CC(1) which provides:
"(1) Subject to section 93CD, a worker's entitlement to weekly payments under this Part ceases after the expiry of the second entitlement period within the meaning of section 93CB(1) unless the worker is assessed by the Authority or self-insurer as -
(b) likely to continue indefinitely to have no current work capacity."
The term "current work capacity" is defined in section 5 of the Act as follows:
"In relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment."
The term "suitable employment" is also defined in that section as follows:
"In relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following -
(a) the nature of the worker's incapacity and pre-injury employment;
(b) the worker's age, education, skills and work experience;
(d) the details given in medical information including the medical certificate supplied by the worker;
(f) if any occupational rehabilitation services are being provided to or for the worker."
9 The notice that was given was quite detailed and set out the basis of termination and the reasons for the conclusions that had been reached. In particular it stated that he had a "current work capacity" or, alternatively, that if he did have no work capacity, it was not likely to continue indefinitely - thus relying upon the two matters stated in s.93CC(1). It also relied upon other matters but for the present purposes it is not necessary to refer to them because they were not relied upon before the learned magistrate. It should be noted, however, that in the reasons given to support the conclusions that had been reached and to support the giving of the notice, the only employment options that were identified, on the basis of the evidence of Angela Braid, employment placement consultant, after a vocational assessment, were:
At the hearing, however, the possible areas of employment canvassed by counsel for the appellant were:
10 In the notice of appeal, the appellant identified two questions of law as follows:
The second question was not pressed. In support of the question of law that was ultimately pursued on the appeal, the ground stated was as follows:
11 His Honour stated his ultimate conclusion as follows:
"In conclusion, having found the four categories of work asserted by the defendant to have not been suitable employment, indeed are not suitable within the meaning of that term in s.5, I conclude on all the evidence that the plaintiff has no current work capacity and will continue indefinitely to have none."
12 In terms, that statement recognises that the legal onus of proof was on Mr Pitts to satisfy the criteria in Section 93CC(1). The argument advanced by the appellant is based on the detailed reasons that led to that conclusion which, it argued, demonstrated that, in fact, his Honour placed the legal onus on the respondent.
The analysis of the issues by the learned Magistrate
13 The learned magistrate considered and applied the relevant substantive legal principles. He identified in s.5 of the Accident Compensation Act the definition of "current work capacity" as being, so far as relevant, a "present inability arising from an injury such that the worker is not able to return to work in suitable employment". He then noted the definition of "suitable employment" in s.5. His Honour made the point that the definition of suitable employment was considered in Barwon Spinners Pty Ltd v Podolak (2005) VSCA 33 at [25] and the State of Victoria v Rattray (2006) VSCA 145. He cited in particular the passage of Bongiorno AJA in paragraph 16 of the latter case where his Honour held
"that the Barwon Spinner's case meant that capacity to earn meant the physical capacity to earn income in suitable employment, whether or not a job was available."
After quoting Bongiorno AJA he stated that the words "suitable employment" meant currently suited for a particular employment which exists in fact, whether or not a vacancy exists. He noted that that was of particular utility in determining the issues of the case.
14 His Honour then turned to consideration of what he described as "the assertion by the defendant that the plaintiff was capable of working in four different jobs". It was in the course of this analysis that he used language which is relied upon by the appellant to support its argument in this proceeding that he in fact proceeded on the basis that it was the appellant who bore the legal onus of proving under s.93CC(1) that Mr Pitts was not entitled to ongoing payments of compensation.
15 Counsel for Mr Pitts accepted that the legal onus of proof was on Mr Pitts to prove that he had no current work capacity as defined. Counsel submitted that the passages relied upon by the appellant reflected no more than the fact that the situation was one where there was an evidentiary onus upon the appellant to put sufficient evidence before the learned magistrate to raise the issues that were sought to be raised.
16 I turn to the four categories of employment sought to be relied upon by the appellant and the learned magistrate's analysis of them. In considering that analysis it must be borne in mind that a fair reading of the reasons prior to that point is that the learned magistrate had come to the conclusion that on the evidence referred to, Mr Pitts was extremely disabled by the injuries he had suffered, both physically and psychologically, and was also severely limited in his reading, written expression and capacity to be retrained. His Honour had concluded, among other things, that clerical work was not suitable employment within the meaning of the Act. His findings were such that if Mr Pitts had any possible working capacity it would be extremely limited and absent evidence identifying kinds of employment that he could cope with having regard to his physical and psychological disabilities and his limited capacities, he should be held to lack the relevant capacity. It was, in my view, from that perspective that his Honour subsequently went on to consider in detail the particular matters that had been raised by the appellant as possible areas where he had current work capacity.
17 The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose. Thus there was an evidentiary onus on the defendant on that issue.
18 The situation is analogous with that dealt with in the case of Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. That case concerned the question of where the legal onus of proof lay in an injury case where the plaintiff has established a prima facie case of incapacitation as the result of injuries inflicted by the defendant's negligence and the defendant sought to raise the question of whether the incapacity was wholly or partially the result of some pre-existing condition. There had been statements in an earlier High Court case, Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, which appeared to indicate that the legal burden of proof passed to the defendant in that situation to prove that it was the pre-existing condition that wholly or partly caused the incapacity. Barwick CJ, Kitto and Taylor JJ[4] quoted the following passage from the 10th edition of Phipson on Evidence:[5]
"As applied to judicial proceedings [a burden or onus of proof] has two distinct and frequently confused meanings:
(1) The burden of proof as a matter of law and pleading, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond reasonable doubt; and
(2) The burden of proof in the sense of introducing evidence."
Their Honours went on to state that it was the meaning of the expression in the secondary sense that had been addressed in the case of Watts v Rake. They went on to say:
"We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to dispose of the plaintiff's prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary, it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of the fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means establishes with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis."[6]
19 The learned magistrate commenced his analysis by describing from the evidence the nature of the job of a flagman undertaken between 1992 and 1999 in country and metropolitan Melbourne by Mr Pitts. He said that Mr Pitts' function was to wait beside a railway track to warn train drivers of the existence of a track repair gang ahead of the train and to do so either by using a caution flag in daytime or track detonators and a torch at night. He accepted the evidence of Mr Pitts that it involved no physical work but sometimes involved walking a couple of hundred metres up to two kilometres. On some occasions he was driven to his work location. The job required him to sit at his post either on a folding chair if one could be transported to the location or on the ground. He was able to stand or walk around at his discretion provided he remained at his post. He referred to Mr Pitts' statement that it was the lowest work you could get and that he did not consider it to be a job but just an occupation which provided a means of passing the time and was generally unproductive. His Honour went on to note that his work as a flagman ceased in 1999 when the appellant declared Mr Pitts redundant. The work was undertaken thereafter by contractors. His Honour then stated:
"I find the position held by the plaintiff until 1999 to have been one which amounts to artificial rather than meaningful employment."
He noted that Dr Roberts had expressed the opinion that the plaintiff was unfit for all work using the expression "meaningful employment". He also referred to the fact that Dr Roberts considered that the guilt Mr Pitts had experienced in respect of the low level of his contribution to the work team contributed to his psychological ill health. His Honour then commented that the appellant no longer employed flagmen and track repairers and that their work was done by sub-contractors. He then said:
"I have no knowledge of the details or duties required as a flagman at present and ... the defendant adduced no evidence of that before me."
He noted that his limited observation of workers who do that "type of work" (that is presumably flagmen and track repairers) are that they are
"never seated, are always standing around the same place and may also be expected to contribute to some overall team output".
"But, my limited observations were not assisted by evidence from the defendant and in the circumstances where the defendant's case here is that the plaintiff is capable of working in a protected or artificial work environment, I have some doubt about whether such a job exists. In fact in the absence of evidence from or on behalf of the defendant, I am unable to find that restricted flagman's work is suitable employment when I apply the criteria spelt out by Bongiorno J in the Rattray case".
20 Counsel for the appellant submits that in that passage, in particular, the learned magistrate had reversed the onus of proof and placed it upon the appellant. In my view, however, a fair reading of the passage, in light particularly of the findings and of what had gone before in the reasons, is that the learned magistrate was indicating that the defendant had failed to place before him the evidence needed to discharge the evidentiary onus on the issue as to whether some form of restricted flagman's work could be suitable employment. That was in fact the appropriate analysis of the situation because there was no evidence before him about the duties and work involved in the employment of those who then discharged the duties formerly performed by Mr Pitts as a flagman.
21 It is true that the propositions could have been better expressed by reference to evidentiary burden but it must be remembered that it has not been uncommon for courts, including even the High Court[7], to use inappropriate language in discussing the evidentiary burden of proof. It was commented in Stewart v Dillingham Constructions Pty Ltd[8]:
"The failure clearly to express the distinction and to describe with precision which onus is, in a particular case, being adverted to is of commonplace occurrence".
It remains a difficult distinction and one often not made.
22 I note also that the learned magistrate was of the view that the work that had been done up until 1999 did not constitute meaningful employment and appeared to take the view that that meant that Mr Pitts had demonstrated that it would not have qualified as "employment". The appellant challenged this conclusion, arguing it was not open on the evidence. In my view, the conclusion was open on the evidence and on proper application of the term "employment". That conclusion, however, was not critical to his decision on this point; for the problem remained for the appellant that it had failed to discharge the evidentiary onus.
23 The learned magistrate referred to the exploration of this option in the cross-examination, in particular, of two doctors and the plaintiff himself. He also referred to the fact that there was tendered, as Exhibit 'B', the school crossing supervisor position description. His Honour went on to identify various aspects of the job description which, in his view, Mr Pitts could not satisfy. In particular he referred to the need to have the ability to respond to emergency situations, basic writing skills for reporting purposes and a capacity to identify regulation breaches for prosecution purposes. He commented that these were outside the suitability of the plaintiff. He said that he also considered the plaintiff to be incapable of lifting or carrying a small, much less a medium sized, child, incapable of running or acting with haste in response to an emergency and to be incapable of clerical aspects contained in the job description. He concluded:
"I do not find this, particularly as described in Exhibit 'B', to be suitable employment".
Counsel for the appellant submitted that this again indicated that the learned magistrate was reversing the onus of proof - that it was for Mr Pitts to establish that it was not suitable employment and it was not for the appellant to prove that it was. But a fair reading of the learned magistrate's reasons leads to the conclusion that, however the question might have been formulated, the answer would have been the same and, if there was an error, it was to place "not" in the wrong place. What he was saying was that having regard to the job description, Mr Pitts could not perform it. Therefore, accepting the onus to be on him to prove that it was not suitable employment, he had discharged that onus. Alternatively, the language used, was consistent in any event with the learned magistrate taking the view that the appellant had not discharged the evidentiary onus to place before him material that would require consideration of this alternative as possible suitable employment.
(c) Delivering advertising material, newspapers and other pick up and delivery work
24 Here the learned magistrate referred to the evidence that Mr Pitts had, for some thirteen weeks between April and July of 2006, attended a workplace on referral from Centrelink as part of the programme to assist disabled people to obtain jobs. He noted that the attendance was for two days a week for four hours each day for which he was paid $14 per hour. His Honour described the work as involving some attendance at a shop, some delivery of pamphlets and, in company with another person, described by the plaintiff as a jockey, driving around in a utility to pick up bags of clothing and household items donated by householders. His Honour referred to the fact that the plaintiff had given evidence about
He accepted that description of the programme. He also found that Mr Pitts had continued this work on a volunteer basis from July of 2006, but for less hours than previously. His Honour then referred to and accepted the testimony of Dr Mutton about there being a vast difference between voluntary and paid employment with different demands as to time and reliability. He dismissed the concession made by Dr Mutton in cross-examination that the plaintiff was capable of 20 hours per week of this sort of work because it was based upon the presumption that Mr Pitts had in fact done that, whereas the maximum he had done was eight. He took the view that Dr Mutton's opinion that the plaintiff was unfit for all work stood generally uncontradicted by his own testimony in the Court. He then made the following finding:
"Having regard to all the evidence I conclude the plaintiff has been capable of participating for up to eight hours a week in a protected work environment, created as part of an initiative to provide a temporary opportunity for disabled or marginally capable persons to join a work environment."
His Honour then referred to evidence given by the plaintiff in which he had agreed that independent newspapers are distributed weekly and sometimes more often across the Geelong region and that he could do such distribution work for a short time - for an hour or so, and that he could, after a break, go back and do another hour. He referred to the evidence of Dr Roberts that in his opinion Mr Pitts could do this work depending on the kind of distances and time commitments involved, provided he had flexibility of time and insignificant distance to cover. He referred to Dr Mutton's evidence that Mr Pitts' capacity for this work would depend on matters such as geography, whether the ground was hilly or flat and the amount of walking involved. He noted that Dr Schutz and Mr Jones (called by the appellant) were both of the opinion that Mr Pitts would be fit for work of this nature with less conditions. His Honour then noted:
"The defendant's inherent presumption in testing the opinion as to capacity for delivery work of this nature was that the pace of work, the times of start and finish, particular delivery tasks and relevant breaks and other circumstances, could be varied according to the plaintiff's needs but there was no evidence adduced that any job which permits the plaintiff to be accommodated in this way exists at all".
His Honour commented, that it was presumed that this sort of delivery work could be done to suit the employee's needs but that was
"neither consistent with the regularity of delivery of my weekly independent newspaper nor supported by evidence from the defendant or from either party for that matter".
"Although the evidence supports the finding the plaintiff has capacity for some level of activity, the evidence fails to establish if the plaintiff is suited for a particular employed position, defined by position description or any description of what hours, tasks, frequency or reliability are expected."
"In the circumstances where the type of employment the defendant asserts the plaintiff is suited to is of such a special type of unusual kind, there is no evidence before [me] that employment of this type exists outside of the temporary Centrelink variety, such that I am unable to find that delivery and pick up work or newspaper or advertising delivery work is suitable employment when the criteria or the guidelines spelt out by Bongiorno J in the Rattray case are applied here."
Counsel for the appellant submitted that the learned magistrate was again placing the onus upon the appellant to prove that such work was suitable and available. In my view, however, what the learned magistrate was saying was that the appellant had not adduced any evidence to suggest that employment of the type asserted to actually existed out in the market place. As a result, the appellant had not discharged the evidentiary onus to raise that option for consideration. Thus the issue did not arise for Mr Pitts to prove, on the balance of probabilities, that he lacked the capacity for such employment.
25 The penultimate paragraph of the learned magistrate's reasons, noted above, confirms that his Honour was aware that the legal onus of proof rested on Mr Pitts to prove the lack of suitable employment. To repeat that paragraph, his Honour stated
"In conclusion, having found the four categories of work asserted by the defendant to have not been suitable employment, indeed are not suitable within the meaning of that term in section 5, I conclude on all the evidence that the plaintiff has no current work capacity and will continue indefinitely to have none."
As can often happen, the preceding discussion had not expressly identified the fact that it concerned the evidentiary onus of proof not the legal burden of proof.
26 The learned magistrate plainly took the view that such evidence as was adduced as to the other alternatives had been insufficient, if accepted, to raise for consideration, and disproof by the plaintiff that the suggested alternative employment existed, and, if so, was it suitable employment for Mr Pitts. In my view that was all that the learned magistrate was addressing. He was not placing the legal onus of proof on the appellant on the issue of available suitable employment.
27 If the foregoing analysis is incorrect, the appeal should be dismissed in any event because the appropriate application of the legal onus would not, in my view, result in a different outcome.[9]
[1] The proceedings were brought by Mervyn Pitts pursuant to s.39 of the Accident Compensation Act 1985.
[2] The jurisdiction exercised by the Magistrates' Court is granted by s.39(1)(a) and s.43 of the Act.
[6] See also the analysis by Hunt J in Apollo Shower Screens v B & Cilsp Corp (1985) 1 NSW LR 561, 565
[7] See for example Watts v Rake [1960] HCA 58; (1916) 108 CLR 158 (Dixon CJ, Menzies and Windeyer JJ) the language of which had to be subsequently explained in Purkess v Crittenden see above; and note Pastras v Commonwealth [1967] VicRp 18; [1967] VR 161 at 164 where it was queried whether indeed the High Court in Purkess v Crittenden needed to make clear that not dissimilar language used in Watts v Rake was suggesting that the ultimate onus of proof was on the defendant rather than the evidentiary onus. See also C R Williams, "Placing the Burden of Proof' in "Well and Truly Tried", Law Book Company (1982) 271.
[8] [1974] VicRp 3; [1974] VR 24 at 28; for other examples see cases cited at 29.
Public Transport Corporation
Pitts [2007] VSC 356
(1965) 114 CLR 164
(1960) 108 CLR 158
(1985) 1 NSW LR 561
(1916) 108 CLR 158