Ericsson (Australia) Pty Ltd v Popovski [2000] VSCA 52

Ericsson (Australia) Pty Ltd v Popovski [2000] VSCA 52 - VSCA 2000 case summary — Zoe

[15]

The question then arose whether it was possible for the defendant to sustain the decision below in this way in view of the plaintiff's alternative contention that the injury, while not arising in the course of the employment, arose out of it. The judge rejected the employer's answering contention that the magistrate had by implication made an adverse finding on the "arising out of" question and, after discussing the authorities, concluded that this had, on the evidence, been a "jury question", in the sense that the magistrate was not constrained to decide it one way or the other but was at liberty to make a finding either way. Since his Honour concluded that the magistrate had been constrained to find that the plaintiff's employment was a significant contributing factor to the injury, he thought the only satisfactory course was to have determined the question whether the injury arose out of the employment, and he directed that this determination be made by a different magistrate. His Honour relied on r.58.13, whereby the judge hearing an appeal under s.109 may give any further or other directions as may be conducive to the effective, complete, prompt and economic determination of the appeal. The judge held that this rule authorised him to order and direct, as he did, that the question "whether the learned magistrate was compelled to find that the injury caused to the appellant did not arise out of her employment, or alternatively was compelled to find that such injury did arise out of her employment, or alternatively whether in any event it was open to the learned magistrate to find that injury arose out of the appellant's employment be considered and determined on the hearing of this appeal". It was in consequence of this direction that his Honour made the determination already mentioned that the "arising out of" question was a jury one. In giving the direction in reliance upon r.58.13 his Honour relied on what had been done by Mandie, J. in Director of Public Prosecutions v. Hinch[6] and by Smith, J. in Buckman v. Barnewartha Abattoirs[7]. The course taken by his Honour in reliance upon r.58.13 and those two unreported decisions is not challenged by the notice of appeal and so it is unnecessary for us to consider it.

[21]

If I had been asked to decide, on the findings of primary fact made by the magistrate, whether it had been shown that the employment was a significant contributing factor to the injury, I should have concluded that the answer was yes. But the fact that a judge would differ from a magistrate on a question of fact does not necessarily show any more than that the view of the judge differs from that of the magistrate on a question of fact. If the primary judge in the present case had been exercising the jurisdiction which this Court exercises in dealing with ordinary appeals from findings of fact made by judges of the Supreme Court or judges of the County Court, then the primary judge's view that the magistrate was wrong on a question of fact would have warranted and required that the finding be not allowed to stand. But the appeal given by s.109 of the Magistrates' Court Act is only on a question of law, and it is not enough to show error of law simply to persuade a judge that the magistrate went wrong on a question of fact. The plaintiff accepts this, and acknowledges that it was necessary for her to satisfy the judge, as she did, not only that the finding of the magistrate was wrong in the sense that the judge himself would have come to a different conclusion on the primary facts found by the magistrate, but also that the magistrate was constrained to make the finding which commended itself to the judge. It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. It will be impossible to sustain this burden in cases where the refusal to make the finding sought may be grounded in a refusal, open to the tribunal, to accept part or parts of the evidence. I refer to the decisions which I cited as bearing on whether the questions posed in the present case by the Master's order are questions of law. But in the present case the magistrate seems to have accepted the plaintiff's evidence as reliable and it may be said that the question is not whether on the evidence as a whole the magistrate was constrained to make a certain finding, but whether on the findings of primary fact which the magistrate made he was constrained to make that finding. This is, as I shall mention later, subject to the qualification that regard must also be had to findings which it was open to the magistrate to make and which he may, consistently with his reasons for decision, have made, notwithstanding that he did not announce them.

[36]

Mr Gorton, accepting that the points were not covered by the Master's order, said that he desired to argue, in resisting the present appeal, that "the learned magistrate erred in law in the circumstances of the case in determining that none of sub-paras.(e), (f) or (g) of s.5(1B) were relevant to the question of significant contributing factor". It will be seen that this question put forward as a question of law does not raise all the matters mentioned by the judge as possible matters of misdirection. At first Mr Gorton was minded to make to us some application for an order which he said, if granted, would have the result that this additional question could be dealt with by us on this appeal. But, having been given the opportunity by us of overnight consideration, he told us on the resumption of the hearing that he did not ask the Court for any order but merely submitted that the Court had power to entertain this question because the judge could, by the making of an order, have seised himself of the question, and he referred to Director of Public Prosecutions v. Hinch and other unreported decisions as bearing on the power of the primary judge. In my view there is not sufficient prospect of the success of the points now sought to be raised to warrant the entertaining of those points, even assuming that we have the power to entertain them, and quite apart from the consideration that the plaintiff deliberately chose not to endeavour to persuade the judge that he should set aside the magistrate's determination on the ground that he had misdirected himself. This matter of suggested misdirection arose below only during the address in reply of plaintiff's counsel, and at that stage the judge made it entirely clear that he regarded misdirection as falling outside the questions of law stated in the Master's order and that he would not allow the matter of misdirection to be argued unless application was made to him based on a written specification of the alleged errors and he was persuaded that he had power to, and should in the exercise of his discretion, make an order which had the effect of allowing the misdirection points to be determined on the appeal. No application was made by the plaintiff's counsel, either at that stage or subsequently, nor did counsel attempt to persuade the judge that the points could properly be determined in the absence of some order, nor, after the judge had expressed his view of the position with regard to the questions which were before him, did the defendant's counsel make any attempt to argue further the matter of suggested misdirection. In the result, we do not have the judge's final view on these questions by way of determination, nor in my view can we be confident that the argument before the judge was as full as it would have been had it been known that the points were to be determined below.

[39]

"With the passage of time her mental state improved to such an extent that she felt able to have another child. She conceived in March 1996 but miscarried in May. During this pregnancy her mental state improved considerably. Following the miscarriage she is now convinced her blood is poisoned by lead." (This is clearly a finding.) "The plaintiff has regularly attended upon Dr Holwill and a psychologist, Mr Weaver, to whom she was referred by Dr Holwill. Her symptoms improved between December 1995 and June 1996 when she miscarried. This reversed the process of her improvement considerably. However, she continued receiving treatment from Dr Holwill and Mr Weaver. Despite anti-depressant therapy she remains significantly depressed. The plaintiff took anti-depressant medications regularly only after her miscarriage. She has also developed a marked phobic anxiety state in relation to the defendant's places of employment. As Dr Holwill noted in his report dated 14 July 1997: 'Any discussion about her attending there for any reason induces a marked lowering of mood and agitation and subjective anxiety. I do not believe that she could ever work at that site again'." "The miscarriage in 1996 ruined her improvement and convinced her that she was permanently contaminated with lead destroying any chance of her giving birth to a healthy child. At his first attendance upon the plaintiff Dr Holwill considered her totally incapacitated. She remained so incapacitated in July 1997. Between December 1995 and May or June 1996 her condition improved to such an extent that the degree of her incapacity for work was partial. It reverted to total with the occurrence of the miscarriage." "For Mr Weaver, the miscarriage eliminated much, if not all, of the plaintiff's improvement. She considered it unusual to miscarry after 14 weeks and accordingly, there must be an unnatural cause of the miscarriage, namely, the effects of lead. By 6 August 1996 she was very distressed and totally incapacitated for work. He last saw the plaintiff in April 1997. Her condition had not changed much and she was still totally incapacitated."

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Parties