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

Magistrates' Court Act 1989, s.109.

2. On 4 February 1998, after a seven-day hearing which took place in July and August 1997, the Magistrates' Court at Melbourne dismissed a claim by Tatjana Popovski under the Accident Compensation Act 1985 for weekly payments of compensation from 13 July 1995 on and medical expenses; the jurisdiction exercised was conferred by s.43 of that Act. This dismissal led to a successful appeal under s.109 of the Magistrates' Court Act 1989. Such an appeal was held by the Full Court, by majority, to be competent in Logan v. MMI Switzerland Workers Compensation (Vic.) Ltd.[1]. We have before us the employer's further appeal. I shall call the parties "the plaintiff" and "the defendant". The plaintiff worked for the defendant as a process worker, initially between May 1990 and April 1992. Between May 1990 and December 1991, but never thereafter, her work included soldering electrical components, a new kind of solder being used from April or May 1991 onwards. This was sold under the trade name "Kester". A specimen packet was not produced, but according to the plaintiff the packet bore a warning saying that in the first three months of pregnancy the solder might cause abnormalities with the pregnancy. This warning led to complaints from some of the plaintiff's fellow employees. As a result the defendant had tests carried out at the factory by a company concerned with occupational health. In consequence the defendant sent a letter (not in evidence) to its employees which evidently dealt with the results of the tests and allayed their fears.

5. The plaintiff became pregnant in August 1991. A male child, Vasil, was born to her on 29 May 1992. He suffered from gross congenital abnormalities which led to his death on 3 November 1993. In August 1992 the plaintiff was told by doctors of the child's abnormalities and at once associated them with the warning on the "Kester" packets. She arranged to have an analysis of her blood for its lead concentration. This was performed in September 1992 and the laboratory report, dated 25 September 1992, disclosed an elevated level of lead in her blood. The result of the analysis was conveyed to the plaintiff and confirmed her suspicion that use of the "Kester" solder had poisoned her and led to her son's birth defects. But later blood tests did not disclose elevated levels of lead in her blood.

8. The plaintiff returned to work in August 1992, but her son's continued illness caused her to take time off work. Eventually she took leave without pay. After Vasil's death in November 1993, she was away from work for six weeks, a formal mourning period. She returned to work at about the beginning of 1994 and continued working until July 1995. She wished to become pregnant again and have an uneventful pregnancy. She was in addition experiencing difficulties in working. Shortly before ceasing work in July 1995 she had unsuccessfully sought twelve months' leave without pay with a view to having another child.

11. The plaintiff became pregnant again in March 1996 and two months later she miscarried. The magistrate found that the miscarriage was quite unrelated to the former employment.

14. In the Magistrates' Court the plaintiff's case was put in two main ways. Her primary contention was that she had suffered from lead poisoning while using the "Kester" solder between April or May and December in 1991 and that this in turn had led to damage to the foetus. This case, which had generated a great deal of expert evidence and occupied the court for a long time, failed. In careful and extremely detailed reasons for decision the magistrate found that the result of the September test of the lead level in the plaintiff's blood was inaccurate and further that it had not been shown that Vasil's abnormalities were caused by the plaintiff's exposure to lead in her work. In the appeal brought by the plaintiff no complaint was made of those findings or concerning the failure of her primary case. Her secondary case was that she had sustained not a physical but a psychiatric injury - a morbid grief reaction, or a post-traumatic stress disorder - as a result of her mistaken belief that she had, through working with the "Kester" solder, suffered from lead poisoning which had led to the death of the child. This alternative claim also failed and it was to this alternative claim that the plaintiff's appeal related.

17. The magistrate found that the plaintiff had sustained an injury, a morbid grief reaction to the death of her son, with associated moderately severe depression. We were told by counsel that the magistrate was asked not to concern himself with the matter of incapacity for work. He concluded that the injury arose in the course of the employment, but was not satisfied that the employment was a significant contributing factor, as required by s.82(1) of the Accident Compensation Act as from 1 December 1992, as a result of its amendment by s.11(1) of the Accident Compensation (WorkCover) Act 1992. The case was conducted before the magistrate on the basis that the psychological injury set up by the plaintiff was alleged to have been sustained after the death of Vasil in November 1993 and on the basis that the amended s.82(1) required the employment to be a significant contributing factor to that injury.

20. Section 109 of the Magistrates' Court Act gives a right of appeal "on a question of law". The application to the Master by which the appeal under s.109 was launched led to the making of an order by Master Wheeler on 6 March 1998 which stated three questions of law as shown by the plaintiff to be raised by the appeal:

"(a) Whether the finding of the Learned Magistrate that the Appellant's employment with the Respondent was not a significant contributing factor to her injury within the meaning of Section 82 of the Accident Compensation Act 1985 was a finding which no reasonable Magistrate could have made upon the evidence? (b) By finding that the Appellant would probably have not suffered her injury if the employment had not taken place was the Learned Magistrate bound to find that the employment was a significant contributing factor and erred in so deciding? (c) Having found that the Appellant would probably not have suffered her injury if employment had not taken place, did the Magistrate err in not holding that the employment was a significant contributing factor?"

24. As one would expect, the three questions stated in the Master's order all relate to the only issue on which the plaintiff had failed in the Magistrates' Court, namely, whether the employment was a significant contributing factor to the injury. When the appeal was argued before the judge, in July 1998, the defendant, in addition to submitting that the magistrate had not erred in determining that the employment was not a significant contributing factor to the injury, put an alternative argument that in any event the decision below should be upheld because the magistrate should have dismissed the claim for compensation on the ground that, contrary to the view taken by him, the injury did not arise in the course of the employment. The judge upheld the contention that the magistrate had erred in finding that the injury had arisen in the course of the employment, since there was no temporal connection between it and the employment. His Honour referred to Kavanagh v. The Commonwealth[2] and the authorities mentioned by O'Bryan, J. in Fitzgerald v. Ainsby Rubber Co.[3]. His Honour was further of the view that it was open to the defendant to sustain the order on any basis that had been available to it in the Magistrates' Court, citing Director of Public Prosecutions v. Makris[4] and Director of Public Prosecutions v. Webb[5], cases concerned with appeals under s.92 of the Magistrates' Court Act.

27. 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.

30. The judge, as I have said, ordered that a different magistrate determine the question whether the injury arose out of the employment. His formal order was that "the proceeding be remitted for rehearing and determination by the Magistrates' Court, differently constituted, in accordance with my reasons". In his reasons the judge said:

"At the fresh hearing, the appellant must be disentitled to contend that she in fact suffered lead poisoning, or that her son's death in fact resulted from her being exposed to lead gas and dust in her employment. Upon the fresh hearing, were the learned magistrate to make the same findings as to the nature of injury caused to the appellant and as to the operative causal factors as were made on the occasion appealed from, it would be open to him (or her) to conclude that injury arose out of the employment, but not that injury arose in the course of the employment. The magistrate would be obliged to conclude, upon the assumed findings, that the employment was a significant contributing factor to the injury."

34. By s.109(6) of the Magistrates' Court Act, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for rehearing with or without any direction in law. Unlike s.52(5) of the Administrative Appeals Tribunal Act 1984, s.109(6) does not use some such words as "either with or without the hearing of further evidence". There was viva voce evidence and cross-examination at the first hearing and I doubt very much whether the judge contemplated that the new magistrate would act on the evidence led at the first hearing: his Honour evidently contemplated a complete rehearing subject to the plaintiff's being precluded from relitigating the issue whether she suffered lead poisoning and her son died as a result.

37. The judge's conclusion that the magistrate had not by implication decided the "arising out of" question in favour of the defendant is not attacked on the further appeal, which thus raises two questions only. The first is whether the judge was right in determining that it was open to the magistrate to find that the plaintiff's injury arose out of her employment. The second is whether the judge was right in determining that it had not been open to the magistrate to decline to find that the employment was a significant contributing factor to the injury. I turn at once to the second question.

40. The notice of appeal and the defendant's outline of argument proceeded upon the basis that the three questions stated in the order of the Master are questions of law within the meaning of s.109 of the Magistrates' Court Act, and no attempt has been made in the oral argument to put the contrary view. The case is not one in which an affirmative finding is challenged on the ground that there was no evidence to support it. It was for the plaintiff to show that the employment was a significant contributing factor to the injury and, having failed in the Magistrates' Court on that issue, she attempted to persuade, and succeeded in persuading, the judge that the magistrate had been constrained to make an affirmative finding in her favour. Since the point has not been taken, I do not propose to consider whether it might have been argued with success on the present appeal that the questions set out in the Master's order were not questions of law. I do no more than mention McPhee v. S. Bennett Ltd.[8]; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen[9]; Poricanin v. Australian Consolidated Industries Ltd.[10]; Mahony v. Industrial Registrar of New South Wales[11]; Azzopardi v. Tasman UEB Industries Ltd.[12].

43. 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.

46. The magistrate began by referring to s.5(1B) of the Accident Compensation Act:

"(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

(d) the probable development of the injury occurring if that employment had not taken place; and

(g) the activities of the worker outside the workplace -

"Some or all of the matters contained in s.5(1B) are those which one would consider, in any event, in a case where the link between an injury and employment was in issue. For the use of the words 'contributing factor' recognises that an injury may be caused by more than one factor. The inclusion of 'significant' means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to be gauged. That is, whether it is a significant contributing factor or not. There may be more than one factor which is significant and one factor may be more significant than another but the questions remains whether the worker's employment is a significant contributing factor to the causation of his or her injury. It may be of lesser significance than another but nevertheless satisfies the description of 'significant'."

61. The primary judge in the present case endorsed this passage in the magistrate's reasons.

64. At the end of his reasons on this point the magistrate said:

"I do not consider that the plaintiff's employment with the defendant was a significant contributing factor to her injury. The employment was responsible for two things - her use of solder and her reading of a warning on a packet. The evidence does not establish the employment caused the death of her son. It was not responsible for the inaccuracy of the September test. It was not responsible for the plaintiff's miscarriage. The link between the employment and her injury is tenuous and falls short of constituting a significant contributing factor."

68. The Master's order does not state any question suggesting that the magistrate had misdirected himself in any way as to the meaning of "significant contributing factor". No criticism has been sought to be made in argument of his use of the word "tenuous" to describe the link between the employment and the injury. I think his Worship was treating "tenuous" as an antonym of the word "significant" used in the Act. "Insignificant" is one of the meanings of "tenuous" given in the Shorter Oxford English Dictionary, while the Oxford itself includes "of slight importance or significance". The judge's reasons criticise those of the magistrate in respect of the following passage, dealing with s.5(1B):

"(e), (f) and (g) direct attention to aspects of the worker or his or her lifestyle which, where relevant, have contributed to a particular injury."

"That passage plainly suggests that the paragraphs in question would only be relevant where circumstances fitting them were present; in which case those facts would be put in the balance against the worker. That construction cannot be correct. The absence of facts falling within any of those sub-paragraphs may very well tell strongly in favour of there having been significant employment contribution to injury in a particular case. The learned magistrate later said: 'None of (e), (f) and (g) is relevant'. In light of his earlier remark, that must be taken to mean that there were no circumstances falling within any of those sub-paragraphs. It was wrong to say that the sub-paragraphs were thereby irrelevant. The absence of circumstances falling within those sub-paragraphs was potentially advantageous to the appellant."

76. I do not think the magistrate was doing anything more than observing that on the facts of this case hereditary risks and the worker's life-style and activities outside the workplace had not contributed to the injury, without meaning to convey that the absence of any such contribution had no bearing on whether the employment was a significant contributing factor to the injury. But whether or not this is so, the questions stated in the Master's order do not raise any question of the magistrate's having misdirected himself in this regard.

79. I have not mentioned all the criticisms made by his Honour by way of suggesting that the magistrate may have misdirected himself. He referred to what the magistrate had said about para.(a) of s.5(1B), but I am not persuaded that the magistrate made any error of law, or at any rate any error of law material to his ultimate finding, in considering that paragraph. The judge was, as appears from his reasons[13], not treating these points as grounds vitiating the determination made by the magistrate but rather using them to explain, as a matter of interest, what he regarded as the error shown in declining to make a finding which had to be made. On this appeal the plaintiff has sought to rely on certain of the same points as vitiating the magistrate's determination that the employment had not been shown to be a significant contributing factor. But, as I have already said, these points were not raised by the Master's order. Question (a) raised only the question whether the negative finding was one which no reasonable magistrate could have made upon the evidence and, to the extent to which questions (b) and (c) raised specific error, the suggestion is only that the making of one particular finding necessitated the making of an affirmative finding on the ultimate issue. The points now sought to be argued did not arise on the appeal to the judge and cannot now be entertained.

82. 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.

85. The course of events has not prejudiced the plaintiff, since, as I have said, I would not have upheld the complaint now sought to be relied on that the magistrate misdirected himself.

88. The finding which it is said the magistrate had to make was an inference which it is said by the plaintiff he was obliged to draw. Whether the employment was a significant contributing factor was a question of degree, requiring an evaluation. Compare Edwards (Inspector of Taxes) v. Bairstow[14]; S. v. Crimes Compensation Tribunal[15]; Roy Morgan Research Centre Pty.Ltd. v. Commissioner of State Revenue (Vic.)[16]. We do have the magistrate's findings of primary fact and, as I have said, he seems to have accepted the plaintiff's evidence as reliable. The magistrate discussed the medical and other expert evidence at length in his reasons. In this discussion it is not always clear whether the magistrate is summarising the evidence, or making a finding, or doing both at the same time. But this doubt works in favour of the defendant so far as the present question is concerned in so far as the evidence summarised, or finding made, can be said to tend to suggest that the employment was not a significant contributing factor to the injury. For when one is considering what finding the magistrate could make on that ultimate issue it is immaterial whether, on a given question of fact, the magistrate is making a finding or merely recording an expert opinion (which he does not expressly reject and which he may therefore, for all one can tell, accept). I give a number of examples from the reasons:

"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."

92. It can be said that the magistrate either found or was at liberty to find facts which included the following:

* The plaintiff used solder in her work and read the warning on the packet. * In August 1992 she was told by the doctors of Vasil's abnormalities and she associated them with her use of solder. * In September 1992 she was told of a blood test result showing her blood to have an elevated lead level. * This result was erroneous. The defendant was in no way responsible for the error. * The plaintiff was not aware that the result was erroneous. It confirmed her suspicion that her use of solder was responsible for Vasil's abnormalities. * Several later tests showed the plaintiff's blood level of lead to be normal. * The plaintiff was aware of these later test results. * The plaintiff was able to work between the beginning of 1994 and 13 July 1995. * By June or July 1995 her mental state had improved to such an extent that she felt able to have another child. Thereafter she tried to conceive. * She became pregnant in March 1996. During her pregnancy her mental state improved considerably. Between December 1995 and June 1996 it improved to such an extent that the degree of her incapacity for work was partial only. * The plaintiff miscarried in June 1996. * Her employment was in no sense responsible for the miscarriage. * The miscarriage eliminated much, if not all, of the plaintiff's improvement. She became totally incapacitated for work. She took anti-depressant medication regularly only after her miscarriage. She firmly believed that lead in her blood had caused her to miscarry. The miscarriage ruined her improvement and convinced her that she was permanently contaminated with lead and thus had no chance of giving birth to a healthy child. It is quite likely that, if there had been no miscarriage, the plaintiff would have reverted to her normal life (evidence of Dr Holwill).

96. I have already set out the concluding paragraph of the magistrate's reasons dealing with "significant contributing factor", which refers to the fact that the miscarriage was not related to the employment. His Honour said this:

"In passages in his reasons to which I have referred his Worship indisputably found that, absent exposure to lead and the appellant reading the warning label, the injury would not (indeed, could not) have occurred. He also found, indisputably, that absent the death of her son the injury would not have occurred. At their most favourable for the respondent his Worship's findings require the additional conclusion that the injury would not have occurred in the absence of the inaccurate blood test of September 1992. That cannot be said in respect of the miscarriage - for the injury, according to the findings, had disclosed itself before that event. At their most favourable, the findings require only a conclusion that the miscarriage brought about a worsening in the appellant's injury."

100. The magistrate accepted the diagnosis of Dr Holwill and presumably accepted his view that the condition of morbid grief reaction and associated depression had manifested itself a considerable time before the miscarriage. In my summary of some of the facts which the magistrate either found, or was at liberty to find and may have found, I have included references to the miscarriage.

103. While the magistrate accepted that the psychiatric condition had manifested itself before the pregnancy which resulted in a miscarriage, it was impossible for him to assess the lay and expert evidence bearing on the plaintiff's condition and its causes without regard to what the evidence disclosed about events after the first manifestation of the condition. This is illustrated by two findings of the magistrate on which the judge indeed relied in reaching his conclusion on the issue of "significant contributing factor". One of these two findings is contained in the following passage:

"The plaintiff's grief reaction is clearly abnormal. Apart from continuing despite Vasil's death more than four years ago it is characterised by the unusual behaviour described earlier. Her depression is mostly due to her assessment of her contribution to her son's death by exposing herself to lead in the workplace. To this is added the refusal of the defendant to grant her unpaid leave in order to have another child. This she considers unreasonable. It deepens and prolongs her depression by adding to her unfavourable view of herself."

107. The words I have italicised are the words in the finding relied on by his Honour. The passage quoted shows that the magistrate is dealing with the plaintiff's condition at the time of the hearing ("it is characterised"; "is mostly due"). The reference to the effect of the defendant's refusal to grant unpaid leave similarly shows that the magistrate is not confining himself to events occurring by the time of the first manifestation of the psychiatric condition. In concluding that the magistrate's refusal to find the ultimate fact was not open his Honour relied on a finding which itself had regard to events occurring after the first manifestation of the psychiatric injury. That finding ("her depression is mostly due"), dealing as it did with the situation obtaining at the hearing, is to be read against the background of the magistrate's findings - actual, or possible on the evidence - that by 1995 the plaintiff did not believe that she was permanently poisoned by lead and did believe that she could have a child without abnormalities, that by the time of the pregnancy in March 1996 her state was such that, had there been no miscarriage, she might well have reverted to a normal life and that it was the miscarriage which persuaded her that she was permanently contaminated with lead. These further facts presumably strengthened "her assessment of her contribution to her son's death by exposing herself to lead in the workplace".

110. The second finding of the magistrate relied on by the judge was this:

"In this case, the injury arose because the plaintiff believes that her exposure to lead in the defendant's workplace caused the death of her son. She worked with solder which contained lead. She read a warning on a packet which contained the solder. In my opinion, her injury occurred in the course of her employment with the defendant."

Again, the first sentence uses the present tense ("believes"), coupled with the past ("arose"). It is not clear that the magistrate was not speaking of the plaintiff's state of mind at the time of the hearing, when her view of the cause of Vasil's abnormalities had been strongly - albeit wrongly - reinforced by the miscarriage.

115. In dealing with the paragraphs of s.5(1B), the magistrate said:

"With respect to (d), if the employment had not taken place then the plaintiff would probably have not have (sic) suffered her injury for there would be no reason for her to blame herself for Vasil's illness. There would have been no reason to ask the defendant for 12 months unpaid leave to enable a pregnancy and birth away from the defendant's workplace with the consequent effect upon her of the refusal."

"Fourth, his Worship found, paraphrasing sub-paragraph (d), that if the employment had not taken place the appellant would probably not have suffered her injury. Because it was put into the language of the sub-paragraph, that finding understated the strength of two earlier findings, findings not sought to be challenged on the appeal. Thus: * 'her depression is mostly due to her assessment of her contribution to her son's death by exposing herself to lead in the workplace'; * 'the injury arose because the plaintiff believes that her exposure to lead in the defendant's workplace caused the death of her son. She worked with solder which contained lead. She read a warning on a packet which contained the solder'."

"In my opinion, thus analysed, it was not possible to conclude that the employment was not a significant contributing factor to the injury. His Worship found not simply that injury would probably not have developed if the employment had not taken place. He found unequivocally that, absent the employment, that (sic) the injury would not and could not have been suffered. It is extremely difficult to understand how it could be concluded, in such circumstances, that the employment contribution to injury was not of considerable amount or effect. It could not be said that the employment contribution was of some lesser effect simply because other factors were also of considerable contributing amount or effect. For that would be to ignore the indefinite article in the definition of 'injury' and in s.82(1) of the Act - a matter which his Worship specifically recognised in a portion of his reasons to which I earlier referred."

127. As regards the passages just cited from the judge's reasons, I do not think that the finding that "if the employment had not taken place then the plaintiff would probably not have suffered her injury" is clearly to be regarded as a paraphrase of para.(d) of s.5(1B) or as a finding put into the language of para.(d). These descriptions suggest that the magistrate's choice of words, and in particular his use of "probably", was merely the result of the words employed in the paragraph. This may be so. On the other hand, the magistrate's use of "probably" in the finding which he made in considering para.(d) of s.5(1B) may reflect the evidence of Dr Holwill in cross-examination that "on the balance of probabilities" the plaintiff would not have had a morbid grief reaction if she had not believed that lead poisoning had caused Vasil's abnormalities. His Honour was no doubt concerned with the magistrate's use of the word "probably" when making his finding for the purposes of para.(d) when his Honour described that finding as understating the strength of two earlier findings. Those two earlier findings I have set out above.[17] The first of these was not made in dealing with the matter of "significant contributing factor". It was made in the course of making a finding of "injury". The second finding was not made in dealing with "significant contributing factor". It was made in considering the "course of employment" issue. Findings made for another purpose are of course available when one is considering the magistrate's refusal to make a finding of "significant contributing factor", but it is to be borne in mind that in making those other findings the magistrate was not attempting to make the evaluation required for the resolution of that ultimate issue.

130. The evidence did not imperatively require a finding, nor do I think it can be said to have been shown that the magistrate made a finding, (to use the judge's words) "not simply that injury would probably not have developed if the employment had not taken place" but "that absent the employment, the injury would not and could not have been suffered".

133. I do not think the magistrate was constrained to find that the employment was a significant contributing factor to the injury. In particular - and I turn now specifically to the second and third questions stated in the Master's order - I do not think that the magistrate's finding that "if the employment had not taken place the plaintiff would probably have not suffered her injury" is inconsistent with a failure to be satisfied that the employment was a significant contributing factor to the injury. (I would take the same view even if, as the judge thought, the magistrate should be taken as intending to make that finding as a matter of certainty as opposed to probability.) Quite apart from s.5(1B), I simply do not see any inconsistency between the affirmative finding that was made and the failure to be satisfied of the ultimate fact. Moreover, to take the contrary view by holding that there was inconsistency would have the effect of elevating above the others one only of the matters listed in s.5(1B), and of elevating it to a position not merely of predominance but of conclusiveness. This is the matter the subject of the rather unhappily worded para.(d), the effect of which was discussed in argument - "the probable development of the injury occurring if that employment had not taken place". I do not think it correct to say, either as a proposition of general application or as one confined to the facts of this case, that a finding that the injury would not have been caused to the worker if the employment had not taken place necessitates a finding of "significant contributing factor".

136. I would allow the appeal on the ground that it was open to the magistrate to refuse to make the necessary "significant contributing factor" finding. It is unnecessary to consider the "arising out of" point. The defendant contends that the magistrate's failure to be satisfied that the employment was a significant contributing factor to the injury means that he would necessarily have determined adversely to the plaintiff the question whether the injury arose out of the employment. But we have heard no argument on any aspect of the "arising out of" point and I express no opinion on any aspect of that point.

141. In my opinion the appeal should be allowed, in essence for the reasons stated by the learned presiding judge.

151. Subject to anything counsel may say concerning the form of order, the order will be in accordance with these minutes:

157. There will be a certificate under s.13 of the Appeal Costs Act 1964.

[2] [1960] HCA 25; (1960) 103 C.L.R. 547 at 556 per Dixon, C.J. (I have corrected a clerical error in the page reference.)

[3] [1987] VicRp 39; [1987] V.R. 437 at 440-2

[5] [1993] VicRp 82; [1993] 2 V.R. 403 at 414-7 per Ormiston, J.

[8] (1934) 52 W.N.(N.S.W.) 8 at 9

[9] [1945] HCA 22; (1945) 70 C.L.R. 635 at 643

[10] [1979] 2 N.S.W.L.R. 419

[11] [1984] 3 N.S.W.L.R. 315 at 324

[12] [1985] 4 N.S.W.L.R. 139

[14] [1955] UKHL 3; [1956] A.C. 14 at 33 per Lord Radcliffe

[15] [1998] 1 V.R. 83 at 89 per Phillips, J.A.

[16] (1997) 37 A.T.R. 528 at 533-4