Marescuk v Don Smallgoods Company Pty Ltd [2000] VSC 120

(b) On the whole of the evidence was it open to the learned Magistrate to have found that the Appellant was not incapacitated within the meaning of sections 93 and 93CA of the Act?

(c) Did the learned Magistrate err in law in holding that the Appellant's claim for medical expenses should be dismissed by reason of attracting the same onus of proof on the Appellant as the claim for weekly payments of compensation under the Act?

(d) Having found that the Appellant suffered injury as claimed, did the learned Magistrate err in law in holding that the Appellant was not entitled to an order that the Respondent pay his reasonable medical and like expenses incurred as a result of the injury so found?"

9. In order to understand the questions, it is necessary to describe something of the nature of the claim, the evidence led below, and the learned Magistrate's conclusions.

12. By his statement of claim dated 30 September 1998, the appellant alleged that at material times he had been a worker employed by the respondent and that on 14 January 1998 he had suffered a compensable injury. He claimed weekly compensation from 31 March 1998 and payment of medical and like expenses. 31 March was the date upon which the respondent retrenched the appellant. The claims were thus made under s.93 and s.99 of the Act.

15. The respondent, in substance, denied that the appellant had sustained compensable injury and denied that there was any compensable incapacity in the event that injury had been sustained. The respondent, by its defence, did not specifically address the claim for medical and like expenses.

18. The matter was heard in the Magistrates' Court over a period of four days. On the last of those days, that is 4 October 1999, the last of the evidence was adduced, counsel made submissions, and the learned Magistrate delivered his reasons and made the order which is now the subject of challenge.

21. His Worship found, there having been considerable dispute about the matter, that an incident had occurred in the course of the appellant's employment on 14 January 1998. That involved acceptance of an account of the incident given by the appellant. That evidence was to the effect that the appellant had taken the impact of a cage containing smallgoods, suspended on an overhead rail, when the cage had begun to run out of the door of a brine chiller, which he, the appellant, had opened. I was told from the Bar table that the weight of the cage was very considerable, and it might be thought to have been a significant exertion to have attempted to stop it as it was moving towards the appellant, notwithstanding that it remained suspended on the rail.

24. According to the appellant's evidence he suffered an onset of back pain at the time and shortly thereafter he attended at the respondent's clinic. There was debate as to when it was and with what history the appellant had first attended the clinic. It was not in doubt that he had so attended.

27. The learned Magistrate, having determined that an incident occurred, made no clear finding what injury the appellant sustained. He must have found that an injury had been sustained, for if he had not done so the matter stopped there. There would have been no need to go on and deal with the issue of incapacity had the Magistrate found that there had been an incident but no injury.

30. I think it inevitable that his Worship in fact found (though he did not make it explicit) that in the incident the appellant had suffered an aggravation of a pre-existing disability of his lumbar spine, a spine which had been the subject of a previous discrete compensable injury in 1989 and surgery in 1990.

33. Having found, then, that an incident had been proven and that back injury had been caused, his Worship accepted the importance of a question framed by counsel for the respondent in his submissions, that is: Would the appellant have continued to work with the respondent had he not been retrenched?

36. It is, I think, apparent from his Worship's reasons that he considered that the answer to that question would assist him in determining whether the appellant had established a compensable incapacity. In my opinion, there was nothing wrong in him considering that the answer to that question could so assist him. It would have been quite wrong had he approached the matter on the footing that the fact of retrenchment denied incapacity for work, but that was not his approach.

39. In answering the question that counsel for the respondent had posed, his Worship accepted that the respondent's job, despite its supervisory description, involved a degree of physical work. In that context, speaking of the period between 14 January 1998, when the incident occurred, and 31 March 1998 when the appellant was retrenched, his Worship said that the appellant "did not relent in his activities and ... continued in an onerous position".

42. His Worship noted that the appellant had seen the company doctor only a few times after 14 January 1998 and his own doctor only once before the retrenchment. What his Worship was conveying, undoubtedly, was that this pattern of treatment was inconsistent with there being an incapacity for work after 14 January which reflected itself in earnings loss from the time when the retrenchment occurred.

45. His Worship observed that during the period until retrenchment the plaintiff had remained at work whenever he was required to be at work. That was apparently the situation. The appellant had taken his annual leave in the period between 24 February and 25 March 1998. It had been contended on his behalf at trial that he had taken leave because of back pain attributable to the incident of January 1998 and because of his reluctance to claim compensation for fear that he might lose his job. It is apparent that the learned Magistrate did not accept that there was any significance in the appellant having taken time off work in the period to which I referred a moment ago. In other words, he did not accept that the period of leave was a pointer to the existence of a compensable incapacity for work.

48. His Worship noted that the appellant had obtained no certificate of incapacity from his local medical officer until he was retrenched. He described it as "bewildering" that the appellant had received no such certificate until that time, and that thereafter there had been monthly certification for total incapacity. His Worship summarised the position this way:

"The end result is, gentlemen, that having regard to the fact that the plaintiff worked up to the time of his retrenchment, and suddenly and without any explanation became totally incapacitated, is bewildering. I am unable to accept that whatever the plaintiff's condition may have been, that it was not switched on on the day of his retrenchment or the day before. I accept that the plaintiff worked up to his retrenchment. I accept that he was able to work up to the date of his retrenchment because he did so work, and he did so with little or no assistance, or with little or no medical history. The plaintiff, in those circumstances, has not discharged the onus of proof which the law places upon him as to establish his entitlement to the benefits of the statute".

52. His Worship's overall conclusion might have been better expressed. Mr Boyes of Queen's Counsel, who appeared for the appellant with Mr McKenzie, correctly submitted that it would have been preferable for his Worship to have defined the injury sustained on 14 January 1998, and then to have considered whether any incapacity for work had been established, taking into account, inter alia, the fact that the appellant had worked until retrenchment.

55. That said, it seems to me to be impossible for the appellant to succeed upon either of questions (a) or (b). The first of those questions must necessarily be answered "No", simply because a finding of compensable injury does not compel a finding of compensable incapacity. The second question must be answered "No", because, as Mr Boyes fairly conceded, there was some evidence upon which the learned Magistrate was entitled to conclude that there was no compensable incapacity for work attributable to the incident of 14 January 1998; or, put in the obverse way, that the evidence did not compel the Magistrate to conclude that there had been compensable incapacity for work.

58. Before passing from questions (a) and (b), I should make this point: when the learned Magistrate said that he accepted that the appellant was able to work up to the date of his retrenchment because he did so work, it did not follow that, for that reason, there was no incapacity for work. The distinction between incapacity for work and incapacity to work has long been recognised in the area of workers' compensation, and I would not wish it to be thought that, in concluding that the result arrived at by the learned Magistrate was one open to him, I was endorsing any part of his reasons which suggested that the distinction does not now exist.

61. After his Worship had declared that the appellant had not discharged the onus of proof and that the complaint would be dismissed, the appellant's counsel raised the matter of the claim for medical and like expenses. There had been evidence that the appellant had consulted his local medical practitioner on one occasion before retrenchment; that he had been referred by the works Doctor to Professor Andrew Kaye, the surgeon who had treated him in 1990; and that he had undergone a regime of conservative treatment, physiotherapy, hydrotherapy and medication in the period commencing, as I understand it, at the time of retrenchment. Further, Professor Kaye had arranged for the appellant to undergo, and he had undergone, a CT/myelogram examination in May 1998.

64. What happened when counsel for the appellant raised the question of medical and like expenses was this: his Worship said: "You want continuing medical and like expenses, Mr McKenzie?" Mr McKenzie: "Yes, Your Worship". His Worship: "The plaintiff's still the same and the facts are still the same, and the plaintiff has not discharged any onus, Mr McKenzie".

67. It is his Worship's treatment of the claim for medical and like expenses which is the subject of questions (c) and (d).

70. It is, I consider, extremely difficult to understand what the learned Magistrate meant by the single sentence by which, in substance, he dismissed the appellant's claim for medical and like expenses.

73. Mr O'Loghlen of Queen's Counsel, who appeared with Mr Wright for the respondent, submitted that all his Worship was saying was this: that the plaintiff bore a general onus of proof, not only in respect of the claim for weekly payments but also in respect of the claim for medical expenses. That onus was the civil onus. That was all that was meant by his Worship's reference to "any onus", and it was correct.

76. Mr O'Loghlen further submitted that his Worship's presumed rejection of the appellant's claim for medical and like expenses by reference to the onus of proof was readily supportable: The learned Magistrate had not made any finding as to the nature of injury sustained on 14 January 1998. The nature and extent of any injury sustained was unclear. His Worship had been entitled to be unsatisfied what injury had been sustained, just as he had been entitled to be unsatisfied that there was any compensable incapacity. The medical evidence was far from compelling. There was the complication of the previous back injury, and it was at least a possible view that any need for treatment ought be sheeted home to that injury rather than to the incident of January 1998.

79. The difficulty that I have with the second aspect of Mr O'Loghlen's submission - plausible though it seemed to me to be when I first heard it - is that his Worship's reasons give no hint that he was uncertain what injury had been sustained; and give no hint that he regarded the attendances upon the works doctor and upon the local doctor prior to the appellant's retrenchment, and upon Professor Kaye on referral by the works doctor, to be other than the consequences of injury sustained in January 1998. Indeed, his reasons suggest the contrary. The point that his Worship made when resolving the incapacity claim - that is, that the plaintiff saw the company doctor but a few times between 14 January and 31 March, and that he saw his own doctor once in that period - carry the implication that those attendances did relate to the compensable incident and injury done at that time. What his Worship was saying was that the history of treatment for a compensable injury did not support a conclusion that the appellant was incapacitated for work, that incapacity being demonstrated or being made manifest after 31 March.

82. I go back to the first aspect of Mr O'Loghlen's submission. I cannot accept it. Re-reading the critical passage in his Worship's reasons confirms my initial impressiom that it is quite unsatisfactory. I could not draw out of his Worsip's reference to "any onus" the conclusion contended for by Mr O'Loghlen. It may be that the real meaning of that reference is to be found in his Worship's question, "You want continuing medical and like expenses, Mr McKenzie?". Perhaps his Worship was distracted from considering whether medical expenses incurred in the first half of 1998 were referable to the compensable injury by an asserted entitlement to continuing medical expenses in the latter part of 1999.

85. Perhaps, again, his Worship regarded a finding that there was no compensable incapacity as necessarily meaning that no claim was maintainable for medical and like expenses. If he did so, that was wrong; and Mr O'Loghlen expressly disclaimed any contention to the contrary.

88. In the event, I am satisfied that, by some inappropriate recourse to the concept of onus, his Worship produced an outcome in respect of the claim to medical and like expenses which could not readily sit with other parts of his reasons. It was inevitable, once he found that there had been a compensable incident - this carrying the implication that there had been some spinal injury - and that private medical treatment quite quickly ensued, that there were some compensable medical and like Marescuk expenses. That was so in the absence of a conclusion that the treatment did not relate to the consequences of the identified incident. It did not inevitably follow that the compensable expenses were the expenses of all the treatment that the appellant was given subsequent to 14 January 1998. But certainly there were some such expenses.

91. It seems to me, then, that question (c) - though I do not suggest it is in perfectly satisfactory language - ought attract an answer favourable to the appellant.

94. In the circumstances, I find it unnecessary to deal discretely with question (d).

97. What then should be done? Senior counsel for both parties agreed that if I concluded that the learned Magistrate had erred in dealing with the claim for medical and like expenses, and if I concluded that some medical and like expenses must necessarily have been the subject of an order favourable to the appellant, then it was unnecessary that the matter be remitted to the Magistrates' Court for re-hearing; for I could substitute, in lieu of the Magistrate's order, an order favourable to the appellant in respect of medical and like expenses only, reserving the amount of those expenses.

100. Having concluded that the learned Magistrate did err in dealing with the claim, and that some medical and like expenses must necessarily have been the subject of an order favourable to the appellant, I intend to take the course to which I have just referred.

103. As to costs of the hearing below, having had the advantage of submissions from both senior counsel, I intend to make an order favourable to the appellant on Magistrates' Court Scale B, but to provide for a reduction of the amount by 50 per cent to reflect the significant matter upon which the respondent succeeded below, and has succeeded before me.

109. Well then, subject to anything counsel may say, I will make orders in accordance with the following minutes:

2. Set aside the orders of the Magistrates' Court made 4 October 1999.

(1) the plaintiff's claim for weekly compensation is dismissed;

(2) the defendant pay the reasonable costs of the medical, hospital, nursing and like expenses received by the plaintiff because of the injury sustained on 14 January 1998, the amount of which is reserved;

(3) the defendant pay the plaintiff's costs of 19 May 1999 thrown away on Scale D;

(4) the defendant pay the plaintiff's costs on Scale B, with a certificate for three refreshers; such costs to exclude the costs the subject of paragraph (3) hereof, and to be reduced by 50 per cent.

(5) Reserve liberty to the parties to apply to the Magistrates' Court at Melbourne with respect to any dispute as to the amount of medical, hospital, nursing and like expenses the subject of paragraph (2) of this order, and with respect to any dispute as to the amount of costs the subject of paragraphs (3) and (4) of this order.

120. Then not as part of the orders, I grant the respondent a certificate under the Appeal Costs Act 1998.