Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130

Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130 - SAWCT 2004 case summary — Zoe

[40]

25 It is apparent, however, that the learned Deputy President did see the worker's physical disabilities, as opposed to any description of his personality, as being relevant. In pars 147 - 153 inclusive he detailed the reasons for his finding that the appellant's method of implementation of the worker's redeployment was unreasonable, highlighting the appellant's failure to address the worker's legitimate concerns about his physical capacity to do the job being asked of him.

26 In any event, we think the learned Deputy President's description of how reasonable action in s 30A is to be assessed, in pars 113 and 114 of his decision, was fair and accurate in law, and that in particular he was right in indicating that reasonable action is to be considered having regard to the impact of the employer's actions on the particular individual concerned, and not on some abstract 'ordinary' worker. The actions of the employer are to be measured against an objective reasonable standard, but the legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be: per Mason JA as he then was, in Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29 at 44, whose judgment was upheld by the High Court (1973) 47 ALJR 236.

The causation link

27 Section 30A provides that an illness or disorder of the mind will only be compensable if the employment is shown to be a substantial cause of the disability and if the disability does not arise wholly or predominantly from any of the precluding events described in s 30A(b). The onus is upon the worker to establish all of the matters in pars (a) and (b) of s 30A: SA Mental Health Services Inc v Murgush unreported Full Supreme Court 8 September 1995 judgment number S5246.

28 The learned Deputy President's findings that the worker did have an illness or disorder of the mind and that his employment was a substantial cause of this disability (par 108 decision) were not challenged on appeal.

29 It was the appellant's case that if the worker did have an employment related illness or disorder of the mind, ie if Dr Schembri's evidence was preferred to that of Dr Cotton, then his disability was caused by the appellant's reasonable actions taken in a reasonable manner in transferring or attempting to transfer him in July 2000: par 90 decision; tr 546 - 7.

30 The learned Deputy President preferred the evidence of Dr Schembri over that of Dr Cotton and he gave his reasons for doing this.

31 Dr Schembri had first seen the worker in July 2003 on referral from the worker's general practitioner, Dr Karpinski. It was Dr Schembri's opinion that the worker was then incapacitated for working at Mitsubishi because of a mental condition which in his report of 4 November 2003 Dr Schembri described as 'an adjustment disorder with an anxious mood'. Dr Schembri attributed the worker's condition to "injuries that he suffered in the course of his work in the past and the series of events that happened around the middle of 2000 as discussed in the main body of the report".

32 As to the events occurring around the middle of 2000, Dr Schembri's report recorded these as follows:-

[48]

33 Dr Schembri said that the worker's account of these past events suggested that he was "quite agitated at the time he decided to ask for a retrenchment package. In fact he only did so because he felt he had no option, fearing that he would injure himself further if he continued to work for Mitsubishi and seeing no other way out".

34 The parties joined issue on the reasonableness, or otherwise, of the appellant's actions/responses in connection with these events in and around July 2000. No other disqualifying event within s 30A(b) was contended by the appellant, or suggested on the evidence. Considerable time in the hearing, and decision, went into examining every aspect of the meetings between the worker and various representatives of the appellant in late June and early July 2000. The learned Deputy President found that the appellant's actions/responses had been unreasonable in all the circumstances.

35 Having found that the worker had suffered an illness or disorder of the mind, that his employment had been a substantial cause of this disability and that the appellant's method of implementing the failed transfer was unreasonable, the requirements of the Act were satisfied. The worker had fulfilled the onus that s 30A put upon him to establish all of the matters in sub paragraphs (a) and (b).

Breach of mutuality and estoppel

36 Mr Crawley submitted that the learned Deputy President misdirected himself as to the effect in law of the worker accepting the redundancy package. He submitted that the worker had, in accepting the package, breached mutuality and had thereby lost any entitlement to weekly payments. The circumstances were, he said, in principle no different to those in General Motors - Holdens Ltd v D'Andrea (1985) 122 LSJS 301 and the learned Deputy President should have adopted the same reasoning as had the Full Supreme Court in that matter.

37 Mr Crawley submitted that application of the legal principles in D'Andrea would have led to findings that the worker was estopped from asserting that he had not breached mutuality, and estopped also from seeking to restore mutuality.

38 Mr Crawley submitted that it was of no consequence that the worker was found to be totally incapacitated for work, and that the learned Deputy President had erred in law in regarding this fact as precluding further consideration of the issue of breach of mutuality.

39 Mr Martin submitted that where, as here, a worker is found to be totally incapacitated for work, there is no room for application of the concept of breach of mutuality. He cited the decision of Deputy President Acting Judge (as he then was) Gilchrist in Krstic v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Super Tooling Pty Ltd) JD 40/1998 as authority for this proposition, namely, that the concept of breach of mutuality did not arise where the worker was at all material times totally incapacitated for work.

40 D'Andrea was decided under the Workmen's Compensation Act 1971. S 67 of that Act provided:-

[54]

41 The worker had suffered back injuries in the course of his employment which led to various absences from work. The injuries were compensable. He had remained partially incapacitated and the employer provided light duties. The worker then decided to accept an offer by the employer to its employees generally of early retirement, with a special retirement allowance. As a result, the worker resigned and received $13,012 from the respondent, including $5279 superannuation benefits and $4446 retirement benefits. He tried to get other work but was unsuccessful and went on an invalid pension. Two and a half years after his retirement he lodged a claim for weekly payments. He notified his former employer that he was ready, willing and able to undertake whatever suitable work the employer might offer him.

42 On appeal, the Full Supreme Court held that s 67 could have no application. By his acceptance of early retirement in return for a substantial financial benefit, the worker had removed himself from the employer's workforce and had intimated that he was no longer available for work. In those circumstances, it was held that s 67 could not operate to convert the worker's partial incapacity into notional total incapacity. The court further held that the worker was estopped by his conduct from asserting that he was available for work.

43 D'Andrea is immediately distinguishable from the matter at hand by reason of the fact that it was decided under different legislation, the fact that the worker there was only partially incapacitated for work, and the fact that the worker there was, by choosing to retire and accept the benefits of the employer's early retirement scheme, found to have impliedly indicated that he was no longer available for work.

44 Later decisions applied the principle of mutuality to s 35(2) of the current Act, although as noted by King CJ in WorkCover Corporation (Plas-tec Pty Ltd) v Grigor [1994] SASC 4450; (1994) 62 SASR 283, the principle could not be applied in precisely the same way as it did under the previous legislation given that the pre-condition for the deeming of partial incapacity to be treated as total incapacity in s 35(2) did not, unlike the earlier s 67, have an aspect that was specific to the worker's employer.

45 In Grigor a partially incapacitated worker, who had been coping with modified light duties notwithstanding concerns that his compensable back disability might be aggravated, resigned in order to commence a TAFE course in hotel catering. After the worker resigned, the employer engaged another person to perform the duties the worker had done in his partially incapacitated state. For his part, the worker worked for a few months in a restaurant before that work came to an end. He sought other employment but was unable to find any.

46 The worker then wrote to the employer seeking employment within the physical limitations imposed by his disability. A week or so later he followed up his letter with a telephone call to the employer seeking suitable employment. The employer did not offer the worker any suitable work because it said there was no position available for him.

47 The Corporation rejected the worker's claim for weekly payments on the ground that he had "breached mutuality by resigning from employment which was reasonably available, suitable and for which he was certified fit to perform". By resigning, it was contended, the worker had indicated that he was not thereafter ready, willing and able to undertake the suitable work that the employer had made available to him.

48 A Review Officer set aside the Corporation's decision and determined that the worker was entitled to weekly payments. The Corporation's appeals to both the Workers Compensation Tribunal and to the Full Bench of the Supreme Court were dismissed.

49 In the Supreme Court, King CJ, with whom Bollen and Mullighan JJ agreed, said:-

[57]

50 Consideration of the principles of mutuality and estoppel in those and other compensation cases was driven by the notion that a statutory provision deeming a worker's partial incapacity to be total should be applied fairly so as to ensure that unreasonable obligations were not imposed on employers when it would be patently unjust for that to occur. It would be unjust, for example, if a worker could be advantaged under the Act by being deemed totally incapacitated for work when he was unwilling to perform available work within his capacity.

51 The learned Deputy President found that the worker was totally incapacitated for work from the time he left the appellant's employ in July 2000. That was a finding of fact. He found that the worker had applied for a redundancy package "because it was represented to him as part of a 'take it or leave it' exercise. The only alternative to the manufacturing quality engineer's job was the package and it was obvious that MMAL would not change the restructuring arrangements to suit the applicant" (par 159 decision).

52 The learned Deputy President found that suitable duties within the worker's capacity had not been made available, and that this had compounded the worker's medical condition.

53 As noted previously, Dr Schembri, whose evidence the learned Deputy President accepted, had reported that "your client's account would suggest that he was quite agitated at the time that he decided to ask for a retrenchment package. In fact he only did so because he felt he had no option, fearing that he would injure himself further if he continued to work for Mitsubishi and seeing no other way out".

54 On those findings, it is difficult to see how it could be said that the worker had voluntarily retired or declared himself unwilling to take up suitable employment. He was, on the learned Deputy President's findings, unfit to work on account of his compensable disability. Moreover, even if he had not been totally incapacitated, it could not be said that by his conduct he was asserting that he was no longer available for work. Suitable duties had not been made available. The principles of mutuality and estoppel can have no role in these circumstances.

The learned Deputy President's failure to take into account the benefits accruing to the worker from the redundancy package

55 The benefits received by the worker under the redundancy package were not benefits provided under the Act. They were benefits to which the worker was entitled on account of him being made redundant. That he volunteered for redundancy, as opposed to having redundancy forced upon him, is of no consequence. Payments, allowances or benefits paid or conferred in relation to redundancy are not to be taken into account in the calculation of a disabled worker's weekly payments: s 35(4).

56 The learned Deputy President was right in disregarding the worker's redundancy package benefits.

57 The appeal is dismissed.

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