Popovski v Ericsson Australia P/L [1998] VSC 61

Supreme Court of Victoria|1998-09-04|Before: Ashley, J.

Accident compensation - 'Injury' - Whether arising out of or in the course of employment - Whether employment a significant contributing factor to injury Appeal - Reliance by respondent, to support final order made in the Magistrates' Court, upon a matter available to the respondent at the hearing in that court - Appellant's ability to raise a matter in

This is an appeal from final orders made by a magistrate on 4 February this year by which the appellant's claim for weekly compensation and medical expenses under the provisions of the (the Act) was dismissed.

On 6 March 1998 a Master made orders framing questions of law. The three questions, in different ways, all ask the court to say that the learned magistrate was constrained to find that the appellant had sustained injury compensable under s.82(1) of the Act.

The circumstances of the worker's claim require brief description. She was employed as a process worker by the respondent between May 1990 and March or April 1992, and again from some time early in 1994 until mid 1995. In her employment between May 1990 and December 1991 she undertook soldering work. From April or May 1991 a new type of solder was brought into use. She was exposed, to some degree, to inhalation of gases containing lead, and to dust containing that element. She read a warning label on a packet of solder of the kind brought into use in 1991. It intimated that use of the product carried with it possible health dangers - in particular, risk of abnormal pregnancy. Fellow-employees also became aware of what the labels said. Complaints were made to management. The employer arranged for an evaluation of the work situation. A letter was written by the employer to the workers after this evaluation was complete. It seems that the fears of the appellant and her co-workers were for the moment quietened.

In August 1991 the appellant fell pregnant. She ceased work, as I have said, in March or April 1992. Her baby, a second son, was born on 29 May 1992. He suffered, from birth, from severe physical defects. These led to his death in November 1993.

When the child was born abnormal, the appellant re-visited the matter of her exposure to soldering dust and gases. She had a blood analysis done in September 1992. It was reported as showing that she then had an elevated level of lead in her blood. The learned magistrate found that the report was in error. He later observed in his reasons for decision that the inaccuracy of the test was not a matter of the defendant's doing; that the respondent was not responsible for that inaccuracy.

In the event, the result of the analysis was conveyed to the plaintiff and she perceived it as confirming her suspicions - that is, that exposure to the particular soldering fumes and dust had poisoned her (and led to her son's birth defects). That was so although later blood tests did not disclose elevated levels of lead.

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 the death of her son in November 1993 the appellant remained away from work for six weeks, apparently a formal mourning period. Then she resumed work and so continued until 13 July 1995. She then ceased her employment, as the magistrate found, for a combination of two reasons. First, she had unsuccessfully sought leave without pay so that she could have an opportunity to get pregnant again and have an uneventful pregnancy. Second, she felt guilty that she had worked whilst exposed to lead - which she believed had caused her son's death. "She found attending her work difficult. Even the mention of her employer's name upset her".

Before ceasing work in July 1995 the appellant had attended a general practitioner in respect of health problems pertinent to the present appeal. The learned magistrate's reasons for decision are not quite clear, but it appears that the first attendance was on 8 November 1993, and that thereafter the appellant consulted him on 41 relevant occasions until January 1996, 28 of those visits taking place on or after 20 March 1995. As I understand it, the general practitioner diagnosed depression, and prescribed antidepressant medication as at June 1995. That doctor described the appellant's condition by July 1995 as getting "pretty desperate". He referred her to a specialist psychiatrist, whom the appellant first consulted on 21 August 1995.

The appellant, it appears, has regularly attended the specialist psychiatrist since first being referred to him in August 1995.

The appellant fell pregnant again in March 1996. Two months later she miscarried. Her symptoms had improved somewhat before she got pregnant and during her pregnancy. After her miscarriage her condition worsened.

The specialist psychiatrist diagnosed the appellant's illness as a morbid grief reaction with moderate to severe depression. In his evidence, in a passage cited by the magistrate, the doctor said this:

"I think she probably would have grieved for the death of her child, as any mother would, but I think she would have recovered from that a lot faster and gotten on with things. It's because there's the belief that she allowed herself to be exposed that she has this morbid belief that she has contributed to the whole process. It's that level of morbid guilt that really gives rise to the severity and the persistence of the depression."

The magistrate summarised the effect of the psychiatrist's evidence this way:

"The persistence and severity of her depression is due in most part ... to her belief that she has contributed to the death of her child by exposing herself to lead. It is added to by the unreasonable refusal, in her view, of the defendant to her request for leave without pay. This refusal adds to her perception of being abused or punished. 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."

Evidence was given by the psychiatrist to whom I have been referring, and others, concerning the existence and extent of the appellant's incapacity for work since July 1995. The magistrate concluded that the appellant had been and still was at the time of the hearing incapacitated for work "which incapacity results from her injury". I shall come back to what his Worship meant by his reference to "her injury".

The appellant's case was pursued before the magistrate on two alternative bases. In each instance the appellant contended that her psychiatric condition was a response to her belief that she allowed herself to be exposed to ingestion of lead, this bringing about her son's abnormalities and death. On one approach the belief was well founded because the appellant had in fact suffered lead poisoning and this had caused her son's abnormalities and death. On the other approach, the belief was not well founded. The appellant genuinely but erroneously believed that she suffered lead poisoning, and that this had caused her son's abnormalities and death. The belief was grounded in her having been exposed to some amount of lead gases and dust in her employment after April or May 1991, and particularly by her reading the warning label to which I earlier referred.

The learned magistrate concluded that the appellant had not made out her case on the first of these bases. He assigned a number of reasons for that conclusion, a conclusion which is not under challenge on this appeal. I refer to just three of the matters canvassed by his Worship: first, he concluded that the appellant's exposure to lead as a gas would have been small. Second, he concluded that the opportunity for the appellant to ingest lead in the form of a dust would have been limited. Third, he rejected the accuracy of the September 1992 test of the appellant's blood.

The second basis of claim; relevant legislative provisions

In order to understand the way in which the learned magistrate approached and resolved the second basis upon which the appellant put her claim I should refer to three provisions of the Act as amended up to and including Act 67/1992. The 1992 Act, I should say, commenced on 1 December 1992. It operated prospectively. The matter was conducted below on the footing that the Act applied in its amended form, notwithstanding that any relevant employment had taken place during 1991. That was the basis upon which the magistrate determined the matter. I raised in argument the question whether the assumption commonly made below was correct. On the footing that the "injury" identified by the magistrate by implication had its onset after 1 December 1992, senior counsel for the respondent contended that the assumption made below was correct. I will assume, without deciding, that that is so. In the event, the three pertinent provisions are these:

82(1) If there is caused to a worker an injury arising out of or

in the course of any employment and if the worker's

employment was a significant contributing factor the

worker shall be entitled to compensation in accordance

(1) In this Act unless inconsistent with the context or

'injury' means any physical or mental injury and

(b) a disease contracted by a worker in the course of

"(1B) In determining for the purposes of this Act whether a

worker's employment was a 'significant contributing

(a) the duration of the worker's current employment;

(d) the probable development of the injury occurring

I have referred to the amending Act No. 67/1992. Relevantly it did these things: first, it inserted the word 'significant' into each of sub-paragraphs (b) and (c) of the definition of "injury". Second, it inserted s.5(1B). Third, it introduced into s.82(1) the words "and if the worker's employment was a significant contributing factor".

The magistrate, focusing upon s.82(1) of the Act, found that the worker had been caused an "injury". He described it this way:

"The plaintiff suffers from a chronic disorder. It is due to her grieving the death of her son. There is an associated depression. ...

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 depends and prolongs her depression by adding to her unfavourable view of herself."

Section 82(1) commences with the words "if there is caused to a worker an injury ... ". That is a reference to an "injury" for the purposes of the Act. The definition of "injury" by its opening words refers to "any physical or mental injury". Injury in that sense embraces what can be conveniently called "the old injury by accident disease injuries": Hill and Bingeman, Principles of Workers' Compensation, p.28; Accident Compensation Commission v. McIntosh [1991] VicRp 65; (1991) 2 V.R. 253 at 263-264 per Murphy, J; Zickar v. MGH Plastics Pty Ltd (1996) 187 C.L.R. 310 at 335 per Toohey, McHugh and Gummow, JJ, and see also per Kirby, J at 346-347. If the alleged injury does not meet the opening words of the definition, and is of the kind described in sub-paragraphs (b) or (c), it is no injury for the purposes of the Act unless the employment was a significant contributing factor thereto. (The broad form of the definition was introduced into the Workers' Compensation Act in 1965, and was the subject of pertinent observations by the Full Court in Edwards v. Lamson Paragon Ltd [1968] VicRp 47; [1968] V.R. 374 at 379 and in Egan v. City of Northcote [1971] V.R. 212 at 213 - though the latter observations must be understood by reference to the particular facts of that case). The reach of sub-paragraph (b), and of sub-paragraph (c) insofar as it refers to "disease", is made apparent by the inclusive definition of "disease" in s.5(1) of the Act.

Two matters follow from what I have said. First, in the case of an injury which could only be of the sub-paragraph (b) or (c) type, it is no injury, and therefore does not fit the opening portion of s.82(1), unless it has first been determined that the employment was a significant contributing factor thereto. Second, in the present case, though in the context of s.82(1), the magistrate decided that the employment did not constitute a significant contributing factor to the injury that he described. Assuming that his Worship did not make conflicting findings, it follows that the injury which he was satisfied the appellant had sustained was an injury falling within the opening words of the definition of "injury", not being a injury of the kind which must qualify, if at all, by reference to one or other of sub-paragraphs (b) or (c) of the definition.

I digress for a moment. It is the consequence of what I have said that, in the case of an injury which must satisfy the requirements of either of sub-paragraphs (b) or (c) of the definition, the words introduced into s.82(1) by Act No. 67/1992 are entirely redundant. Only in the case of an injury satisfying the opening words of the definition, or an injury of the kind described by sub-paragraph (a) of the definition, could the added words in s.82(1) have any application. The second reading speech by which the amendments were introduced does not suggest that this was understood to be the situation. Most often, injury falling within the opening words of the definition will be traumatic injury unarguably significantly contributed to by the employment. The same can be said of the type of injury described by sub-paragraph (a). The possible operation of the added words in s.82(1) appears to be very limited.

A finding that injury arose in the course of the appellant's employment is challenged

I return to the magistrate's conclusions. He found that "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."

In so concluding the magistrate addressed himself to the requirement of s.82(1) that injury must arise out of or in the course of employment. Counsel for the appellant submitted that, upon the facts found by the magistrate, his Worship ought to have concluded that the injury arose out of the employment; not that injury had arisen in the course of the employment. Senior counsel for the respondent submitted that it was wrong for the magistrate to have concluded that injury arose in the course of the employment. He further submitted that the magistrate by implication had found that the injury did not arise out of the employment.

The learned magistrate expressed the positive conclusion to which I have referred. He needed to do no more in order to progress beyond the portion of s.82(1) now under discussion. An injury may arise both out of and in the course of employment. The finding by a tribunal of fact that injury arose in the course of employment does not necessarily imply a finding that it did not arise out of the employment. Senior counsel for the respondent submitted, however, that in circumstances where the magistrate discussed the distinction between the two phrases, and then expressed the conclusion to which I have referred, I ought conclude that his Worship did by implication reject a contention that injury arose out of the employment.

In my opinion, counsel were undoubtedly correct in submitting that the finding that injury had arisen in the course of the employment was untenable. That finding implied a temporal connection between injury and the employment: see, eg, Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 C.L.R. 547 at 566 per Dixon, CJ and the summary of authorities in Fitzgerald v. Ainsby Rubber Rubber Co [1987] VicRp 39; [1987] V.R. 437, particularly at 440-442 per O'Bryan, J. I reject, on the other hand, the submission made by senior counsel for the respondent that his Worship, by implication, found that the injury did not arise out of the employment. Whilst I appreciate the force of the submission, it appears to me that it faces a very considerable barrier. If such a finding had been made, no occasion would have arisen for considering whether the employment significantly contributed to the injury - an exercise thereafter embarked upon by his Worship. Although the language of the legislation considered in Favelle Mort Ltd v. Murray [1976] HCA 13; (1976) 133 C.L.R. 580 (a case cited to his Worship) was somewhat different to the language of the legislation here pertinent, I think it could not be said - and it was not said, apparently, below - that the causal test imposed by the phrase "arising out of" employment was a less stringent test of causation than that imposed by the requirement that employment be "a significant contributing factor" to injury. It might, no doubt, be said that the learned magistrate's later finding that employment was not a significant contributing factor to the injury means that, had he considered the issue, he must have found that injury did not arise out of the employment. But that does not mean, contrary to the submission advanced for the respondent, that by finding that injury had occurred in the course of the appellant's employment his Worship by implication found that injury had not arisen out of the employment.

Where do these conclusions lead? Senior counsel for the respondent submitted that, regardless of the answers I might give to the questions framed by the Master's order, the decision of the magistrate should be upheld on the basis that his Worship erred in finding that there was caused to the worker injury arising in the course of her employment; but was correct in finding, by implication, that injury did not arise out of her employment. The respondent was entitled, counsel submitted, to sustain the final order below on any basis that had then been open to it. It was a corollary of this submission, as I understood it, that whether or not the learned magistrate made the implicit finding sought to be attributed to him, it was not open to him to have found that injury was caused to the appellant arising out of her employment.

There is no doubt that, under the old order to review procedure, a respondent was entitled to sustain the order made on any basis that had been available to it in the Magistrates' Court: Christie v. Permewan, Wright & Co Ltd [1904] HCA 35; (1904) 1 C.L.R. 693 at 697 per Griffith, CJ, Preston Ice & Cool Stores Pty Ltd v. Hawkins [1955] VicLawRp 17; [1955] V.L.R. 89 at 92. In DPP v. Makris (Supreme Court of Victoria, judgment 16 March 1994, unreported) Batt, J held that the same principle applied in the case of appeals brought under s.92 of the Magistrates' Court Act 1989. His Honour noted that DPP v. Webb [1993] VicRp 82; [1993] 2 V.R. 403 provided at least implicit support for such an application of the old authorities. The judgment of Ormiston, J in Webb at 414-417 does, I think, carry such an implication. Both Makris and Webb concerned appeals brought under s.92 of the Magistrates' Court Act - not s.109. I do not consider that there is any material difference in those sections.

The circumstances in which a court will apply the principle emerge from the cases. In Christie the prosecution had been launched by a person who, as a matter of statutory construction, was unauthorised to do so. In Preston Ice, Smith, J held that there had been no evidence to support the ground stated in a notice to quit. There was thus, as counsel had contended, "no course open to the magistrate but to dismiss the complaint". In Makris, Batt, J referred to a situation in which there was "a complete answer to the appeal", to "an unanswerable contention by a respondent". It is in circumstances thus described, illustrations of which are Christie and Preston Ice, that the court would be entitled to dismiss an appeal notwithstanding that the answer to questions of law framed by the appeal was favourable to the appellant. Power to dismiss an appeal in such an event would be available via s.109(6) (or s.92(7) in a criminal matter).

In the present case I have no doubt, as I said earlier, that the learned magistrate erred in finding that injury arose in the course of the worker's employment. The injury which his Worship identified was an injury which had its onset not earlier than the time when the appellant's son died. That injury was temporally unrelated to the employment. The critical passage in his Worship's reasons was apt, if anything, to justify a finding that injury arose out of the appellant's employment. What his Worship found had occurred in the course of the employment may be described as a trigger for the injury; but not as the injury itself.

The appellant is entitled to contend that injury arose out of her employment

The respondent, I consider, is able in the circumstances described to support the final order which was made by its attack upon the particular finding. But that is not, in my opinion, the end of the matter. The fact that the magistrate found that injury had been caused to the worker in the course of her employment was not of critical importance to the appellant before the respondent launched its attack on the finding. The magistrate's disposition of that aspect of that matter did not oblige the appellant to pursue by appeal a question of law designed to establish that the right result (that is, that injury had been caused to the appellant which arose out of or in the course of her employment) was reached by reliance on the wrong qualifying provision. A favourable finding in respect of one or other of the qualifying provisions was good enough. The respondent having attacked the finding favourable to the appellant, however, it appeared to me during the hearing that the appellant ought not be shut out from contending that she had suffered injury arising out of her employment; and that the respondent should not be precluded in turn from contending that the appellant had not suffered injury arising out of her employment - that is, if I rejected the respondent's contention that such a finding had been implicitly made. The way in which the issue(s) could be entertained appeared to be by my giving a direction under R58.13. That was the course taken in DPP v. Hinch (Supreme Court of Victoria, unreported, judgment 5 August 1994) where Mandie, J said this:

"Mr Graham submitted that R58.13 broadly empowered the Court to deal with questions that arise at the hearing whether by way of amendment of the order or by simply directing that the matter be dealt with in the light of the arguments that had been advanced. I doubt that this power would extend to directing the amendment of the Master's Order having regard to the rules and practice in relation to the amendment of orders (see R36.01(1) and (9) and R36.07). I am satisfied, however, that the Rule does empower the Court to direct in an appropriate case that the appeal be decided upon the questions of law identified and canvassed in the arguments advanced, where this is necessary to achieve the effective, complete and economic determination of the appeal and is otherwise just and convenient."

See also Buckman v. Barnawatha Abattoirs (Supreme Court of Victoria, unreported,

judgment 14 July 1994), where Smith, J adopted the same course.

In the event, I considered it appropriate during the hearing, and I still do, that a direction be given enabling the determination of the issue(s). It was not suggested that the formal direction could not be given in the course of final disposition of the appeal.

I heard argument, then, upon the question whether injury "arose out of" the employment. More specifically, senior counsel for the respondent submitted that, properly directed, a finding that injury arose out of the worker's employment was not open; whilst counsel for the appellant submitted that such a finding was not only open, but was compelled.

The learned magistrate adopted as the proper test whether injury arose out of an employment that "the employment needed to be the real, the effective or the proximate cause of the injury". That language was drawn from the judgment of Mason, J in Favelle Mort Ltd v. Murray where his Honour said this (at 598):

" ... the requirement suggested by the words 'to which the employment was a contributing factor' is not as stringent as that suggested by the concept 'arising out of' the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury."

The explanation for the distinction thus drawn is found in the next passage in his Honour's judgment:

"This construction of the definition is to be preferred to the appellant's suggestion that the language in par. (a) should be given a meaning identical with, or similar to, the concept expressed by the words 'arising out of'. There is every reason for giving the statutory definition a different meaning; had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used."

In that case a virus had attacked the worker in the course of his employment. The question was whether the employment was "a contributing factor" to the injury constituted by the invasion of the virus. The court had to give a meaning to the phrase "a contributing factor". The meaning given, contrary to the employer's argument, was different to that conveyed by the phrase "arising out of" the employment. It was unnecessary to decide whether the injury also arose out of the employment.

Mason, J distinguished between the content of the causal requirement of the two phrases, saying that one - that injury "arose out of" employment - was more stringent than the other. Similar observations were also made by Barwick, CJ at 585 and Stephen, J at 594.

For present purposes Favelle Mort v. Murray has this significance: first, it is necessary to understand just what Mason, J (in particular) was saying about causal content of the phrase "arising out of" employment. Only then can the passage in his Honour's judgment to which the learned magistrate referred itself be understood. Second, in that case the definition of "injury" did not qualify the words "contributing factor" by the adjective "significant".

Concerning the first of those matters the principal authorities referred to in Favelle Mort v. Murray were Thom v. Sinclair [1917] A.C. 127 (by Barwick, CJ and Mason, J) and Brooker v. Thomas Borthwick (Australasia) Ltd [1933] A.C. 669 (by Mason, J).

What was said by Lord Haldane in Thom and by Lord Atkin in Brooker explains what Mason, J meant in the first of the passages from Favelle Mort v. Murray which I have cited.

In Thom, an unstable brick wall on adjoining land collapsed onto a shed in which the worker was carrying out her duties. She suffered injuries. It was held that the injury by accident (that was still the requirement of the legislation) arose out of the employment, notwithstanding that the collapse of the shed was brought about by a force unconnected with the employer.

The competing contentions had been, on the one hand, that it was enough if injury by accident had been inflicted on the workman which would not have happened if his employment had not caused him to be at the place of the accident at the time of its happening. The competing contention had been that the accident must have happened due to something the workman was doing in the course of his employment or by reason of a peculiar danger to which the nature of the employment exposed him. The second of these formulations was rejected. The first was accepted, subject to the gloss that the injury must have arisen because of "some special circumstance" attending the employment of the workman at the particular place at the particular time - it being enough that his duties required him to be there.

In the context just described, Lord Haldane said this:

" ... there are no doubt many kinds of accident which do not in any sense arise out of the employment. There may be no reason why such accidents should happen to a man in one situation rather than to a man in another, and it may therefore be impossible to pronounce truly that they are so connected with the employment as to have arisen out of it. But where a man is ordered to work under a particular roof and that roof falls in on him, it is not clear that the accident belongs to that category. If the particular accident would not have happened to him had he not been employed to work under the particular roof, there seems to be nothing in the language of the Act which precludes an occurrence from being held within it which satisfies the test proposed by the first of the alternative constructions modified to the extent I have suggested. The falling of the particular roof could only happen in one place, and the presence there of the person injured was due to the employment. The question really turns on the character of the causation through the employment which is required by the words 'arising out of'. Now it is to be observed that it is the employment which is pointed to as to be the distinctive cause, and not any particular kind of physical occurrence. The condition is that the employment is to give rise to the circumstance of injury by accident. If, therefore, the statute when read as a whole excludes the necessity of looking for remoter causes, such as some failure in duty on the part of the employer as a condition of his liability, and treats him rather as in a position analogous to that of a mere insurer, the question becomes quite a simple one. Has the accident arisen because the claimant was employed in the particular spot on which the roof fell? If so, the accident has arisen out of the employment, and there is no necessity to go back in the search for causes to anything more remote than the immediate event, the mere fall of the roof, and there need be no other connection between what happened and the nature of the work in which the injured person was engaged."

Later in his speech, his Lordship referred to the concepts of proximate and remoter cause. He said this:

" ... What, then, is the special point of view which the Workmen's Compensation Act of 1906 directs us to take in the practical selection of the circumstances which are to determine whether an event has arisen out of the employment which has amounted to injury by accident within the meaning of the Act? I think that the Court is directed to look at what has happened proximately, and not to search for causes or conditions lying behind, as would be the case if negligence on the part of the employer had to be established."

" ... I am of opinion that the governing purpose of the statute makes it as irrelevant to look beyond the immediate cause of the accident for explanations or for remoter causes as it would be in a case arising on a policy of marine insurance, provided that the circumstances bring the immediate cause within the definition. Where the question is one of the construction of an obligation to insure against accident the law looks to the proxima causa of the accident as decisive and does not look behind it."

In Brooker, an earthquake caused the collapse of buildings. Debris fell onto three workers. Two of the men were at work on the premises in which they were employed. The third was in a public street performing his duty as a hotel porter. A fourth man lost his balance because of the earthquake, and fell down an incline at his work premises. In each case it was held that injury arose out of the employment. Lord Atkin, having referred approvingly to Lord Haldane's speech in Thom, said this, at 676-677:

"The principle which emerges seems to be clear. The accident must be connected with the employment: must arise 'out of' it. If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connection with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. So that if the roof or walls fall upon him, or he slips upon the premises, there is no need to make further inquiry as to why the accident happened".

His Lordship explained the working-out of the principle that the accident must be "connected with the employment" in other contexts. Thus, (at 677)

"This principle appears to be the foundation of the street risk decision, Dennis v. A.J. White & Co. [1917] A.C. 479, which finally decided that a workman employed to go into the streets on his master's business who is injured by a risk of the streets establishes an accident arising 'out of' the employment, though the risk was shared by all members of the public using the streets in like circumstances. The same principle is adopted in Upton v. Great Central Ry. Co. [1924] A.C. 302, where the workman slipped on a railway platform and was held entitled to compensation".

His Lordship summarised the matter as follows (at 678-679):

"The substance of the matter is that in every case the words of the section alone are to be considered: 'arising out of and in the course of the employment.' It is with respect misleading to apply other terms whether derived from insurance law or other sources. It is not satisfactory, if a slight criticism of Lord Haldane's words may be permitted, to speak even of the proximate cause as determining the matter. In the case of death by lightning few could doubt that from an insurance point of view lightning would be the proximate cause whether the assured were or were not specially exposed to lightning, yet the problem - 'arising out of' - is solved by considering the special exposure. The association therefore of the employment with the accident may be even closer than that of proximate cause. Whether 'connected with' or as by Lord Loreburn in Dennis v. A.J. White & Co. 'incidental to' is the better term need not be decided".

His Lordship's reference to "proximate cause", tracing back to Lord Haldane's speech in Thom, and taken up by Mason, J in Favelle Mort v. Murray, is seen to have a particular focus. It is this: that determination of the proximate cause of injury ('proximate' being given a contextual meaning by Lord Haldane) will not always determine the question whether injury arose out of an employment -whether there was a sufficient connection between injury and employment.

Properly understood, the description by Mason, J of the circumstances in which injury will arise out of an employment was a restatement of old principle, expressed in factually exceptional cases, about the necessary connection between employment and injury. That principle did not, in my opinion, compel a conclusion that in the present case injury did not arise out of the worker's employment. To the contrary, it appears to me that there was an extremely powerful argument that the injury which the learned magistrate found had been caused to the worker was intimately connected with aspects of the employment - the use of solder and the warning on the solder packet - and so arose out of the employment. Recognising that one cannot argue from the facts of one case to another, it might nonetheless be thought that here the connection between employment and injury was more direct than in either of Thom or Brooker - in each of which cases the claimants succeeded.

I turn to the precise question which was determined in Favelle Mort v. Murray - the meaning of the definition of "injury" in the legislation there under consideration. Barwick, CJ, Stephen and Mason JJ all said that the requirement suggested by the words "to which the employment was a contributing factor" was less stringent than was suggested by the concept "arising out of" an employment. Mason, J made the point that there was every reason for giving different words a different meaning. How do these conclusions bear, if at all, upon the words "to which the employment was a significant contributing factor"?

In my opinion the following propositions may be stated: first, the present language by intention and effect requires a more substantial causal link between employment and injury than did the language considered by the High Court in Favelle Mort v. Murray.

Second, there remains a distinction between the concepts of injury "to which the employment was a significant contributing factor" and injury "arising out of" employment. What Mason, J said in Favelle Mort v. Murray about the use of different language holds good.

Third, the requirement that injury "arise out of" employment remains more stringent than the requirement that employment be "a significant contributing factor" to injury. It is possible to envisage situations in which injury might not satisfy the former test yet would satisfy the latter test. It might be the case, to take an example, that a man struck directly by a bolt of lightning at his workplace would not (consonant with the old authorities) suffer injury arising out of his employment; but that his employment - regardless that his duties did not require him to be at the critical place at the critical time - would be a significant contributing factor to his injury.

Fourth, the structure of s.82(1) does not tell against my conclusion that the requirement that injury "arise out of" employment is more stringent than the requirement that employment be "a significant contributing factor" to injury. The words inserted into s.82(1) by the 1992 amending Act were, as the second reading speech shows, inserted for effect. The Minister said that the word "significant"

"has been inserted in the definition of injury and elsewhere in the Act to emphasise the point that workplace injuries will be compensable - only if there is a strong connection between work and the injury".

(Hansard, Council, 13 November 1992 p.608; my underlining).

" ... 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 question 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'."

It was not suggested that in this passage there was any misdirection; and in my opinion there was not.

Sixth, concerning the meaning of the word "significant", his Worship referred to what had been said by two judges in the County Court. In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit, a judge of great experience in the area of workers' compensation, had said this:

"I consider a broad meaning can only be given to the words 'significant contributing factor' as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact."

In Allman v. Major Finance and Engineering Pty Ltd (County Court, judgment 14 March 1997) Judge Strong had described "significant" as meaning "of considerable amount of effect".

In my respectful opinion these dicta assist in fleshing out the concept conveyed by the words "a significant contributing factor". What Judge Rendit said emphasised the indefinite "a" preceding "contributing factor"; which, in the context of the phrase "a significant factor" should be taken to imply that more than one factor may significantly contribute to injury. What Judge Strong said was particularly relevant to the adjective "significant", considered discretely.

There is an area of overlap between the two dicta. Within the area of overlap there is, I think, a point of disagreement. The minimum requirement of the Meddis formulation is that the contribution of employment to injury be "more than de minimis". The single requirement of the Allman formulation is that such contribution be "of considerable amount or effect". As presently advised (the matter was not much argued, although the questions framed by the Master require an understanding of the statutory requirement), I consider that the Allman formulation more accurately reflects the sense of the legislation. The adjective which parliament chose to insert was "significant" not "material", nor the phrase "to a recognisable degree". It is an adjective which implies a contribution of greater dimension that that conjured up by the other formulations, each of which has its place in the history of workers' compensation legislation. What amount or effect will be "considerable" in any particular case will, of course, be a matter for determination on the facts; the determination being ordinarily inviolable. It remains only to say that, at a practical as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real.

Seventh, Barwick, CJ said in Favelle Mort v. Murray (at 584) that the requirement that employment be "a contributing factor" to injury did not make it necessary that "the nature of anything (the worker) was required to do by his employment contributed to cause his morbid physical condition". By contrast, in deciding whether injury within sub-paragraph (b) or (c) of the present definition has been caused to a worker, the nature of employment is a matter that must be considered: s.5(1B)(b) and (c). The learned magistrate wrongly appears to have treated Barwick, CJ as having said that the "particular nature of work done" was irrelevant to the definition of "injury" at issue in Favelle Mort v. Murray; and to have contrasted that with the situation under the present definition of injury. But in fact his Honour dealt with what was necessary, not with what could be relevant.

The learned magistrate referred to Favelle Mort Ltd v. Murray, in the connection just mentioned, when considering the meaning of the words "to which the employment is a significant contributing factor". Notwithstanding his Worship's misstatement of the effect of the dictum of Barwick, CJ, it is the case, as I said a moment ago, that in the context of the present legislation the nature of employment is a matter that must be considered: s.5(1B)(b) and (c). To that extent his Worship rightly distinguished Favelle Mort v. Murray.

Eighth, the learned magistrate implied that, in considering whether employment is a significant contributing factor to injury, enquiry is not necessarily confined to the matters specified in s.5(1B). That is undoubtedly the case.

"[Paragraphs] (e), (f) and (g) [of s.5(1B)] 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.

Against the background of the nine propositions, I turn to consider the way in which his Worship disposed of the question whether the employment was a significant contributing factor to the injury. He said this:

"Turning to the factors contained in s.5(1B), I doubt (a) can be read to include the period during which the plaintiff was employed by the defendant at its Broadmeadows factory so as to enable the conclusion that the period was sufficiently long for the plaintiff to believe reasonably that she had acquired enough lead to damage her unborn child. If it could be so construed I would agree with the sufficiency of its length to raise the plaintiff's belief.

For the purposes of this case, (b) and (c) cover the same ground. The plaintiff's work involved using solder which contained lead. Her work was performed in conditions where she believed she was inhaling lead fumes. The manufacturer of a particular brand of lead warned that use in the first three months of pregnancy might cause abnormalities with a pregnancy. On the other hand, the evidence does not establish that the plaintiff acquired a burden of lead in her body which caused her son's abnormalities and death. The inaccuracy of the September test is not a matter of the defendant's doing. Nor can it be said is the 1996 miscarriage and its reinforcement of the plaintiff's view of herself.

With respect to (d), if the employment had not taken place then the plaintiff would probably have not have 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. None of (e), (f) and (g) is relevant.

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 tests. 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."

First, the meaning of the paragraph in which his Worship refers to s.5(1B)(a) is elusive. Whether he considered that the sub-paragraph worked for or against the appellant is unclear. It may be that he attempted to give the sub-paragraph operation by considering whether the period of employment was long enough for the appellant to have reasonably formed a belief that she had been lead poisoned. Nothing in workers' compensation law suggests that an objective standard should be set up when considering the compensability of injury.

Second, the learned magistrate considered, as I understand it, that the appellant's use of solder in the particular work conditions, and the label on the solder packet that she read, were relevant to sub-paragraphs (b) and (c). The relevance of those facts lay in his Worship's earlier finding that "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."

It was correct for the learned magistrate to treat the facts to which I have just referred as being relevant to sub-paragraphs (b) and (c).

Third, apparently in connection with sub-paragraphs (b) and (c) his Worship referred to absence of lead poisoning in fact, the inaccuracy of the September 1992 blood test, and the 1996 miscarriage. Each of those matters was, on the evidence, relevant to the causation of injury. Each was rightly considered; but not in the context of paragraphs (b) and/or (c). I add this: counsel for the appellant submitted that his Worship's references to matters being "not ... of the defendant's doing", and, later, to the employment "not (being) responsible" for those matters, wrongly brought into the analysis a concept of blame. I think that is not so. His Worship was saying no more, as I read it, than that certain relevant factors did not bear the stamp of employment contribution.

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".

Fifth, the learned magistrate summarised the factors bearing upon the causation of injury as follows:

The first two factors were intimately connected with the employment. Not so the last three factors. It was in this context that the link between employment and injury was described by his Worship as tenuous, and as falling short of constituting a significant contributing factor.

The first question framed by the learned Master's order proposes, in effect, that the decision appealed from was one that no reasonable person could have made. An appellant who seeks a favourable answer to such a question carries a heavy burden, as the useful summary of the authorities by McDonald, J in Keep v. Pozzebon (judgment 1 September 1994, unreported) shows. On the footing, then, that the appellant had to satisfy the learned magistrate that there was an employment contribution to her injury and that it was of considerable amount or effect - a requirement which could be satisfied even if there were other causal factors meeting that description - is the decision inviolable?

The parties argued the question upon the findings made by the learned magistrate. 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.

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 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.

Strictly, it is immaterial to conjecture why his Worship made the finding, untenable in my opinion, which he did. That said, the conclusion which I have reached can be held more comfortably if an explanation does suggest itself. In that context, it does appear to me, with respect, that his Worship's analysis and application of this difficult legislation to the facts of the case was not free of error. First, so far as I can see his Worship never fixed upon a meaning to be given to the phrase "a significant contributing factor". Second, in striving to give some application to s.5(1B)(a), his Worship appears to have inappropriately applied an objective test of belief. Third, his Worship appears to have concluded that, absent the presence of circumstances falling within sub-paragraphs (e), (f) or (g) - that is, facts which because they were present would work to the disadvantage of a worker - those sub-paragraphs were irrelevant. Fourth, the true question was whether, considering the presence or absence of circumstances fitting each of sub-paragraphs (a) to (g), and such other findings as were relevant, that worker had shown that a factor which contributed to her injury to a considerable amount or effect was her employment. Having regard to findings to which I have earlier referred it was, with respect, incorrect to approach final resolution of the question from a standpoint simply that "the employment was responsible for two things - her use of solder and her reading of a warning on a packet".

I have referred a number of times to s.5(1B) in what I have just said. It is, I think, apparent from its language that it was framed with the question of compensability of degenerative conditions in mind. So much is evident, indeed, from the parliamentary debates. That creates practical difficulties. It must be the case that, in particular instances, the presence or absence of circumstances fitting within a particular sub-paragraph will be of quite different import. In the case of a worker whose arm is traumatically injured on his first day at work, paragraph (a) could not tell against compensability. Contrast, perhaps, the case of a shearer injuring his back on his first day of work in a particular shed. Take, next, a case involving cardiac disease. The existence of hereditary risks - see sub-paragraph (e) - could go in the balance against a worker; but the absence of hereditary risks could tell in the worker's favour. Consider, next, sub-paragraph (g). In a case of degenerative spinal disease suffered by a labourer, the circumstance that the worker spent his spare time cutting and stacking wood could possibly go into the balance against him. But the circumstance that he indulged in only moderate exercise in is spare time might very well go in his favour. All this emphasises the care that needs to be taken in applying the sub-section - a sub-section in which there are constant shifts in language and use of inexact terminology. It needs to be steadily borne in mind, I consider, that the sub-section exists to assist in resolving the question whether an employment was a significant contributing factor to injury, not as an end in itself. If the larger question is kept in focus, the possible relevance of the presence or absence of circumstances fitting sub-paragraphs (a) to (g) will be the more apparent.

It is not necessary for me to deal with either of the second and third questions framed by the learned Master. I pass to consideration of what should now happen in this matter. In short, in my opinion, the appeal must be allowed and the matter remitted to the Magistrates' Court, differently constituted, for hearing and determination in accordance with my reasons. I have considered whether I am able to resolve the substance of the dispute. In my view I cannot do so. The only live question, on my analysis, is whether the injury arose out of the employment. That became a live issue because the respondent successfully challenged his Worship's finding that injury arose in the course of the employment, but failed to satisfy me that the learned magistrate held, or must have held, that injury did not arise out of the employment. Had the magistrate been compelled to hold that injury did arise out of the employment, I would have been able to resolve the substance of the matter. Certainly, in my opinion, his Worship's findings gave the appellant a very strong case for arguing that her injury arose out of the employment. My analysis of the question whether the employment was a significant contributing factor to the injury (although the answer to that question is not decisive whether injury arose out of the employment), and my example of a case in which it could perhaps be said that employment was a significant contributing factor to injury but that injury did not arise out of employment, show the strength of the appellant's position. But in the end I am not persuaded that the appellant must have succeeded upon the issue. It having only become a live issue during the appeal, it must be dealt with. In the circumstances, that can only be by a fresh hearing in the Magistrates' Court.

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.

Subject to anything that counsel may say I shall give a direction and make orders in accordance with the following minutes:

Direct that, pursuant to R58.13 of Chapter 1, the questions 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.

2. The final order of the Magistrates' Court made as at 4 February 1998 be set aside.

3. The proceeding be remitted for re-hearing and determination by the Magistrates' Court, differently constituted, in accordance with my reasons.

5. The costs of the hearing in the Magistrates' Court the subject of the final order dated 4 February 1998 be costs in the cause.

I will, if asked, grant the respondent a certificate under the Appeal Costs Act.

Compensation Act 1985

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (121 paragraphs)

Parties

Legislation Cited (2)