Cook v Midpart Pty Ltd t/as McDonalds Forster & Anor [2008] HCATrans 402 (5 December 2008)

Last Updated: 8 December 2008

[2008] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S342 of 2008

B e t w e e n -

GEOFFREY GORDON COOK

Applicant

and

MIDPART PTY LTD T/AS McDONALDS FORSTER

First Respondent

GREAT LAKES AGGREGATES PTY LIMITED

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 DECEMBER 2008, AT 10.38 AM

Copyright in the High Court of Australia
MR J.L. GLISSAN, QC: I appear with my learned friend, MR B.G. McMANAMEY for the applicant, if the Court please. (instructed by Stacks/Forster)

MR L. KING, SC: I appear with MR J.W. CATSANOS for the first respondent. (instructed by Moray & Agnew)

FRENCH CJ: Yes, Mr Glissan?

MR GLISSAN: Your Honours, this raises a short but important point in this definition of “injury” for the purpose of Workers Compensation Acts effectively generally in the Commonwealth. There are similar provisions as we have indicated throughout the various statutes in the States and Territories. The point that is raised is clearly raised and clearly set out in the judgment of the Court of Appeal. The error that is pointed to is the use of the notion of deterioration, aggravation or exacerbation. Perhaps I can use as a portmanteau term in these submissions “deterioration” - encompassing both natural progression of a disease and the aggravation or deterioration caused by employment.

The clear thrust of all the statutory provisions is that an injury is occasioned where such a disease is made worse, not where it becomes worse. The Court of Appeal in this case, in our submission, perpetuated an error made by the Acting Deputy President of the Compensation Tribunal by eliding to different propositions, namely that the worsening of a morbid condition by external stimuli - - -

GUMMOW J: Can I just interrupt you for a minute, Mr Glissan? The second respondent should not really be a party, should it?

MR GLISSAN: No, the second respondent was - - -

GUMMOW J: So if you were to succeed in getting grant of special leave, they could be excused?

MR GLISSAN: Indeed, there is no appearance by the second respondent here today, your Honour, and indeed the Court of Appeal noted that that was the situation and they were only brought in - - -

GUMMOW J: Application book 33 indicates that, I think.

MR GLISSAN: Yes.

FRENCH CJ: They put in a summary of argument, but - - -

MR GLISSAN: No, that is right, your Honour. So the situation is that they have no part in these proceedings.

GUMMOW J: The contest in this Court would be between yourself and Mr King.

MR GLISSAN: And Mr King’s client. That is exactly right. Your Honour, the issue is an incredibly narrow, but an important one. It is one which affects many, many cases because progressive disease cases form a significant body of the matters before the various Workers Compensation Tribunals and courts around the country. The question which needs to be considered has not been considered by this Court since the various statutory provisions were introduced which brought into the statutory regimes the concept of exacerbation or acceleration and the nature of injury that is set out. If I can take your Honours, just briefly to the Act, which is at application book 28 and 29.

GUMMOW J: Section 9A is the critical one, is it not?

MR GLISSAN: It is, but your Honour, it is qualified by this, that “injury” is defined in 4. “Injury” is inclusively defined, but relevantly is “aggravation”, et cetera, where the employment was a contributing factor. So that is a sine qua non. Unless the injury is a contributing factor, it is not only a sine qua non, but is also sufficient to establish injury and it is for that reason that we say where the Court of Appeal falls into error, which legitimately attracts a grant of special leave, is at paragraph 41. If I can take your Honours to page 50 because taking the definition of “injury” in 4 and the circumstances in which the injury becomes compensable in 9A, the court in 41 elides two different propositions. It says:

it can be seen that the notion of deterioration . . . could encompass the worsening of the morbid condition by external stimuli and also by the general nature or progression of the disease.

That is simply wrong. It is wrong because it does not comply with the statutory definition which says injury is where the deterioration is occasioned by not the general nature or progression of the disease, but by the worsening of the morbid - - -

GUMMOW J: Pardon me, Mr Glissan, what was the particular passage in the reasons that you were contrasting with the definition of “injury” itself when you said did not measure the definition.

MR GLISSAN: I said at 41, your Honour, but it starts at 39 of the reasons at 48 of the application book. It is interesting because the Court of Appeal in this case was only referred by counsel appearing before it to one case - that is noted by the President - paragraph 27 of the application book where Murray v Shillingsworth is referred to and no other authorities were referred to this point by counsel, whether for Mr Cook or by Midpart. In the course of the judgment, his Honour the President – I hesitate to use the expression “trawls through” - but I identified a number of earlier authorities in - - -

FRENCH CJ: “Comprehensively deals with”, I think, is a better way of putting it.

MR GLISSAN: If your Honour please, although I am more inclined to be a little more critical than that – but identified, perhaps I can say, using a term as neutral as I can, a number of other authorities, but seems to have paid scant regard to what they in fact say, including earlier decisions of this Court, and we have highlighted the particular passages, not so much Mr Justice Moffitt, but more particularly what had been said by Justice Kitto and Justice Windeyer - - -

GUMMOW J: Well, I suppose we have to consider Murray v Shillingsworth, do we not?

MR GLISSAN: But we do, yes, indeed.

GUMMOW J: Do you dispute that, or say it is not relevant or - - -

MR GLISSAN: No, but we dispute the conclusion that it does not support the argument as is set out by Justice Allsop at paragraph 50, and, indeed, we have dealt with that in the submissions at paragraph 35 which your Honours will find at application book 67 where we deal with what Justice Einstein, Justice Hodgson and Justice Santow in fact said and set out those passages and, indeed, it is clear that what their Honours there say:

the only compensation is for the effect of the aggravation and not for the effect of the original non-aggravated disease -

and talk about substantial contributing factor relating “to the acceleration” and “not the underlying condition”. That is the dichotomy in the propositions that has been either elided or conflated in the judgment of the Court of Appeal into a single proposition. That is the error that we identify, the error which we rely on - - -

GUMMOW J: Assuming there might be something in that, how is that measured against the facts in this case?

MR GLISSAN: Well, the facts in this case are actually quite helpful from that perspective, your Honour. There is an assertion in his Honour the President’s judgment towards the end that the Acting Deputy President had taken the correct approach and that had concluded as a matter of fact that employment was a - - -

GUMMOW J: Now, just explain to us how the structure works. It comes up on some form of appeal or review - - -

MR GLISSAN: It is all done on the papers, as I understand it, your Honour. It is not something with which I am terribly familiar, directly, but there is an application made for compensation which is referred to an arbitrator. The arbitrator made an award and made findings of fact in favour of the present applicant for leave. There was then an - - -

FRENCH CJ: It is a decision of the Workers Compensation Commission, in effect.

MR GLISSAN: That is so. There was then an appeal from that which was decided without any argument other than material that was put forward, in other words, decided on the papers by an Acting Deputy President called Handley, no relation I understand - - -

FRENCH CJ: Of the Commission?

MR GLISSAN: Yes.

FRENCH CJ: It is an internal appeal structure.

GUMMOW J: And is it a full review?

MR GLISSAN: Yes, it is a full review but on the papers. There is no argument - - -

GUMMOW J: I am just asking you all these questions because there is maybe an administrative law hiccup lurking in all of this, and then what happens?

MR GLISSAN: Well, from there the Deputy President’s decision is appealable and the appeal goes to the Court of Appeal.

GUMMOW J: On a question of law?

MR GLISSAN: On a question of law.

FRENCH CJ: All the grounds are erred in law in this.

MR GLISSAN: Yes, but of course, it is a plenary appeal in the sense that where the law and fact are interrelated and a sufficiently gross error of fact would justify it, but there is no question about this being a question of law in this case. The question is clearly, frankly, a question of construction and the proper application of the statute to the facts. The strength of the case is the fact that there is really no factual dispute, and we set that out in the application book clearly in our submissions and I do not want to take your Honours through those unnecessarily - in paragraphs 8 and thereafter and in the statement of argument.

So the point is narrow. To the extent that it needs any support at all, there is the second ground which has been propounded in the application for special leave which is the procedural fairness ground. That, we put forward, simply, bluntly, and without any apology as an error of fact in the Court of Appeal. The court took the view that it was open to it to decide an issue which had not been argued by the appellant below on the basis that the appellant had in fact made submissions to the court and, therefore, had engaged the issue. That was simply wrong in fact. The submissions to which the President refers in the judgment were those of the second respondent, not those of the appellant, who had in fact never addressed the issue and it had never been agitated.

So, to that extent and to the extent that a question of denial of natural justice and miscarriage of justice is concerned, if the Court was otherwise minded or otherwise tempted to be minded, if I could say, to grant special leave, we would pray that in aid as an additional reason for the granting of leave in the case.

GUMMOW J: Do you say the Court of Appeal misapplied its earlier decision in Shillingsworth?

MR GLISSAN: Yes, unhesitatingly.

GUMMOW J: How?

MR GLISSAN: Because the earlier decision in Shillingsworth was not to the same effect as the decision in this case. The earlier decision in Shillingsworth was directed towards a determination which applied the statute as it was intended to be read. It did not apply the exacerbation or deterioration of a disease to the natural progression of the disease, but confined it to the additional deterioration that was occasioned by the employment. In other words, what the statute requires for the purpose of identifying an injury is that. That is what the court did in Shillingsworth. It is not what the court did here and that is the error, and really that, your Honours, that is the whole of the point. We have set it out in detail, I do not know that I need to use any more of the Court’s time in relation to it. Those are the submissions; that is the point. It is a matter, as we say, of general importance. If your Honours please.

FRENCH CJ: Thank you, Mr Glissan. Yes, Mr King.

MR KING: Your Honours, I will work backwards if I may and deal with my learned friend’s procedural fairness point. Page 4 of the application book, paragraph 16, shows that the point about substantial contributing factor was raised before the arbitrator by the second respondent, but as the case moved on through the second tier, the application book at 13, as the President, Justice Allsop noted - paragraph 12 “Issues in Dispute” before the Deputy President, was squarely raised by my client in ground (3) “the Arbitrator erred in law”, the substantial contributing factor and it was dealt with by the Deputy President if you go to page 19 of the application book, paragraph 42 up the top, he records the argument and it moves on into paragraph 43 and shows your Honours a matter I will come back to that section 9A is indeed critical and does squarely throw up relativities that you have to look at other causes if they are present to consider whether a particular cause can be said to be substantial in the overall context.

But, your Honours, we do not deal with this procedural point in our written argument because we rather complacently took the view that it was not vigorously pressed. It does not appear in the primary grounds of appeal put to the Court of Appeal which are in the book at pages 22 and 23 and, your Honours, the nature of the progress of this case is also relevant, as my learned friend has correctly informed the court. You start off with an arbitration before an arbitrator, then there is a general right of review by a Deputy President and the general nature of that review is in fact well captured by the Court of Appeal in paragraph 10 at page 35 of the book.

What the Deputy President had to do was to give his fresh decision. The point was argued before him as I have shown, and the provision, section 9A, is in imperative terms. It is almost a direction to a judicial officer or quasi-judicial officer. It had to be dealt with and it is very conspicuously absent from my learned friends’ argument, your Honours, that they say that the course of the case would have been different in some way if this point had been taken, not by the second respondent, but by my client before the arbitrator. They have not suggested that things would have been different and in my submissions, your Honour, my learned friends were right to put this procedural point faintly because there is nothing in it and nothing in the for the very reason that the President gave in his reasons.

GUMMOW J: Mr King, I am right in thinking, am I not, that Mr Cook obtained an award against Great Lakes, and as far as we know, that is still in force and they have disappeared from the controversy?

MR KING: That is right.

GUMMOW J: What he wants is an award against Midpart as well.

MR KING: Yes.

FRENCH CJ: It was a consent award, I think in this case.

MR KING: There was a consent award against Great Lakes. Your Honours, it is - - -

GUMMOW J: But would the making of an award against Midpart draw back into consideration the concurrency of the award against Great Lakes?

MR KING: It is possible. My learned friend, with all respect to Mr Glissan, was a little optimistic in saying that Great Lakes would not be embroiled. Your Honours, it is conceivable that if leave were granted and an appeal succeeded, this would all have to be looked at again and the relative effect of the first injury, the relative effect of the work with the McDonald’s restaurant, Midpart, and any other cause would require - - -

GUMMOW J: Just looking at page 60 of the application book, it looks as if it would have to go back to the Commission, and Great Lakes might reappear at that stage.

MR KING: That is right, that is what I am trying to say, your Honour. There is no escape from that, but, your Honours, section 9A is critical and it emphasises the essentially factual nature of what is before the Court. That is what the learned President squarely said. If your Honours go to pages 52 and 53 of the application book, at the bottom of 52, paragraph 51, the President sets everything out and at the head of 53, he says that the Deputy President:

directed his attention not to the whole incapacity, but to the aggravated and exacerbated condition. This was the correct approach.

Then you see in bold:

as a matter of fact -

next paragraph:

This was a factual conclusion open on the evidence.

Your Honours, if you would jump back to page 19 of the book again, it is at paragraph 43, your Honours see what has really been the seminal decision on 9A of the New South Wales Court of Appeal – Mercer’s Case where you see that Judge Bishop in the Compensation Court back in the old days before the new Workers Compensation Commission with arbitration and internal presidential appeal - this was the old Compensation Court where the parties got a hearing before a judge to kick off with:

“remembering that word is used in relative sense, recognising that other causative factors may be present. Section 9A does not require –

et cetera. It is plainly factual and it plainly demands an examination of concurrent causes to see which predominates over what, with respect. Your Honours, 9A(2)(e) and (f), if your Honours look at page 29 of the application book, you will see those subsections down at line 40. There is a statutory direction to look at other things which is cast in terms, certainly wide enough to embrace the natural progression of a disease if it were not obvious as a matter of logic that that sort of thing is one of the contextual relativities.

Your Honours, my learned friend said he was putting things bluntly. I will take a page from his book and say this, that the lack of substance in the argument that he wants this Court to entertain can be demonstrated by saying that he speaks of prior authorities including decisions of this Court, but there is no indication that this point was ever taken back in the old days prior to 9A, yet plainly, at a factual level and on a case-by-case basis, where you have a disease which would be perhaps progressing at any given case of its own force, perhaps affected by trauma, be it frank trauma, or the nature of some employment, would obviously, in any given case, be likely to be something that an insurance company or an injured worker would want to raise, the interaction between the external trauma and the disease, but you will never find it dealt with. The position has only become plainer, with respect, since 9A came along. Section 9A commands this factual inquiry.

Your Honours, I would like to finish by endeavouring to correct, perhaps, an impression that my learned friend has implanted in your Honours’ minds about Murray v Shillingsworth. First of all, it is not a decision of the Court of Appeal. It is Justice Einstein speaking for the Court of Appeal. Your Honours, the passage to which attention needs to be directed is at page 464. It follows paragraph 58 on that page in which Mercer and 9A is spoken of, but in those seven short paragraphs, which are the critical paragraphs and which are specifically mentioned in Justice Allsop’s decision, the point that my learned friends say arises, does not arise. Justice Allsop was correct to deal with it as he did in his reasons. Your Honours, those are my submissions in support of a proposition that this is not a suitable case for special leave.

FRENCH CJ: Thank you, Mr King. Yes, Mr Glissan?

MR GLISSAN: Your Honours, if I can just pick up that Murray v Shillingsworth point very briefly and take your Honours to 53 of the application book. What the President says there is this, that the Deputy President directed his attention not to the whole incapacity, but to the aggravated and exacerbated condition. This was the correct approach.

If one then goes to Murray v Shillingsworth in the passage which we set out on page 67 of the application book at paragraph 35 of our submissions, that submission was made to the Court of Appeal and it was dealt with in this way:

These submissions are misconceived. They fail to recognise that in the circumstance concerning an integer dealt with by s4(b)(ii) (such as an aggravation of a disease) the only compensation is for the effect of the aggravation and not for the effect of the original non-aggravated disease. His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this.

Now, they are directly in counterpoint. One says you do not deal with the underlying condition, the other says you do. The difficulty that is occasioned – and I go back to this proposition and I will do so only very, very briefly – the confusion between injury, as defined, being limited to an exacerbation of a disease caused by employment, unless there is such, there is no injury. So the natural progression of the disease does not satisfy the definition of “injury”. It cannot therefore be imported into the consideration. It can be taken into consideration in determining the final facts or question of whether or not the employment is a substantial contributing factor, but only to this extent, depending on how one reads it, and this is where the statute really needs to be properly considered.

If injury is only injury which is occasioned by an aggravation caused by employment – and that is the definition – you have to ask yourself the question, what can it be, other than a substantial contributing factor to that injury if the injury is defined as being that itself. In other words, there is an element of circularity in that that does need explanation and if you then go back to the passage in Mercer that my learned friend referred the Court to at page 19 of the book which is set out and note that 9A does not require that employment be the substantial contributing cause, but only a substantial contributing cause, then our submission is that the resolution of the question really can only be one way once the determination which was accepted by
the Acting Deputy President is made, that there was an aggravation or deterioration brought about by employment.

The only other thing that arises out of that is in the context of his judgment, while it is said by the President in that same passage to which my learned friend referred at page 53 of the book:

Midpart was a contributing factor, he was unable to conclude, as a matter of fact, that such employment was a substantial contributing factor -

We dealt with that at paragraph 8 of the submissions at page 62 of the book where we set out in summary what the Acting Deputy President did, and the fact is he did not overturn the original finding of injury, other than employment. The only contributing factor that he identified was the natural progression of the constitutional degenerative disease which does not satisfy the definition of “injury” and that just throws up starkly the need for this to be resolved, particularly where similar provisions exist in every State and Territory.

FRENCH CJ: Thank you, Mr Glissan.

MR GLISSAN: If your Honour pleases.

FRENCH CJ: The decision of the Court of Appeal in this case does not disclose any error of principle in the application of the provisions of the Workers Compensation Act. The case turned upon its own facts.

Special leave will be refused with costs.

We will adjourn to reconstitute for the next matters.

AT 11.06 AM THE MATTER WAS CONCLUDED